The Collected Works of Lysander Spooner (1808-1887)

Lysander Spooner (1808-1887)

Lysander Spooner (1808-1887) was a legal theorist, abolitionist, and radical individualist who started his own mail company in order to challenge the monopoly held by the US government. He wrote on the constitutionality of slavery, natural law, trial by jury, how binding was the authority of the US Constitution over individuals, intellectual property, paper currency, and banking.

A full list of his Collected Works in both chronological order of date of publication (useful for seeing how his interests and ideas changed over time) and a thematic list by topic can be found here. The numbers refer to the work’s place in the chronological order.

More information about Spooner and his work:

- Spooner's main bio page: </people/4664>.

- School of Thought: Abolition of Slavery </groups/33>.

- School of Thought: 19th Century Natural Rights Theorists </groups/38>.

The Second Edition

We began (2009-10) putting Spooner's works online book by book and pamphlet by pamphlet over a period of several years. The second edition of his Works will be 5 volumes in chronological order by date of publication. The works will be available temporarily here in HTML. They can be ound in facsimile PDF here as well:

The Collected Works of Lysander Spooner (1834-1886), in 5 volumes (Indianapolis: Liberty Fund, 2015).

- Vol. 1 (1834-1850) - HTML </pages/works-of-spooner-1> or PDF </titles/2294>.

- Vol. 2 (1853-1855) - HTML </pages/works-of-spooner-2> or PDF </titles/2295>.

- Vol. 3 (1858-1862) - HTML </pages/works-of-spooner-3> or PDF </titles/2296>.

- Vol. 4 (1863-1873) - HTML </pages/works-of-spooner-4> or PDF </titles/2297>.

- Vol. 5 (1875-1886) - HTML </pages/works-of-spooner-5> or PDF </titles/2298>.

The entire works of Spooner are searchable from the main bio page </people/4664>.

Copyright and Fair Use Statement

The texts are in the public domain.

This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.

Table of Contents

- T.1 The Deist's Immortality, and an Essay on Man's Accountability for his Belief (1834).

- T.2 "To the Members of the Legislature of Massachusetts" (August 26, 1835).

- T.3 The Deist's Reply to the Alleged Supernatural Evidences of Christianity (1836).

- T.4 Supreme Court of United States, January Term, 1839. Spooner vs. M'Connell, et al. 1839).

- T.5 Constitutional Law, relative to Credit, Currency, and Banking ( 1843).

- T.6 The Unconstitutionality of the Laws of Congress, Prohibiting Private Mails ( 1844).

- T.7 Poverty: its Illegal Causes and Legal Cure. Part First. (1846).

- T.8 Who caused the Reduction of Postage? Ought he to be Paid? (1850).

- T.9 Illegality of the Trial of John W. Webster 1850).

- T.10 A Defence for Fugitive Slaves, against the Acts of Congress (1850).

- T.11 An Essay on the Trial by Jury (1852).

- T.12 The Law of Intellectual Property; or An Essay on the Right of Authors and Inventors to a Perpetual Property in their Ideas (1855).

- T.13 A Plan for the Abolition of Slavery, and To the Non-Slaveholders of the South (1858).

- T.14 Address of the Free Constitutionalists to the People of the United States (1860).

- T.15 The Unconstitutionality of Slavery (1860).

- T.16 The Unconstitutionality of Slavery: Part Second 1860).

- T.17 A New System of Paper Currency (1861).

- T.18 Our Mechanical Industry, as Affected by our Present Currency System: An Argument for the Author’s “New System of Paper Currency” (1862).

- T.19 Articles of Association of the Spooner Copyright Company for Massachusetts (1863).

- T.20 Considerations for Bankers, and Holders of United States Bonds (1864).

- T.21 A Letter to Charles Sumner (1864).

- T.22 No Treason, No. 1 (1867).

- T.23 No Treason. No II.The Constitution (1867).

- T.24 Senate-No. 824. Thomas Drew vs. John M. Clark (1869).

- T.25 No Treason. No VI. The Constitution of No Authority (1870).

- T.26 A New Banking System: The Needful Capital for Rebuilding the Burnt District (1873).

- T.27 Vices are Not Crimes: A Vindication of Moral Liberty (1875).

- T.28 Our Financiers: Their Ignorance, Usurpations, and Frauds (1877).

- T.29 The Law of Prices: A Demonstration of the Necessity for an Indefinite Increase of Money (1877).

- T.30 Gold and Silver as Standards of Value: The Flagrant Cheat in Regard to Them (1878).

- T.31 Universal Wealth shown to be Easily Attainable. Part First (1879).

- T.32 No. 1. Revolution: The only Remedy for the Oppressed Classes of Ireland, England, and Other Parts of the British Empire (1880).

- T.33 Natural Law; or the Science of Justice (1882).

- T.34 A Letter to Thomas F. Bayard: Challenging his Right - and that of all the Other Socalled Senators and Representatives in Congress - to Exercise any Legislative Power whatever over the People of the United States (1882).

- T.35 A Letter to Scientists and Inventors, on the Science of Justice, and their Right of Perpetual Property in their Discoveries and Inventions (1884).

- T.36 A Letter to Grover Cleveland, on his False Inaugural Address, the Usurpations and Crimes of Lawmakers and Judges, and the Consequent Poverty, Ignorance, and Servitude of the People (1886).

T.1.The Deist's Immortality, and an Essay on Man's Accountability for his Belief (1834).↩

Title

[1.] The Deist's Immortality, and an Essay on Man's Accountability for his Belief (Boston, 1834).

- also online Shorter Works, vol. 1: </titles/2290#lf1531-01_head_002>

Text

the DEIST’S IMMORTALITY, and AN onMAN’S ACCOUNTABILITY FOR HIS BELIEF.

THE DEIST’S IMMORTALITY.

Deists are led to believe in a future existence, by the consideration, that, without it, our present one would seem to be without aim, end or purpose. As a work of Deity it would appear contemptible. Whereas, by supposing a future life, we can imagine, in our creation, a design worthy of Deity, viz. to make us finally elevated intellectual and moral beings.

They are led to this belief by the further facts, that our natures appear to have been specially filted for an eternal intellectual and moral advancement; that we are here surrounded by means promotive of that end; and that the principal tendency of the education and impressions, which our minds here receive from the observation and experience of what exists and takes place in this world, is to carry them forward in that progress.

Again,—we are gifted with a desire of knowledge, which is stimulated, rather than satisfied, by acquisition. We are here placed in the midst of objects of inquiry, which meet that desire; and there is still an unexplored physical, mental and moral creation around us. Here then are supplied the means of our further intellectual growth. We are also the constant witnesses of actions, objects and occurrences, which call into exercise our moral feelings, and thus tend to to improve our moral susceptibilities and characters. Analogy, and all we know of nature, support the supposition, that, if we were to continue our existence in the universe, of which this world is a part, we should always be witnesses of more or fewer actions, objects and occurrences similar to these in kind. Here too then we may see evidence of means and measures provided and adopted for our future moral culture. Our natures therefore are capable of being eternally carried nearer and nearer to perfection solely by the power of causes, which we see to be already in operation. The inquiry therefore is a natural one—what means this seeming arrangement? Does it all mean nothing? Is a scheme capable of such an issue as our creation appears to be, and for the prosecution of which every thing seems prepared and designed, likely to be abandoned, by its author, at its commencement? If not, then is the evidence reasonable, that man lives hereafter.

This evidence too is direct; it applies clearly to the case; it is based on unequivocal facts, such as have been named; it is not secondary; it does not, like that on which Christians rely, depend upon the truth of something else which is doubtful.

An argument against the probability that this theory of Gods intention to carry men on in an intellectual and moral progress, will be executed in relation to all mankind, [4] has been drawn from the fact that many appear to have chosen, in this world, a path opposite to “this bright one towards perfection;” and it is said to be reasonable to suppose that they will always continue in that opposite course. Answer—There is, in every rational being, a moral sense, or reveerence for right. This seminal principle of an exalted character never, in this world, becomes extinct; it survives through vice, degradation and crime: it sometimes seems almost to have been conquered, but it never dies; and often, even in this world, like a phenix from her ashes, it lifts itself from the degradation of sensual pollution under which it was buried, and assumes a beauty and a power before unknown. How many, whose virtuous principles had been apparently subdued by temptation, appetite and passion, have suddenly risen with an energy worthy an immortal spirit, shaken off the influences that were degrading them, resisted and overcome the power that was prostrating them, become more resolutely virtuous than ever, and had their determination made strong by a recurrence to the scenes they had passed. This has happened in multitudes of instances in this world.

It should be remembered that nearly or entirely all our errors and wanderings from virtue here, proceed from the temptations offered to our appetites and passions by the things and circumstances of this world. The sensual indulgences, which follow these temptations, at length acquire over many a power, which, while exposed to those temptations, they would probably never shake off. But here we see the beneficent interference of our Creator, for when we are removed from this world, we are removed also from the influence of those particular temptations, which have here mastered us. We have then (without supposing any thing unnatural or improbable) apparently an opportunity to set out on a new existence—released from those seductions, which had before proved too strong for our principles—having also the benefit of past experience to warn us against the temptations which may then be around us, and inspired by a more clear developement of the glorious destiny ordained to us.

If many have chosen and resolutely entered upon a course of virtue while in this world, and while exposed to all the temptations which had once acquired a power over them, is it not natural to suppose that the opportunity offered to men by an exchange of worlds, will be embraced by all whose experience shall have shewn them the weakness, unhappiness and degradation of a course opposite to that of virtue?

But since many are removed from this life before their moral purposes are decided by their observation and experience of evil, may we not suppose, that, to effect that object in such, and to strengthen those purposes in all, enticements and temptations will be around us in the next stage of our existence? And who knows whether, if those temptations should ever become too strong for our virtue, the same [5] measure of removal may not be repeated again and again in our progress—at each advance, a new and wider horizon of God’s works, and a more extensive developement of his plans, opening before, and corresponding to, our enlarged and growing faculties—our intellectual and moral powers nourished and expanded by such new exhibitions of his wisdom, benevolence and power, as shall excite new inquiries into the principles, measures and objects of his moral government, and call forth higher admiration, and purer adoration, of his greatness and goodness? Was ever a thought more full of sublimity? A thought representing all rational beings as possessing the elements of great and noble natures, capable of being, and destined to be, developed without limit—a thought representing Deity, in the far future, as presiding over, not merely an universe of matter, or such limited intellects as ours are at their departure from this world; but as ruling over, occupying the thoughts, and inspiring the homage, of a universe of intelligences intellectually and morally exalted, and constantly being exalted, towards a state high and perfect beyond our present powers of conception.

Compared with these views and prospects, how puerile is the heaven of Christians—how enervating to the mind their languishing and dreamy longings after a monotonous and unnatural bliss. Many of them do indeed believe in the eternal progress of the soul—but they obtain not this belief from the Bible. It was the much scoffed at theology of reason and nature, that taught to them this doctrine, which is, above all others connected with the future, valuable to man while here, and honorable to Deity.

The impression, made by the representations of the Bible, is, that men are removed from this world to a state, in which their intellectual faculties will always remain the same as they were immediately after their entrance thither. They are there represented as eternally praising Deity for a single act, viz. their redemption—an act, which, if it could be real, could have been performed only in favor of a part of the human race, and which could, neither from any extraordinary condescension, benevolence or greatness in the act, entitle Deity to an homage in any degree proportionate to what he would be entitled to, if the theology of reason, on this point, instead of the theology of Christianity, be true.

How absurd too is it to suppose that Deity, who must be supposed to have willed the existence of our homage towards him, should will only that which should spring from so scanty a knowledge of his designs, and which should be offered by intellects so incapable of appreciating his character, as Christianity contemplates.

Finally the Christian’s heaven is an impracticable one, unless God shall perform an eternal miracle to make it otherwise. The nature of our minds is such that they cannot always dwell upon, and take pleasure in, the same thought or object, however glorious or delightful it may be in itself.—There [6] is in them an ever-restless desire of change, and of new objects of investigation and contemplation, and it is by the operation of this principle that our eternal intellectual advancement is to be carried on. But Christianity offers to us, in its promised heaven, one prominent subject only of reflection and interest—a subject, which, if it were real, although calculated perhaps to excite gratitude for a time, could never, without the aid of a miracle, operate upon our present natures so as to produce an eternal delight.

But it will probably be said that our natures will be so changed, as to be fitted to forever receive pleasure from the same source. Answer 1st. Such a change would be a degradation of our present natures, and that we cannot believe that Deity would ever cause. Answer 2d. If our natures are to be so essentially changed as always to rest satisfied with one subject of contemplation, to always receive their highest and constant pleasure from one fountain, and to have their intellectual thirst forever quenched, we should not then be the same beings that we were. Answer 3d. Such a change in, or rather annihilation of, our mental appetites, is inconsistent with our further progress, because the principle, which is to urge us on, will then be removed—therefore a belief in the Christian’s heaven is inconsistent with a belief in the eternal progress of the soul.

The theory of successive existences is rendered probable, by the obvious necessity of having our situations, and the objects of investigation and reflection, by which we are to be surrounded, correspond to the state of our capacities. The same condition, which, like this world, is suited to the infancy of our being, would not be best adapted to the improvement of one who had existed for a series of ages.

Further—it is difficult to account for the temporary character of our present existence, otherwise than by supposing it the first of a series of existences. The idea that it was intended as a state of probation is one of the most absurd that ever entered the brains of men. It is absurd, in the first place, because the fact, that so large a portion of mankind are removed from it before their characters have been determined by influences calculated to try them, is direct evidence from Deity himself that he did not intend it for that purpose; and, in the second place, it is absurd, because the utility of a state of probation is not the most obvious thing in the world, when it is considered that the consequence of one is admitted to be, that a part of mankind become eternally miserable and wicked, whereas, without one, it must be admitted that all might become such beings as I have previously supposed them designed to be.

[7]

AN ESSAY, ON MAN’S

The Bible threatens everlasting punishment to such as do not believe it to be true—or to such as do not believe that a certain man, who grew up in the town of Nazareth, was a Son of the Almighty! Is it just to punish men for not thinking that true, which is improbable almost beyond a parallel? If not, the Bible defames the character of Deity by charging him with such conduct.

Is our belief an act of the will? If it were, the threat might operate as a motive to induce us to believe, or to persuade us to make up our minds that we would believe. But no one pretends that a man can believe and disbelieve a doctrine, or think it true and false, whenever occasion seems to require.

Our minds are so constituted that they are convinced by evidence. Sometimes too they believe a thing, and in perfect sincerity too, without being acquainted with any real evidence in favor of its truth. Such a belief comes naturally of the impressions, which the minds of some persons receive from the circumstance that the thing is generally believed by others with whom they are acquainted, or from the fact that it has long been believed by others. These circumstances, although they can hardly be considered as evidence, yet have the effect of evidence in satisfying many. There is a fashion in religion, by which men’s minds are carried away. We may see it every where. Such, it will by admitted on all hands, is the case in Pagan countries, and it is also more or less the case in civilized and enlightened nations. Although the evidence of Mahomet’s having been a Prophet of God, is probably insufficient to convince any enlightened, impartial mind, possessed of common strength, still, it entirely satisfies the mind of a Turk of the strongest intellect. The reason is, that the little real evidence is aided in its influences by the associations and impressions of his whole life.

When the mind is thus completely satisfied of the truth of a thing, is there any obligation of morality, which requires a man to look farther? If it were so, men could never safely come to a conclusion on any subject; it would be their duty never to consider any thing to be settled as true. But God has so constituted our minds that when they are convinced, they rest satisfied until their doubts are excited by opposite evidence or impressions. Until then it is not in the power of man to doubt. If therefore there be any moral wrong in resting satisfied in a belief, of which the mind is convinced, there is no alternative but to say that God, by having so constituted our minds, has made himself the author of that wrong.

One, who is entirely satisfied of the truth of a matter, although he be in reality mistaken, feels no moral obligation [8] to inquire further into its evidences, and, of course, violates no moral obligation by not inquiring—therefore he cannot be morally guilty. In such an instance, if there were any wrong on the part of any one, it could be only on the part of God for having so constituted the individual, as that, in such a case, he would have no moral sense to direct him aright.

It is only when a man’s doubts are excited, that his moral sense directs him to investigate. Supposing then a Pagan or Mahometan were to feel entirely satisfied that his system were true, is there any moral obligation resting upon him to spend his time in inquiring into other systems? Is he not acting uprightly in considering his faith as certain until his doubts are excited? Is it then just to punish him? If not, then Jesus could never have been authorized by Deity, in the manner he imagined, to threaten punishment to such an one on account of his belief.

It is so likewise, when men are entirely convinced that a narrative, for example, is untrue—they have then no moral sense that commands them to inquire into its evidences, and, of course, do not violate their moral sense in not inquiring. Christians feel no moral obligation to investigate the evidences of Mahometanism, because, without any investigation, they are convinced that it is untrue. Mahometans are in the like condition in respect to Christianity; and whether Christianity, or Mahometanism, or neither, be true, the Mahometan is as innocent on this point as the Christian.

If a man read the narratives of the miracles said to have been performed by Jesus, and his mind be perfectly convinced that the evidence is insufficient to sustain the truth of such incredible facts, his moral sense does not require him to go farther—it acquits him in refusing his assent. So if he be not entirely satisfied, and his moral sense dictate further investigation, and he then make all which he thinks affords any reasonable prospect of enlightening him, and his mind then become entirely convinced of the same fact as before, his conscience is satisfied, and he is innocent.

How many have done this, and have become Deists. We have the strongest evidence too, that, in their investigations, no unreasonable prejudice against Christianity has operated upon their minds. Vast numbers of men, living in Christian countries, where it was esteemed opprobious to disbelieve Christianity—men, whose parents, friends and countrymen were generally Christians, and whose worldly interest, love of reputation, love of influence, and even the desire of having bare justice done to their characters, must all have naturally and strongly urged them to be Christians; and whose early religious associations were all connected with the Bible—men, too, of honest, strong and sober minds, of pure lives and religious habits of thought, have read the Bible, have read it carefully and coolly, have patiently examined its collateral evidence, and have declared that they were entirely convinced that it was not what it pretended to be—that [9] the evidence against it appeared to them irresistible, and that by it the faintest shadows of doubt were driven from their minds. Their consciences rest satisfied with this conclusion—their moral perceptions tell them that their conduct in this matter has been upright—they know, as absolutely as men can know any thing of the kind, that if they are in an error, it is an error, not of intention, but of judgment, not of the heart, but the head; and yet the sentence of the Bible against such men is, “the smoke of your torments shall ascend up forever and ever!” The enormity of the punishment, and the monstrousness of the doctrine, are paralleled by each other, but are paralleled by no doctrine out of the Bible, in which enlightened Christians believe. Men can hardly be guilty of greater blasphemy than to say that this doctrine is true. And yet the Bible employs these unrighteous and fiend-like threats, to drive men to believe, or to close their minds against evidence lest they should disbelieve, narratives and doctrines as independent of, and as unimportant to, religion and morality, as are the histories of Cæsar and Napoleon—narratives, which set probability at defiance, and doctrines, which do injustice to the characters of God and men.

Many Christians say the reason, why men do not believe the Bible, is, that they do not examine it with an humble mind—and an humble mind, as they understand it, is one which has prepared itself, as far as it is able, by prayers, and fears, and a distrust of its own ability to judge of the truth of what it ought to believe, to surrender its judgment, to suppress its reasonings, to banish its doubts, and then believe the Bible on mere assumption, in spite of the incredibility of its narratives, the enormity, impiety and absurdity of its doctrines, and the contemptible character of its evidences.

They are accustomed to say that the doctrines of the Bible are too humiliating for the pride of men to acknowledge. But Deists acknowledge as strong religious obligations, and as pure moral ones, as Christians. As for the humiliation of believing Christianity, there certainly is nothing more humiliating in believing that Jesus performed miracles, or that he was prophesied of before his coming, than there is in believing any other fact whatever. If it be humiliating to believe one’s self that wicked animal, which the Bible represents man to be, it is because it is contrary to nature and reason to be willing to consider ourselves wretches worthy of all detestation, especially when our own knowledge of the moral character of our intentions gives the lie direct to any such supposition. Every human being knows, or may know, if he will but reflect upon the motives which have governed him, that he never in his life performed a wrong act simply from a desire to do wrong. No man loves vice, because it is vice, although many strongly love the pleasure which it sometimes affords. Men are induced to wrong actions by a variety of motives, and desires, but the simple desire to do [10] wrong never inhabited the breast, or controlled the conduct, of any individual. Yet in order to prove that men’s natures are in the slightest degree intrinsically and positively wicked, it is necessary to prove that individuals are, at least, sometimes, influenced by a special desire of doing wrong. To prove that men are led, by any other desires, to commit wrong actions, only proves the natural strength of those desires, and the comparative weakness of their virtuous principles, or, in other words, it proves the imperfect balance of their propensities and principles—an imperfection, which, of course, ought to be guarded against, because it often leads men to do wrong, and which may need, though not deserve, the admonitory chastisement which God applies to men—but it does not prove any positive wickedness of the heart. So that, even if a man were (as no man ever was) entirely destitute of all regard to right, still, if he had not any special desire of doing wrong, whatever other desires he might have, and to whatever wrong conduct they might lead him, he would nevertheless be intrinsically only a sort of moral negative—he would not be at heart positively wicked.

But the very reverse of the doctrine of intrinsic wickedness is true of every man living, for every man’s character is more or less positively good—that is, he has some regard to right—and that regard is as inconsistent with wickedness of heart, or a desire to do wrong, as love is with dislike.—In a large portion of mankind, this regard to right is one of their cardinal principles of action, and shows itself to be too strong to be overcome by any but an unusual impulse or temptation. Now is a man, who, as far as he knows, and as far as he thinks, means to do right, whose general intentions are good, and who is generally on his guard lest he should do wrong, to stultify his intellect, and discredit the experience of his whole life, in order to believe a book, written two thousand years ago, in scraps by various individuals, and whose parts were collected and put together like patchwork, when it tells him that he is a “desperately wicked,” depraved and corrupt villain? A man might as well tell me that I do not know the colour of my own skin, or the features of my own face, as that I do not know the moral character of my own intentions, or, (if theologians like the term better,) of my heart—and he might as well tell me that my skin is black, or my eyes green, as that my inclination is to do wrong, or that my heart is bad. He would not, in the former case, contradict my most positive knowledge any more directly than in the latter.

Were I to say that all men’s bodies were corrupt and loathsome, every one would call me a person who had been in some way so far deluded (and what greater delusion can there be?) as that I would not believe the evidence of my own senses. Yet, had I always been told by my parents, my friends, and by every one about me, and had I read in a book, which I believed to be the word of God, from my earliest [11] years, that such was the fact, and that corporal substances were above all things deceitful, there can be no doubt that I should have partially believed it now, or, at least, during my childhood and youth. Still, my senses, and my experience do not more clearly disprove that fact, than they do that men’s hearts or intentions are intrinsically wicked. But Christians believe the contrary, and simply because it has been dinging in their ears from their childhood; because they have habitually read it in what they supposed the word of God, from a period prior to the time when they were capable of judging of men’s characters; because they have thus been taught to attribute every wrong action of men to the deplorable wickedness of their hearts; and because they have been taught to consider it a virtue to look upon their own and others’ characters, through the dingy medium of the Bible.

The humiliation therefore of believing the Bible, is principally the humiliation of believing a detestable falsehood for the sake of holding one’s self in abhorrence—an humiliation calculated to destroy that self respect, which is one of the strongest safeguards of virtuous principles—an humiliation, to which no person ought to submit, but into which many of the young, the amiable and the innocent have been literally driven.

Again. The facts, that many honest, enlightened and religious men have disbelieved Christianity; that many, who saw the supposed miracles, disbelieved it;* that the inconsistencies of the Bible have given rise to hundreds of different systems of religion; that every sect of the present day, in order to support its creed, is obliged to deny the plain and obvious meaning of portions of the Bible; and that the truth or importance of almost every theological doctrine contained in it is denied by one sect or another, which professes to believe in the inspiration of the book itself, if they are not proof that this pretended light from God is but the lurid lamp of superstition, are, at least, sufficient evidences that a man may reasonably disbelieve it to be what it pretends to be, viz. a special revelation of luminous truth. But is it credible that Deity has made to men a communication, on a belief or disbelief in which, he has made their eternal happiness or misery to depend, and yet that he has made such an one, and has made it in such a manner, that men may reasonably disbelieve it to be genuine?

Even if we attribute men’s unbelief to the perverseness of their dispositions, still, the greatest of sinners are the very ones whom this system professes to be more especially intended to save—and would these then be left unconvinced? How absurd is it to suppose that Deity would go so far as to violate the order of nature in order to save men of perverse minds by bringing them to a knowledge of the truth, and [12] that he should then fail of doing it by reason of the very obstacle, which he had undertaken to remove. To say that he has done all in his power to convince men, is to say, that, in a comparatively momentary period from their birth, minds of his creation have become too powerful for him to control. To say that he has not done all in his power, is to attribute to him the absurdity of adopting means for the purpose of accomplishing the greatest object (in relation to this world) of his moral government, when he must have been perfectly aware that those means would be insufficient.

Is it credible that, if God have made to men a communication, on a belief in which depends all their future welfare, he would have interlarded it with so much that is disgusting and improbable, as that the whole would be disbelieved, rejected and trodden underfoot, by well-meaning men? On the contrary, would he not have made is so probable as to have carried conviction to every mind that could be benefitted by it? Was he not bound by every principle of parental obligation to have made it self evidently true? Ought he not, when such tremendous consequences were at stake, and if need there were, to have written this communication over the whole heavens, in letters of light, and in language that could not be misinterpreted, that man of every age, nation and colour, might rend and never err? Would he not have completely established, in the mind of every accountable being, by a sufficient and immoveable proof, the truth of every syllable essential to their salvation? If he would not, then, according to the best judgment, which the perceptions he has given us will enable us to form, he must be what I will not name.

But this is not all. The Bible requires of a certain portion of mankind, not only, that they believe it a revelution from God, but that they violate their consciences in order to to believe it. For example, by requiring all men, without exception, to believe it or be damned, it requires the believers in the Koran and the Shaster to renounce those books as false. This it is impossible for them to do, unless they first investigate the evidences against their truth. Now, I think no candid man will pretend, either that those believers would not feel as much horror at the supposed impiety of disbelieving those books, as a Christian does at that of disbelieving the Bible, or that it would not require on their part as great a struggle with their consciences to go into the investigation of the evidences against the truth of those books, as it would on the part of the Christian to go into the investigation of the evidences against the truth of the Bible. Yet the Bible, by demanding of them that they believe it, virtually demands that they thus violate their consciences in order to go into such an investigation as is necessary to lead them to disbelieve those systems, which they now revere as too sacred to be doubted; and it demands this of them too on the threatened penalty of eternal damnation.

[13]

If there be any conduct more wicked than any other which can be conceived of, that, which is here ascribed to Deity, must, it appears to me, exceed in wickedness any other that the human mind ever contemplated. Its wickedness is, in fact, no less than that of hereafter punishing men through eternity, for not having done in this world that which they most religiously believed to be wrong.

And what is it to believe the Bible, that men should merit the everlasting vengeance of the Almighty for not believing it? Why, setting aside its secondary absurdities and enormities, it is to believe in these giant ones, viz. that when Deity created an universe, in pursuance of a design worthy of himself, he created in that universe a Hell—a Hell for a portion of the beings to whom he was about to give life—a Hell for his children—a Hell that should witness the eternal reign of iniquity, misery and despair—a Hell that should endlessly perpetuate the wickedness and the wo of those who might otherwise have become virtuous and happy; that he then, after having created men, and given them a nature capable of infinite progress in knowledge and virtue, by placing them in a world full of enticement and seduction, deliberately laid the snare, made the occasion, fed the desire, and instigated, invited and seduced to the conduct, which he knew certainly would issue in the moral ruin of that nature, and the endless wretchedness of the individuals: and, finally, that all this was right, that such a Being is a good Being, and that he merits from us no other sentiment than the highest and purest degree of filial and religious emotion.

And what is the evidence, on which we are called upon to believe all this? Why, it is this. Some eighteen hundred years ago, a few simple individuals, from among the most ignorant class, in a most unenlightened, superstitious and deluded community, where a supposed miracle was but an ordinary matter, where miracle-working seems often to have been taken up as a trade, and where a pretended Messiah was to be met, as it were, at every corner, said that they had this story from one of the wandering miracle-working Messiahs of the day, who performed many things, which appeared to them very wonderful; although they admit that these same things, as far as they were seen by others, (and nearly all the important ones, except such as were studiously concealed, were seen by others,) did not, to those others, appear very wonderful or unusual. They also expressly admit that, of those who had once been induced to follow him, nearly all very soon changed their minds in relation to him, and deserted him. They also, by themselves deserting him when he was apprehended, virtually acknowledge that their own confidence in him had then gone to the winds, and would never have returned, had it not been, that, after having submitted to a part of the usual forms of an execution, and being taken down for dead, (at three o’clock or later in the afternoon,) he, as soon, at the farthest, as the next night [14] but one, (not “three days” after, be it remarked) and how much sooner we know not, returned to life, (as men are very apt to do who have been but partially executed,) and had the extraordinary courage to lurk about for several days, and shew himself, not openly to the world, but in the evening, and within closed doors, to some dozen who had before been his very particular friends. This is altogether the strongest and most material part of the evidence in the case,* and the question, which arises in relation to it, is, whether it be sufficient to sustain such an impeachment, as has been alluded to, of the character of the Almighty?—A question, which, if the march of mind continue, men will sometime be competent to settle.

Endnotes

*

John 12-37—“But though he had done so many miracles before them, yet they believed not on him.”

*

It will be recollected that no one of the twelve ever speak of having witnessed, or heard of, any ascent into heaven.

T.2 "To the Members of the Legislature of Massachusetts" (August 26, 1835).↩

Title

[2.] "To the Members of the Legislature of Massachusetts." Worcester Republican. - Extra. August 26, 1835.

- also online Shorter Works, vol. 1: </titles/2290#lf1531-01_head_005>

Text

WORCESTER REPUBLICAN.—EXTRA.

WORCESTER, WEDNESDAY AUGUST 26, 1835.

TO THE MEMBERS OF THE LEGISLATURE OF MASSACHUSETTS.

Gentlemen, I feel personally interested to procure a change in the laws relating to the admission of Attorneys to the Bar; and since no one, unless he be thus personally interested, will be likely ever to take the trouble thoroughly to inquire into, or fully to expose the injustice and absurdity of the restraints now in force, I take the liberty of addressing and sending to you this letter, and respectfully asking your consideration of the subject.

By the Statute of 1792 Ch. 4, establishing the Supreme Judicial Court, it is provided (See. 4) that said Court “shall and may, from time to time, make, record and establish all such rules and regulations with respect to the admission of Attorneys ordinarily practising in the said Court, and the creating of barristers at law, as the discretion of the same Court shall dictate—provided that such rules and regulations be not repugnant to the laws of the Commonwealth.”

Pursuant to this authority, the Supreme Judicial Court have established such rules (see Bigelow’s Digest—Title, Counsellors and Attorneys,) that it is now necessary for a graduate to spend three years, and a non-graduate five years, in the study of the law, before he can be admitted to practise in the Common Pleas, and then to practise four years in the Common Pleas before he can be admitted a Counsellor of the Supreme Court.

These rules, as to the time of study, are peremptory—and the custom is, (whether the rules contemplated it or not,) after this time has been nominally passed in study, whether it really have been passed in study or in idleness, to admit the applicant as a matter of course, without any further inquiry as to his attainments. It is true that the persons, with whom he has studied, certify that he has been “diligent” in the pursuit of the education proper for his profession—but this certificate is no evidence that such has been the fact, and is not so considered by the Bar, because it is given, and is understood to be given, indiscriminately as well to those who have been grossly and notoriously negligent, as to those who have been diligent. So that, in fact, the time and money, expended in nominally preparing for the profession, and not the acquirements or capacity of the candidate, constitute the real criterion, by which he is tried when he applies for admission.

The Bar in this (Worcester) County, and I suppose also in the other Counties, have improved, in letter if not in spirit, upon the unjust and arbitrary character of the rules of the Court. The 12th of the Rules of the Bar in this County is in these words. “No Student shall commence, or defend any action, or do any other professional business on his own account; and no Student shall be employed for pay, in any business for himself.” And the Bar have substantially the power to prevent the admission of any one, who shall infringe this rule; because the Court will not take upon itself to admit any one, who is not recommended by the Bar, unless the Bar shall “unreasonably refuse to recommend” him, (Rule 7th of S. J. C. See Bigelow’s Digest, as before—also Rule 6th C. P. See Howe’s Practice—appendix,) and it probably would not consider the conduct of the Bar, in refusing to recommend one, who had spent a part of his noviciate in earning his subsistence, unreasonable. The Court would undoubtedly say that the spirit of their own rule required that the Student’s exclusive business, during his noviciate, should be the acquisition of the necessary qualification, for his profession.

Although we have the evidence of experience, yet we need it not, in order to demonstrate that it must be a necessary operation of these rules, to exclude from the profession a class of young men, who, as a general rule, would be more likely to excel in it than any other—I mean the well-educated poor. I say this class would be more likely to excel in it than any other, because they generally do excel all others in whatever they undertake, that requires energy and perseverance. The access of this class to the profession, and their success in it, are made, by these rules, actually impracticable. In the first place, if they have the perseverance to go through the extreme and long continued toil and exertion, that must be gone through, if they would defray, as fast as they accrue, the expenses of so long a course of preparatory studies as are now required, they must, of necessity, by that time have exhausted, in a great degree, the energies, that are indispensable to success in the laborious profession of the law; because it is not in human nature that a man should acquire, and at the same time earn the money to pay for, so expensive and long a course of education, and retain his energy fresh and unbroken. He must also, even after he has made all this effort, be so far advanced in life, that he must enter the profession under great disadvantages on account of his age, and must be little short of insane to imagine that, with his wasted powers, he can then set out and compete with those who commenced fresh and young.

Take another case—that of a poor young man, who may be (what few can ever hope to be) fortunate enough to obtain credit and assistance, while getting his education, on the condition that he shall repay after he shall have engaged in his profession—so long is the term of study required, and such is the prohibition upon his attempts to earn any thing in the mean time for his support, that he must then come into practice with such an accumulation of debt upon him as the professional prospects of few or none can justify. Experience has shown the result to be what any one might have foreseen that it would be. The class of young men, before mentioned, the well-educated poor, have been, almost without a solitary exception, excluded from the profession, which many of them would have chosen and adorned, had it been open to them, and have been actually driven into other pursuits—and the profession is now filled, with few exceptions, by men, who were educated in comparative ease and plenty; who have neither the capacity nor the energy necessary to success; who chose this profession, not because their minds were adapted to it, but because, having received a liberal education, it was necessary that they should choose some profession, whether they were fitted for it, or not.—You, Gentlemen, as well as I, must be aware that as often as one, with the requisite talents for a lawyer and advocate, can be found in the profession, five, if not ten, others can be found in it, who have not these talents—who are in fact palpably incompetent to anything but the minor and almost formal parts of professional business. I think you must also be aware that the present lack of able lawyers is not owing to any scarcity of talent among the people—but is to be attributed solely to the fact, that the laws of the State, and the rules of Courts and Bars are such as operate to admit many, who are unfit for the profession, and to exclude many who are especially fitted to excel in it.

Among the well-educated poor there are many, who have a passion for the profession, who have also an equal talent for it, and at least equal, if not more than equal perseverance, with those few, who now stand at the head of the Bar—and were the access to the profession made as easy as it might be, there cannot be a doubt that in a little time the wants of the whole community would be supplied with lawyers of a grade equal to that of the few able ones, who are now to be found but here and there.

If Attorneys were permitted to practise, and thus to do something for their support as soon as they could qualify themselves for doing the minor business of the profession, few young men of character and talents are so destitute of resources as to be unable to obtain the necessary education—and why is it not as much a man’s right, to avail himself of his earliest ability to earn his living by this employment, as by any other?

I am aware that there is a statute, (1790 Ch. 58,) that provides that any person of decent and good moral character, who shall produce in Court a power of Attorney for that purpose, shall have the power to do whatever an Attorney regularly admitted may do, in the prosecution and management of suits. But if he once commence in this way, he must always continue in it, for the Bar or Court will never admit him afterwards on the strength of any qualifications that he may acquire by practising in this way. (This fact shows how utterly arbitrary and reckless of right are the rules that are made to govern in this matter, and how inveterate is the determination, on the part of this mercenary and aristocratic combination, to exclude, from competition with them, all who are unable to comply with certain conditions, which have no necessary, or (as experience has proved) even general connexion with an individual’s real fitness for the profession.)

It is imposing upon an Attorney, who has any considerable business, a great and unnecessary inconvenience to oblige him always to take from his client, and carry with him a power of Attorney. There is also another objection—the people are unaccustomed to give powers of Attorney in [15a] such cases, and if a practitioner inform them that he must have one, before he proceeds in his cause, they do not exactly understand why it should be necessary—they are afraid there is something in the matter more than they know—the circumstance creates a distrust against the counsel, and is therefore injurious to him.

The change I would propose is this—that a law he passed that any person, above the age of twenty-one years, of decent and good moral character, on making application either to the Common Pleas or Supreme Court for admission as an Attorney, and paying to the Clerk his recording fees be admitted, without further ceremony or expense, to practice in every Court, and before every magistrate in the State, and that he then have the same right, that an admitted Attorney now has, of appearing in actions without a power of Attorney.

I would, however, have in the law a provision of this kind—which nearly resembles the provision now contained in the 27th rule of the Court of Common Pleas, (see Howe’s Practice, Page 572)—that “the right of an Attorney to appear for any party, shall not be questioned by the opposite party, unless the exception be taken at the first term,” (or, I would add, at the second term, when the opposite party lives without the Commonwealth,) “and when the authority of an attorney to appear for any party shall be demanded,” such attorney shall be sworn or affirmed to speak the truth, and if he “declare that he has been duly authorized to appear, by application made directly to him by such party, or by some person whom he believes has been authorized to employ him, it shall be deemed and taken to be evidence of an authority to appear and prosecute or defend, in any action or petition”—reserving however to the opposite party, on his or his counsel’s making oath or affirmation that he has, in his judgment, reasonable grounds for supposing that such Attorney has not been duly authorized, the right to continue his action, and at the term to which it is continued, to contest, by evidence, the right of such Attorney to appear in the action—provided he give to the attorney reasonable notice that his right to appear will be contested—the party making the objection, being held liable for the costs that may arise in consequence of his objection, if he fail to sustain it.

The principle argument,—and it is of itself, as I think, a sufficient and invincible one—on which I would insist in support of such a law as I have suggested, is that of strict right. If the admission be to any one a privilege, all, who desire that privilege, have as good a right to it as any one can have. None of us are entitled to exclusive privileges; and therefore, if this privilege be granted to one, the obligations of equity are imperative that it be also granted to each and every other one, who may desire it. Even the ability, learning, or other peculiar qualifications of an individual for the practice of the law, cannot with justice, be made a matter of inquiry by the Courts or the Legislature, as a condition of his being permitted this privilege—because those are matters, with which neither the Courts nor the public have any concern—they concern solely the lawyer himself and his clients. Any man, who is allowed to have the management of his own affairs, has the right to decide for himself whom he will employ as counsel—and if he choose to employ one, whom the public at large would not think the best or ablest that could he found, it is the right of the person so employed to have the same facilities afforded to him for discharging his service as counsel, that are afforded to others, whom the public may think much better or abler lawyers.

It may be proper however that a decent moral character be made a requisite for admission, and for this reason solely, as far as I can see, that otherwise individuals might sometimes put themselves there, from whom the Court would be in danger of insult.

Another ground, on which I would advocate a change in the law, is, that the present rules operate as a protective system in favor of the rich, or those who have at least a competency, against the competition of the poor. Some people have thought that a protective system in favor of the poor, against the competition of the rich, was a wise policy—but no one has yet ever dared advocate, in direct terms, so monstrous a principle as that the rich ought to be protected by law from the competition of the poor. And if such a principle is to be sustained by the laws of this Commonwealth, it would justify an open rebellion to put down the Government.

My own doctrine also is, and I have no doubt it is also that of the most of your number, that the professional man, who, from want of intellect or capacity for his profession, is unable to sustain himself against the free competition of his neighbors without the aid of a protective system, has mistaken his calling—and the public ought not, looking solely to their own interest and rights, to tolerate laws, that shall place them under any necessity whatever of employing such incompetent men, when abler once can be procured.—They (the public) ought, on the contrary, to have the most full and unqualified liberty of employing in their service, without let, hinderance, or any invidious distinction or disadvantage whatever, the best talent they can command. The present laws and rules, considering them as the acts of the community, are in fact specimens of the most wretched and self-cheating policy—for while they probably have the effect to invite into the profession few or no able men, who would not otherwise enter it, they exclude many able ones, who, but for them, would enter it. The community therefore take the trouble to make laws, whose natural and necessary operation is to produce a scarcity, where there would otherwise be an abundance of the very services, which they want—they actually go out of their way to do themselves an injury.

Another consideration entitled to weight in favor of the change, is, that if the profession were made accessible by the poor, the practice of the Bar would be likely to be more uniformly humane (I mean no imputation upon the profession at large) than it now is. Who are the Attorneys, whose rapacity has heretofore filled our jails with honest debtors? Who are they, that have ever been ready to extort, in the shape of bills of costs, poverty’s last shilling, and to feed and clothe, if not to pamper and bedeck, their own families, with food and dresses snatched and stripped from the mouths and bodies of the poor man’s children? I think they will rarely, if ever, be found to have been those, who had been reared in poverty themselves; who had known by experience the difficulties of that condition, and who had witnessed and participated in the disheartening embarrassments, occasioned to the poor man’s family, by the deduction of the lawyer’s bill from their scanty earnings. The poor, and those who have been poor, have too much fellow-feeling to get wealth, or even their subsistence, by grinding each other’s faces.

The present rules ought to be abolished for the further reason that a compliance with them, by those who can make good lawyers at all, is not necessary. I have heard, from men of great experience at the Bar, sentiments equivalent to this, that as an almost universal rule, it is not until after a person has entered the profession, and has a character to maintain, and business of his own to attend to, that he studies the law with any considerable intentness or effect. Now it this be so, much of the time, that is now spent in preparation, is little better than wasted.

But further—in a considerable portion of the cases, the compliance with the rules, when it is observed, is more nominal than real. The time, designed by the rules to be devoted, to study, instead of being thus devoted, is, probably by a majority of students, given much more to amusements than to books. Indeed a really industrious law student would generally be considered, by other students, a great curiosity. But even if all did study diligently and zealously, that fact would be no evidence that they were suitable persons to be admitted, in preference to others; because, to excel in the profession of the law, abilities are required, as peculiar almost, as those that are necessary to enable one to excel in painting, music or mechanics; and if a man have not these peculiar abilities, they cannot be acquired by three years study, if indeed they can be by the studies of a whole life. On the other hand, if a man have them, he will succeed, even though he should commence practice before he has studied half the time that our laws require—as is proved by the cases of some of the most eminent lawyers and advocates, that the country has ever produced. According to the criterion in Massachusetts, Henry Clay, Patrick Henry, William Pinkney and Chief Justice Marshall, when they commenced their career, must have been pronounced unqualified for a place, which the next moment would have been given perhaps to some stupid fop, whose only recommendation was, that he had spent three years, not in attending to his brains or his books, but in twirling his cane and brushing his whiskers. Indeed I think experience has proved that the direct tendency of our present rules, is to introduce into the profession more fops and fools than lawyers. The lawyers would enter it, without the rules—but the fops and fools would not find it profitable to do so. These facts illustrate the miserable policy of prohibiting one set of individuals from the pursuit of that art or profession, for which nature and inclination fit them, and of attempting to supply their place by offering to others, who have naturally neither the capacity nor inclination to fill it, exclusive privileges, as an inducement to make the trial. These restrictive and protective rules effect the double evil of shutting out some individuals from their natural and appropriate sphere, where they would be useful to themselves and the community, and of enticing others into what is to them an unnatural one, where they can do little for themselves, and little or nothing for the public. It would hardly be possible to devise rules, that should more uniformly prevent nothing but good, and accomplish nothing but evil, than these which are authorized and upheld by the Legislature.

I will now answer some of the objections, which I suppose will be made, to the passage of such a law as I have proposed.

One is, that there would he too many lawyers.—I might, in answer to this objection, ask how can there be too many lawyers, when the number of practising ones must, of necessity, be limited by the business and conventence of those, who have occasion to employ them?

But I think there is another answer—and that is, that, although there might be more than there are now, (which is very doubtful,) who would become nominally attorneys, and would occasionally fill writs in cases of necessity, there would yet not be so many, who would devote themselves steadily to the profession as their regular business. The reason why there would not be so many of this class, is, that there would be more men of talents in the profession, and they would of course receive all, or nearly all, the patronage. It would be of no use for an incapable man to attempt to establish himself as an attorney at all—because the people would give him no business—and no more able ones would enter the profession than could get a good living from the business, which the community would afford, because it is not characteristic of capable men to engage in any business, from which they cannot derive a good support. Whereas we know multitudes of weak men now enter the profession, and make it their regular business, although they derive only such a pittance from it as no spirited and able man would be content with.

Another objection, which I have heard made, is that if every man were allowed to commence actions, it would give rise to barratry. But how would it give rise to barratry? None, but men of decent and good moral characters, could commence actions—and is not the good moral character of one man as good a security that he will not commit barratry, as is the good moral charracter of any other man? Does loitering about a lawyer’s office three or four years, raise a man’s moral character so high above that of ordinary men, as to afford the community any security for his good behaviour, which they have not in the case of other men? Besides, barratry is a crime—an indictable offence—punishable by fine and imprisonment—and is it necessary, in addition to this, to go so far as to deprive certain men “of decent and good moral character,” of privileges, which—on certain conditions, that have in them no tendency whatever to prevent barratry—are granted to others to an indefinite extent, and have been granted to them until the country is overrun with lawyers so poor that, if poverty could induce men to commit barratry, we should have had enough of it long ere this?

But further—all that is necessary to enable a man now to commit barratry, and to have the profits of managing the suits, is for him just to take a power of attorney—yet we have no barratry, unless it be in the ranks of the profession.

And I think it may here be a very pertinent inquiry—whether the present rules do not favor, rather than obstruct, the commission and concealment of barratry by the members of the Bar? The members of the Bar have become an organized, associated body—the society, in the mass, exercising a discipline over the members, and professing to the public that they tolerate among their number none unworthy of the public confidence. The members of the association have thus taken to themselves, in some degree, a common character. In the preservation of this common character from suspicion, all are interested. And I think all will admit that the experience of the world has been, that such associnations, in guarding their associated character, uniformly pursue the policy of not being the first to expose the faults or crimes of their associates to the world, and generally of hushing suspicion if possible. It is natural that they should, for they have a strong personal interest to do so. But after public suspicion has once become so strong against an individual member that the character of the whole body is in danger—or when a case of criminality has become too notorious to be concealed, then the association become suddenly virtuous—affect a great deal of astonishment—probe the matter terribly—and if they find it necessary, expel the offender, and would then make the public believe that they have purified the association as with fire. Now is not all this farce? a mere humbugging of the community?

What then is the remedy? It is this. If the profession were thrown open to all, this combination of lawyers would doubtless be broken up—they, like other men, would hold themselves severally responsible for their own characters alone—they would have no inducement to wink at orattempt to hide the mal-practices of others—individuals, who should suppose themselves injured by the practice of an attorney, instead of laying his complaints before the Bar, would lay them before the grand jury, or some other tribunal—and it is no uncharitableness, it is only supposing lawyers to be like other men, to say, that it is probable the community would sometimes fare the better for it.

Another objection, which I suppose may be made by some, is that if the profession were thrown open to all, young men would be likely to enter it before they should be so qualified that they could he safely entrusted with the transaction of business—and that therefore those who should employ them, would be imposed upon.—And I suppose the present rules were established on the ground, that some rules, coming from the Court, were necessary in order to prevent men from being imposed upon by those, whom they might otherwise see fit to employ to do their business. Now it was really very kind, no doubt, on the part of the Court, thus to take the people’s business out of their hands, and assume so fatherly a control of it themselves, in order to avert from the people the natural consequences of their incapacity to judge of these things for themselves; yet, however benevolent their intentions undoubtedly were, I seriously suspect that their rules actually cause twice as much imposition as they provent; because, one, admitted under them, is ostensibly admitted on the ground of his being qualified for practice—whereas, in reality, his qualifications have nothing to do with his admission. After the candidate has been nominally a student the requisite time, he is admitted without inquiry, as a matter of course. Yet the forms of admission are such that his admission amounts to an indorsment and certificate, by the Bar, of his capacity and fitness to be entrusted with business. The Bar, in fact, actually recommend him to the confidence of the public, wherever he may go. Many, who are ignorant of the deceptive and fallacious character of this proceeding, repose confidence in the man on account of this indorsement and recommend then, and, in consequence, they too often find themselves to have been imposed upon with a vengeance. In short, this whole affair of rules, recommendations, admissions &c., although observed professedly to prevent imposition, is yet, in practice, little less than an organized system of imposition.

Let us now look on the other hand. If men were admitted, without regard to their qualifications, their admission would be no recommendation to the confidence of the public, and the client would ascertain for himself what a lawyer was made of, before he would entrust him with business at all. Every lawyer would then of necessity stand on his own merits and resources—he would have no recommendation from his brethren of the Bar to prop him up, or to shield him from his just responsibility for his errors. Young men, under these circumstance, would commence and proceed in their practice with much greater caution then they now do, and far this plain reason, that it would be necessary, both for their reputation and their interests, that they should do so.

But supposing that incompetent men should attempt to get professional business, and should succeed, and that those, who employed them, should suffer in consequence—on what principle must the Legislature proceed in sustaining laws to prevent such occurrences? Why, they must proceed on this principle—that the people are not to be allowed the management of their own affairs—that they are not to he trusted with the selection of agents to do their own business—but that if they want the services of a lawyer, for instance, the Legislature and the Courts will so far look after their interests as just to prescribe to them whom they must employ, if they wish to have their lawyer enjoy the ordinary facilities for doing their business. A fine doctrine this to preach to the people of Massachusetts.

I have another objection to a law or rule of Court, that shall make it necessary that the qualifications of a candidate, other than his moral character, be in any way whatever inquired into, as a preliminary to admission. It is that if the inquiry be made at all, it must be made by a board of lawyers, who are interested to keep him out, and who also, in some cases, may have special objects to accomplish by frustrating the success of particular individuals—in which contingencies they would be very likely to abuse their power to effect their purpose. Suppose, for example, that an individual, before applying for admission, should have avowed a determination, that, if admitted, he would not enter the combination of the members of the Bar, to keep up the prices, and throw obstacles in the way of competitors, in the profession—can there be a doubt that such an individual, on an examination as to his attainments, would be in much more than ordinary danger of being found to be not qualified for admission? I therefore object to having my rights, or my interests, or my feelings, or any other man’s rights, interests or feelings thus unnecessarily placed in the keeping of interested men, who have no claim to the guardianship of them.

If a young man should find that, in order to obtain the confidence and patronage of the community, he needs a certificate from the members of the Bar, of his qualifications, he would perhaps think it worth his while to go to some of them, and ask of them, as a favor, to examine and recommend him; but if he should be able to get [15b] along as well without their assistance, he has a perfect right, and, in some cases perhaps, would much prefer to do so. He ought therefore to be left at perfect liberty on this point, without having any other of his privileges affected by the course he may choose.

Another objection, which may be made to the law I propose, is, that the Courts might be incommoded and delayed by the arguments of ignorant men. I have already indirectly, given one answer to this objection, in showing (if I have shown it) that the active part of the profession would probably be more, rather than less, intellectual than it now is. Another answer is, that the people will of course, then as now, (because it will be for their interest to do so) employ the ablest lawyers that can be obtained—and if those, who spend four years in college, three years in an office, and £2500 in money, in fitting themselves for the Bar, are more intellectual than those can be, who may spend less time and money, or spend them in a different way, for that purpose, the presumption is that the people will find it out without the aid of the Legislature, and that, in consequence of it, the former class of practitioners will still have all, or nearly all the business, and young men, who are fitting themselves for the Bar, will still find it for their interest to pursue the same course of education as that now required—and the result will be that the Courts will have the pleasure of listening only to the same kind of arguments as those now addressed to them. But a better, and more conclusive answer to the objection, is that the Courts were made for and by the people, and not the people for or by the Courts. Suitors, when in Court, are the people, and it is their right to present their causes to their own Courts, by whatever counsel they may think it for their interest to present them, (provided it he done with civility,) and the Court must hear them without murmuring, or resign their seats.

I ought here to say, that I do not suppose that these arguments, to which I have alluded, will be put forward in purely good faith. They are too shallow to be honestly relied on by men capable of just and liberal views of the subject. They will be used, if used at all, by those, who dare not avow their real objections to the change. The true source of the opposition, if any should be made, will be, that there are those, who, either for themselves, or for some dear Son Johnny or Josey, want the aid of a protective system to give them a living, or make them respectable.

Having thus attempted to answer the objections, that occurred to me as the most likely to be brought against the law, which I have suggested, I wish now to state some further objections of my own to other portions of the existing laws. I object to the oath, that is required of attorneys, in all its particulars. (See St. 1785 Ch. 23)

In the first place, I object to the oath to bear true allegiance to the Commonwealth, and to support the Constitution. The right of rebelling against what I may think a bad government, is as much my right as it is of the other citizens of the Commonwealth, and there is no reason why lawyers should be singled out and deprived of this right. My being a friend or an avowed enemy of the constitution has nothing to do with the argument of a cause for a client, or with any other of my professional labors, and therefore it is nothing but tyranny to require of me an oath to support the constitution, as a condition of my being allowed the ordinary privileges for getting my living in the way I choose. It will be soon enough, after I shall have been convicted of treason, to refuse me the common privileges, or take from me the common rights of a citizen. It is the right of the citizen to decry and expose the character of the constitution, and if possible to bring it into contempt and abhorrence in the minds of the people, without forfeiting any of the ordinary privileges of citizens—and the recognition of this right constitutes one of the greatest safeguards of the public liberty. And if any one class of men, the moment they attempt to prove that our constitution is not a good one, and ought to be abolished, are to be denied any of the ordinary rights and privileges of citizens, then has that class been singled out for the especial tyranny of the government. There would be just as much propriety in requiring a farmer to take an oath to support the constitution, as a condition of his being allowed the privilege of entering his deed of record in a public recording office, as there is in requiring it of me, as a condition of my being allowed the privileges of an attorney. There would also be the same propriety in requiring this oath of the members of a manufacturing corporation, as a condition procedent to their receiving an act of incorporation, as there is in requiring it of me.

I object, in the next place, to the oath, which the attorney is required to take, that “if he know of an intention to commit any falsehood in Court, he will give knowledge thereof to the Justices of the Court, or some of them, that it may be provented.” I do not choose to be made an informer in this manner, against men with whose matters I have nothing to do. That is not what a lawyer goes into Court for—he goes there to defend the rights and interests of his clients, and for nothing else—and he has a right so to do, and to have all the ordinary facilities for doing it afforded to him, without this odious service being exacted of him. There would be just as much reason in requiring of the members of a manufacturing corporation, as the price of their charter, an oath that they will act as informers against all their neighbors, whom they may suppose to be dishonest in their dealings, and that “if they know of an intention,” on the part of one man, to cheat another in the price of a horse or a cow, “they will give notice thereof that it may be prevented.” I object to being made in any way an officer or servant of the Court, as a condition of my being allowed the ordinary privileges in doing the business of my clients. Any other service, such as taking charge of a Jury, ringing the bell or sweeping the court-room, (which, by the way, would be services a thousand times more honorable) might be required of me on the same ground as is this of an informer.

I object, in the last place, to the oath of the attorney, that he “will do no falsehood, nor consent to the doing of any in Court, that he will not wittingly or willingly promote or sue any false, groundless or unlawful suit, nor give aid or consent to the same; that he will delay no man for lucre or malice; but will conduct, in the office of an attorney within the Courts, according to the best of his knowledge and discretion, and with all good fidelity, as well to the Courts as to his clients.” I object to the whole of this oath for several reasons. First, it singles out lawyers as men worthy of especial suspicion—as men of doubtful honesty. If a lawyer is guilty of mal-practice, he is amenable to the laws; or if he is unfaithful to his clients, he is answerable in damages, in spite of his oath—and, if he is not guilty of mal-practice or unfaithfulness, he ought not to have the invidious suspicion, implied by this oath, fastened upon him. Without this oath, the community have the same security for the honesty of lawyers, that they have for the honesty of other men, and what more have they a right to demand? Clients also have the same security for the fidelity of their attorneys, that other men have for the fidelity of their agents, and what more have the laws a right to require that they shall have? If any individual client want the oath of his lawyer, is a security for his fidelity, let him make to him the insulting proposal, and persuade or purchase a compliance with it, if he can. But if he is satisfied to trust him without the oath, it is base business for the Legislature to interfere and say that the man ought not to be trusted except he be sworn.

Why should not physicians, before they are permitted to practice, he required to take an oath that they will always practice in good faith, and knowingly injure none of their patients? Why are not the members of manufacturing corporations, before they are allowed a charter, required to take an oath that they will defraud no man in the quality of the goods, that they may manufacture under that charter? Why is not the farmer, before he is allowed the privilege of securing to himself his property in his farm, by entering his dead in the public recording office, required to swear that he will never defraud any man in the price or quality of the produce of that farm? There would be as much reason in it as there is in requiring of a lawyer an oath that “he will not wittingly or willingly promote or sue any false, groundless or unlawful suit.”

The truth is that legislatures and Courts have made lawyers a privileged class, and have thus given them facilities, of which they have availed themselves, for entering into combinations hostile, at least to the interests, if not to the rights, of the community—such as to keep up prices, and shut out competitors. The natural result of such combinations also is, that the mass of the members will do more or less to screen individuals from suspicion. The consequence is, that the people have imbibed an extreme jealousy towards them, and exact from them oaths, containing such divers significant specifications, that, were he not kept in countenance by others, a man would consider them too humiliating to be taken. Now if the profession were throw open to all, lawyers would be no longer a privileged class—they probably could no longer enter into combinations that would be of any avail to them, and the jealousy of the people towards them would be at an end.

I object lastly to the statutes, (1814 Ch. 178, Sec. 2,1795, Ch. 80, Sec 4, and 1822, Ch. 51) requiring an attorney, on his admission to the Common Pleas, to pay $20, and on his admmission to the Supreme Court, $30 to the Law Library Association. If I wish to have the benefit of the Law Library, it is of course right that I should contribute to the pay of the Librarian, and also something for the increase of the library; and perhaps $50 is a reasonable sum, although I think few, unless obliged by law, would ever pay it. But—whether the sum itself be reasonable or unressonable—if, either because I live remote from the place where the library is kept, or because I have library enough of my own, or have not the $50 to spare, or for any other reason whatever, I do not choose to join the association, or avail myself of the use of their library, the association have no more claim upon me for $50 than have the Missionary or Bible Society.

Our Bill of Rights declares (Art. 18) that “the people have a right to require, of their law-givers and magistrates, an exact and constant observance of the principles of justice.” I have endeavoured to satisfy you that our existing laws in relation to the admission of Attorneys, are unequal and unjust; and if I have so satisfied you, I have a right to require—in defiance of all such pleas as expediency, utility and public good, if any such unanswered ones can be invented in defence of such laws—that they be abolished.

With respect, &c.

LYSANDER SPOONER,

Worcaster,

Aug. 26, 1835

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T.3 The Deist's Reply to the Alleged Supernatural Evidences of Christianity (1836).↩

Title

[3.] The Deist's Reply to the Alleged Supernatural Evidences of Christianity (Boston, 1836).

- also online Shorter Works, vol. 1: </titles/2290#lf1531-01_head_006>

Text

CONTENTS.

- CHAP. I. The Early Spread of Christianity, - - - - - - - page 1.

- ——— II. The Nature and Character of Jesus, - - - - - - - - 7.

- ———III. The Alleged Miracles of Jesus, - - - - - - - - 18.

- ———IV. The Prophecies, - - - - - - - - - - - - 40.

- ——— V. The Resurrection, - - - - - - - - - - - 50.

[1]

CHAPTER I.: The Early Spread of Christianity.

There are some believers, who place little confidence in the evidence of the miracles said to have been performed by Jesus, who yet say that the establishment of such a religion as his, by such means as were employed after his death, is of itself a convincing miracle. They say it is incredible that the preachers of a religious system, the most prominent doctrine of which was that the Son of God, its founder, was slain, should have met with such success, unless God had miraculously aided them. They, in short, say substantially, that the very idea of the Son of God and the Saviour of the world being put to death ignominiously and like a criminal, is on the face of it so absurd, and so repugnant to all men’s notions of what is probable, and of what would consist with the proper character for such a being to assume, that unless some supernatural influence had been exerted to aid in gaining for it belief, men never would have believed it.

Now, the absurdity and improbability of this doctrine, in the abstract, being acknowledged, let the question be put, whether it be any less absurd or improbable on account of its having been believed? If not, then here is an alleged miracle to be inquired into, of a different kind from those, on the evidence of which the Bible professes mainly to rest its claims to credit; a sort of incidental miracle, in fact, apparently not at all intended to furnish evidence of the truth of the Bible.

It is a little remarkable that any, professing to believe the Bible, should abandon, as insufficient, the evidence which its authors represent to have been expressly designed to convince men of its truth, and should thus seize upon an after circumstance of so doubtful a character as this. Yet one, who attempts to meet believers on their own grounds, must of necessity answer many arguments no more rational than this, or suffer them to believe on; for very slight and flimsy evidence is sufficient to satisfy the minds of such as are both determined to believe, and afraid to disbelieve.

But if it shall appear that this system, absurd and improbable as its main doctrine is, might have been propagated without its having, or being aided by, any miraculous power, then the argument, against the truth of the doctrine, to be drawn from its absurdity and improbability, will be entitled to what would have been its just weight, independent of the system’s having been believed at all. The only ground, that believers of the present day could then take, on this point, would be this, viz, that their astonishment, that men should ever have been so credulous as to believe so improbable and absurd a system, is so great, that they themselves will now believe it too.

Let us then inquire into the causes of the success of the Apostles, and see whether they were not natural ones.

One of the most efficient of these causes, was the manner in which they preached. That alone was calculated to make a very strong impression upon the minds of such as were too ignorant or simple, (and such the first converts will hereafter appear generally to have been,) to judge rationally of the truth of the statements they heard, and the soundness of the religious doctrines, that were taught. The manner of all the Apostles must have exhibited a great deal of sincerity and zeal, (for they were undoubtedly honest in their faith,) and nothing makes so favorable an impression upon the minds of men in general, in favor of those, who advocate new doctrines; nothing inclines them so much to listen willingly to all they have to say, as an appearance, on their part, of perfect sincerity and simplicity.

Another trait in the manner of some of them, particularly of Paul, who appears to have been by far the most efficient apostle, was boldness. The exhibition of this quality always powerfully affects the imaginations of the weak and ignorant, of whom the early converts were evidently composed.

The question is often asked, how is the boldness and zeal of the Apostles to be accounted for, when they knew they had no worldly honors to expect, but, on the contrary, persecution, and the contempt of a large portion of the community, wherever they should go? To answer this question, it is necessary to refer to what was the condition of these men, (with the exception of Paul) when they first became the disciples of Jesus. They were obscure, illiterate, simple and superstitious men—men of no importance as citizens either in their own own eyes or the eyes of others. They had never looked to worldly honors or promotions; but evidently had expected from their youth up, to pass their days in the obscurest paths and humblest walks of life. The contempt of those above them had no terrors for such men as [2] these—they had never aspired to be their equals, and they were willing, because, in whatever situation they might be, they had always expected, to be despised by them as a matter of course, on account of their degraded conditions of mind and fortunes. Still, at the same time, to be at the head of even little sects and bands of those, who had once been their equals, and to be looked up to by them as guides, was a distinction adapted to excite most powerfully the ambition of these men, however much they might be despised by all but their followers. They, by becoming, and being acknowledged as, the teachers of others, acquired an importance, of which a few years before they had never dreamed. They owed whatever of worldly consequence they possessed entirely to the fact of their being esteemed leaders by their prosclytes. Simple, artless and sincere as these men were, such circumstances were calculated to attach them strongly to the cause in which they were engaged, although they might not be aware of being so influenced.

They also attached the greatest importance to a belief in the doctrines, that they preached. They esteemed themselves the agents of God, commissioned to save men’s souls. They looked upon their employment as of the most momentous consequence; and their imaginations, unbalanced by reason and reflection, were intensely excited by such views of their duty.

But there was another cause, perhaps more powerful than all these together. These simple men had been convinced that Jesus was no less a personage than the Son of God. They had been honored, as they thought by being made his bosom friends, while he was on the earth, and his immediate and most conspicuous agents after his death, for accomplishing a design, which to their minds, was the most magnificent that could be conceived. He had, by telling them beforehand of the dangers and difficulties, and obloquy they were to encounter from those whom they had been taught to consider the enemies of God, and by promises that he would always be with them on earth, and that he would extravagantly reward them in heaven, if they should persevere and be faithful, wrought them up to a pitch of fanaticism calculated to make them look on all the opposition of men as unimportant nothings. “Blessed are ye,” said he, “when men shall revile you, and persecute you, and shall say all manner of evil against you falsely, for my sake. Rejoice, and be exceeding glad, for great is your reward in heaven—for so persecuted they the prophets, which were before you.” Can any considerations be imagined more likely to render these simple fanatics alike indifferent to every thing worldly, whether of hardship or comfort, of prosperity or adversity, of honor or shame? Yes. Jesus found pictures, even more inflammatory than these, to operate upon their untutored imaginations. He said to them, “ye are they, which have continued with me in my temptations, and I appoint unto you a kingdom, as my father hath appointed unto me, that ye may eat and drink at my table, in my kingdom, and sit on Thrones, judging the twelve tribes of Israel.” (Luke, 22—28 to 30.)*

It is useless to comment upon the natural effects of such language as this, upon such men as those, to whom it was addressed, and who implicitly believed in the reality of what was promised to them. Perhaps no other picture can be imagined, that would have so powerfully fired the imagination of these credulous men, as this, offered to them, as it was, by one whom they believed to be the Son of God! It all looked probable to them, notwithstanding its extravagance. They had on earth sat with him at table—why should they not also in heaven? They knew too that there were twelve tribes of Israel, and their own number was also twelve, apparently selected with reference to the number of tribes to be ruled over. The whole prospect must have been, to them, a gorgeous reality. The effect was such as might have been expected. These men had their minds engrossed by the grandeur of their designs, and the grandeur of their promised reward. They had nothing to attach them to this world, or to make them regard the esteem of men. One great purpose forever stimulated and urged them on, and hurried them from place to place, wherever a convert could be made. It made them fearless of death, fearless of men, fearless, in fact, of all worldly consequences. It gave to them vastly more of boldness, zeal and perseverance, than could have been easily inspired by other means, in men naturally so timid and spiritless.

Perhaps it will be said that the writings of the New Testament display talents inconsistent with the idea that their authors were intellectually so weak as I have represented them. To this objection I answer, that from the beginning to the end of the New Testament, there is displayed little wit or wisdom for Christians to be proud of. Besides, it should be recollected that these writings were not executed until the authors had generally, for several years, been engaged in the employment of preachers—an employment adapted to call into exercise, and thus to increase, the little powers they originally possessed. And yet the benefit of this long course of education has only enabled them, with a few exceptions, to furnish narratives and epistles, which, with all the advantage they may be supposed to have derived from the translations of such learned men as would be likely to improve upon the style and expressions of the original, come very near being the most simple, and the most destitute of thought, of any to be found in the English language.

If men were but to read the New Testament with the same tone and emphasis, with which [3] they do other books, and were to keep out of mind the idea of its being sacred, they would be disgusted with the credulity, and the want of intellect, reason and judgment, that is apparent in it. The imaginations of believers have dressed up and exaggerated the excellence of the style and matter of the New Testament generally, in the same manner, in which they have the moral instructions of Jesus. They have done this in the same manner, in which we may suppose the imaginations of the people of all nations, that have books esteemed sacred, gloss over and exaggerate the excellence of their contents.

The larger portion of the “Acts of the Apostles,” separate from the insipidity of the narrative, contain the most extraordinary exhibitions of lack of judgment and intellectual resource, that can easily be found on record.

To support these assertions, let me ask those, who have been accustomed to look at the writings of the New Testament as inspired, to look at them for once as uninspired, (which is the only proper way of regarding them until their inspiration be clearly proved;) to read them with no more reverence than they would read any other book; to read them as being what they really purport to be, viz, nothing but narratives, and letters of exhortation and instruction; let them, in short for once read the books critically, discarding all idea of their being sacred, and I have little doubt their opinions will then concur with those here expressed.

Paul was in some respects distinguishable from the other Apostles. He had some talents, although a muddy intellect, and little judgment. He was violent, precipitate and unreflecting. He was bigoted, superstitious and dogmatical in his first faith, and little less so in his last. He was self-confident, boastful* and dictatorial to a disgusting degree. His forte was in teaching doctrines, the utility or reason of which, in as much as nobody else has understood, he probably did not understand himself. He was also crafty and deceitful, without appearing to reflect at all upon the character of such conduct; and this fact shows, either that he was not a rigid moralist in principle, or that he had very obtuse moral perceptions. His readiness to practice deception is exhibited in the following instances. He circumcised Timotheus to cheat the Jews, as appears by Acts 15—3. “Him would Paul have to go forth with him, and took and circumcised him, because of the Jews which were in those quarters, for they knew all that his father was a Greek.” When imprisoned at Phillippi, he falsified, and said he was a Roman, (Acts 16—37, 38) to alarm and impose upon those who had imprisoned him, supposing him to be, as he really was, a Jew. (Acts 16—20 and 21—Acts 22—3.) He repeated the same falschood afterwards, and declared that he was a Roman “freeborn,” (Acts 22—27, 28). This lie appears to have been told because some expedient of the kind seemed necessary to extricate him from the trouble he had got himself into.† Moreover he was ambitious, and appears to have been disposed in some cases, to turn his labors to a better worldly account than the other Apostles.‡ He was also revengeful, as appears by his second Epistle to Timothy 4—14. “Alexander the coppersmith did me much evil, the Lord reward him according to his works.” A wish, in which superstition and a vulgar spirit of revenge are more ludicrously combined, was perhaps never recorded, or even expressed.

That his pretence, before alluded to, of having been caught up into heaven, was all a fabrication, (instead of an account of a dream, which I suppose christians will think it to have been,) is rendered probable by the nature of the story, by the fact that he would not relate what he heard there, by his own bad character for veracity, by the necessity he was in of telling a marvellous story of some kind, and the circumstance that he thought it best to preface it (2d. Cor. 11—31) with the declaration that “the God and Father of the Lord Jesus Christ, which is blessed forevermore, knew that he was not lying.”

Let us now look at the character of the people who became converts. In the first place, the people, in general, among whom the Apostles preached, are proved to have been a simple, spiritless race of beings, from the facts that they appear to have had no laws, but to have been governed entirely by the will of a single deputy of the Roman power, who ruled over [4] them merely for the purpose of sponging from them as large a share, as he could, of their property, for the support of the grandeur of the Roman nation. It is probable, too that few could read, since but few in the most enlightened parts of the world could at that time read. Printing not being known, the books that then existed must have been in manuscript, and of course, must have been few and but little circulated. The people generally having no concern in the management of the affairs of government, and considering themselves, as they really were, the despised subjects or slaves of the Romans, they had no national or individual spirit to keep them from sinking into the most contemptible intellectual degradation. It is probable that few people are now to be found on the earth more destitute of every thing like character, than were the great portion of those, among whom the apostles preached. We see, by the accounts in the Acts of the Apostles, that they were addieted to the most petty and contemptible vices, and the most ludicrous and disgusting superstitions—believing in ghosts, and devils, and visions, and dreams, and evil spirits, and sorcerics, in prophelesses! (Acts 21—9) in the power of speaking with tongues, in miracles, in witchcraft, and apparently in all the other absurdities that superstition ever gave rise to. They were always agog for something new and marvellous in religious matters—indeed they appeared to care for little else. These credulous beings were continually imposed upon by men “boasting themselves to be somebody,” as, for example, one Judas, and one Theudas, who got sects after them, (Acts 5—36 and 37.) Their readiness to believe in every thing, that appeared to them to be miraculous, cannot be more plainly, or perhaps more ludicrously shown, than it is in Acts 5—15 and 16, where it appears that they brought the sick into the streets and laid them on beds, so that “at least the shadow of Peter passing by might overshadow some of them.” It appears also by Acts 19—12, that sick persons were cured, and evil spirits cast out by the efficacy of the handkerchiefs and aprons that had been about the person of Paul! What sort of “evil spirits” were probably cast out by the sight of Paul’s handkerchiefs? Or how bad was the “sickness” that could have been cured by these means? Can any one doubt, that if the handkerchiefs of another person had been used, and had been called Paul’s, so as to deceive the diseased person, the same miracles would have been wrought? Or can a man of common sense want any further proof that this affair of being possessed of devils, of which there are so many stories in the New Testament, and the supposed miraculous cures of diseases, were all shams—the mere works of the imaginations of those, who were of the number of the veriest simpletons that ever bore the name of men?

There is another account equally ridiculous, beginning at the 13th verse of Acts 19th, which shews what a stupid, superstitious and senseless race of beings some of those were, among whom Paul preached. It seems that some vagrant Jews attempted to cast out these evil spirits by uttering, over those that were supposed to be possessed of them, these magical words, “we adjure you by Jesus whom Paul preacheth.” It appears that they had adopted this method with one, and that “the evil spirit answered and said, Jesus I know, and Paul I know, but who are ye?” and then, instead of coming out of the man, it caused him (as the lookers-on supposed) to fly pell-mell at these impostors, and bruise, and beat, and strip them, and drive them out of the house. Now any yankee boy, a dozen years old, would see through such an affair at once; but when this came to be noised abroad, people looked upon it as an awful judgment from God, upon those who had attempted, for their own benefit, or without proper authority, to use the name of Jesus as a word of magic to exorcise devils. And the writer adds that this affair converted many, that “fear fell on them all,” “that the name of the Lord Jesus was magnified,” and he closes the account by saying, “so mightily grew the word of God and prevailed!”

It would be using the name of God profanely to introduce it into so contemptible a display of the credulity and superstition of those half-witted creatures, and of the manner in which they were imposed on by their own imaginations, were it not that it is necessary to do so, in order to expose the almost incredibly ridiculous absurdities, that men of the present day, without reflection, and as a matter of course, take for sacred and important truth.

In this case we have an exhibition of the amount of argument and evidence, that was necessary in the Apostles’ time to make a convert to Christianity. And unless the Clergy can deny this transaction, I should think it might be well for them to say no more about the difficulties of propagating the Christian religion.

The fact also, that a large portion of the early Christians believed the books now composing the “Apocryphal New Testament,” tells a tale that cannot be gainsayed for a moment. It confirms all I have said, and more than I have said, of the simplicity, credulity and superstition of those, who first embraced Christianity. It is no answer to these facts to say that there were some enlightened men in the countries where Christianity first spread. The mass were otherwise. And especially those, who first became converts, were such as I have described. And any man of common mind, who will read the “Apocryphal New Testament,” must say that men, who would swallow such stories, could easily be brought to believe any thing whatever, that fanatics or impostors could ever wish to make them believe.

With such a people, the more extravagant and marvellous a doctrine or narrative was, the better. In fact it was absolutely necessary that it should be so to a great degree, else they would not have listened to it for a moment. Imagine then such a reckless, headstrong, violent man as Paul, travelling from place to place, sometimes with his head shaved, (Acts 18—18;) [5] preaching even in the streets of cities, wherever he could get a crowd of the populace around him, telling men that the Son of God had been on earth in the form of a man, and had been cruelly slain; but that he had returned to life again; that he himself had been supernaturally converted, and had been appointed to preach for Jesus, to cure the sick and to cast out devils; telling them also that he was ready to cast out all the devils and heal all the sick they would bring to him; and is it strange, or unnatural, any thing more than might have been expected, any thing more than a matter of course, thatmultitudes should have been, some of them enraged, and others astonished, attracted and deluded, by such a strange innovation, and such an unaccountable attempt to upturn their accustomed religious observances, by the introduction of such novel and unheard-of notions? Such was the effect. If any one wish to form an idea of the excitement, that Paul sometimes caused, let him read the 19th chapter of Acts, and see what a hurly-burly and uproar was occasioned at Ephesus by his having preached there, and got a sect after him.

The novel character of the doctrines taught by the Apostles, and the marvellous nature of their stories about Jesus, constituted the bait, by which the people were caught at every step. And the success of this bait was aided by that credulousness, which brought the imaginations of those who were sick, or who only imagined themselves sick, (for such an abundance of sick people has seldom been heard of in any other case,) and the imaginations of those, who supposed themselves possessed of devils, to assist in working what they called miracles.

When we consider that there were twelve of these preachers, all engaged in preaching the same doctrines in various places, and that these doctrines were different from all others then believed, it is natural, if each preacher made the number of converts, which he would be likely to, that in a few years this sect must have become numerous, and from being widely scattered over the country, must have attracted the notice and curiosity of all.

Such then was the manner in which this sect was planted—other means afterwards contributed to cultivate and rear it. The soil we have seen was adapted to the nature of the plant—it was a rich compost of ignorance, superstition and credulity. During the lives of the twelve, they, by their personal labors, accomplished much, and it appears that they authorized many of the new converts to become their fellow laborers. In process of time the gospels were written, and these writings gave the Christians a decided advantage over those whom they were laboring to supplant. They thus became supplied with something, to which they could refer as an authority for what they preached. They could then produce written evidence, and such evidence too as would be likely to be satisfactory to a very large number of the credulous persons of that day. Since few books were then written at all, and since the greater portion of the people had probably no acquaintance with such as were written, they (if they were like those of the present day who are equally unlearned) would not presume to doubt or scrutinize the truth of any thing, which should appear in the form of a book. Not having any religious books of their own, the fact, that the religious doctrines of the Christians, and that the accounts of the marvellous circumstances under which those doctrines were communicated, should be written, was doubtless of itself, to them, a very wonderful affair, and was remarkably calculated to impress them with the idea that whatever the Apostles had told them must be true.

Another circumstance, which most powerfully contributed to the spread of Christianity, was, that the importance, which the Christians attached to a belief in their faith, was so great as always to keep awake among them a fanatical spirit of proselytism—a circumstance, which before their time had probably never been known to exist, on an extended scale, in favor of any other system.

The natural effect of these various causes would be to build up a great and numerous sect of Christians even in a few years. At length they began to be persecuted, and if persecution had the effect then, that it invariably does now, it must have powerfully aided the progress of their cause.

Another circumstance, which prevents the spread of Christianity, in the early periods of its existence, from being any thing remarkable, is, that it had nothing like a regular system to contend with, in those places where it spread. The few heathenish notions, that men had about “the Gods,” and about religion, had no foundation in any written authorities, but only in the vague and unaccountable traditionary superstitions of the people of those times. The Jews had a written system of theology, and Christianity could make few converts among them, although it pretends to have been more especially designed for them. In modern times it has made no considerable progress among any people, who have a written system of their own to appeal to—whereas if it had the least particle of miraculous power, it certainly would triumph over all other systems, whether they were written ones or not.

If any further evidence be wanted that the spread of Christianity was not supernatural, look at the spread of Mormonism, and see how, even at this day, and in this country, a miserable vagabond of a “Joe Smith,” in a short space of time, can put a large community in an uproar, and raise up a numerous sect of followers, full of faith and fanaticism, eager to believe any thing marvellous in relation to the book of Mormon, and the Mormon prophet, and ready to make any effort and any sacrifice for the propagation of the momentous truths of their Revelation. Look also at the success of Edward Irving’s attempts to make persons “speak with tongues,” &c. in England, and at the spread of St. Simonianism in France. Look even at the camp-meetings [6] and revivals here in New England, and observe to how great a degree the timid and superstitious will surrender their understandings to the guidance of any ranting parson, who has impudence, hypocrisy, and coolness enough to put on a solemn cadaverous face, and talk judiciously to them about hell, the devil, and other kindred matters. These things illustrate the credulity of mankind in matters of this sort, and the case with which a system might succeed in a superstitious and ignorant age, especially if the propagators had a few marvellous stories to relate, and could perform works that would pass for miracles; and after it had succeeded for a time, it would become so incorporated into the institutions and customs of the people that it would thereafterwards be believed as a matter of course, and without inquiry; in the same manner, for example, as Christianity is now by the great mass of those who believe it at all.

The fact, that some of the Apostles suffered martyrdom rather than renounce their faith, has been looked upon as evidence that they were engaged in the cause of truth. But martyrdom is evidence only of a man’s honesty—it is no evidence that he is not mistaken. Men have suffered martyrdom for all sorts of opinions in politics and in religion; yet they could not therefore have all been in the right; although they could give no stronger evidence that they believed themselves in the right.

The Apostles undoubtedly supposed they had seen Jesus perform miracles, and that, in circulating their accounts of him, they were telling the truth. They undoubtedly believed that they themselves could perform miracles of a certain kind, such as casting out devils, and healing the sick; although in reality, as I think has been shewn, the imagination must have, in many instances, and probably in all, created the malady, and as really, in all cases effected the cure, if there were any cure. But the Apostles, being simple men, understood nothing of the power of the imagination; and therefore honestly believed that all that appeared was real. They themselves were as superstitious as those to whom they preached. This fact is proved by such circumstances as these, viz. Paul had his head shaved because he had a vow, (Acts 18—18). Paul considered resigned himself forbidden by the Holy Ghost to preach in particular places, (Acts 16—6 & 7). The Apostles commanded the converts to abstain from things strangled, as if there were a wickedness in eating such, (Acts 15—28 & 29). When a young man had fallen from a window he was taken up apparently lifeless, (as persons frequently are after a fall); but on his reviving, it was esteemed a miracle, as well by Paul himself, it would seem, as by the bystanders. (Acts 20—9). Peter imagined himself delivered from prison by an angel, (Acts 12—5 to 11); although the conduct of the supposed angel was precisely such as we may reasonably suppose would have been that of a man, who should have attempted to liberate him. For example, a light shone in the room, (as would have been the case if a man bad gone in, for he would have undoubtedly carried a light in with him); the supposed angel struck or touched him on the side, (to wake him evidently, just as a man would have done); “raised him up,” and said to him, “arise up quickly, gird thyself, and bind on thy sandals, cast thy garments about thee, and follow me,” (precisely as a man would have directed him). It is evident that the guard must have been asleep, whether the being, who liberated Peter, were an angel or a man; for Peter was not detected in going out, although he would as likely have been when in the company of an angel, who should walk before, as this one is said to have done, as in the company of a man. Peter supposed that the gate opened of its own accord; but he was liable to be mistaken as to this fact, because a man would be very likely to leave it open as he went in; or if he did not leave it open, he would undoubtedly leave it in such a condition that he could open it readily, and without any such effort as a person walking behind him would be likely to observe. After they had thus left the prison, and “had passed on through one street,” the supposed angel “departed from him”—probably he took one street, as a man would have done, and that Peter took another.

Now although this supposed angel conducted precisely as a man would have done, and although Peter said, at the time, that the whole transaction appeared to him like a dream, yet afterwards he said he knew certainly “that the Lord had sent his angel to deliver him.” This fact shews the superstition of the man, and his readiness to attribute, to the supernatural interference of Deity, occurrences that could be accounted for in a natural manner.

A paragraph, beginning at the 23d and ending at the 28th verse of Acts 28th, shews by how simple an affair Paul was led to imagine that the Lord had given up to destruction the Jews, whom theretofore Jesus had been supposed to be sent more especially to save; and that it was his (Paul’s) duty to abandon them, and preach to the Gentiles.

If any one wish for further evidence of the weakness and superstition of the Apostles, or their converts, let him read the Acts throughout, and if he be an unprejudiced man, he will see evidence enough of these facts at every step.

I must now suppose that the manner in which Christianity was propagated, has been pointed out so as to make it apparent that there was nothing miraculous in it. But if any will still insist that Christianity is a revelation from God, made to men to save their souls, let him, if he can, account for the fact that God did not cause it to be spread over the whole world at once, in a year, or day. It was as important, if this system be true, that it should be spread, as that it should be revealed, and God could have miraculously spread it, as easily as he could have miraculously revealed it. There is no sense in saying that he has committed to men the business of spreading this religion; for it is manifestly absurd to suppose that he [7] would entrust to men the completion of a design, which he had himself commenced, and which it was so immensely important to have completed at once; when he must have known the beggarly success that men would meet with. How happens it then that the Christian, after eighteen centuries, is a religion of such limited prevalence? How happens it that this wonder-working Revelation, which set out to revolutionize and reform society, and save the human race, has not become more generally known in the world? Why, one reason is, that it is not, after all, quite so wonder-working an affair as it has been cried up to be. And another reason probably is, that the Almighty, instead of miraculously aiding its progress, never has miraculously aided it.

But, above all, how comes it to pass that such a sovereign cure for souls has not been more universally adopted where it is known? One reason may have been that men have often doubted whether souls have any mortal diseases; and another has been, that this alleged specific has found somewhat of an obstacle in the common sense and reason of mankind. Sensible men, particularly in modern times, have generally had doubts, or some thing more than doubts, whether this pretended revelation was after all any thing more than the offspring of superstition, delusion, or imposture. In short, they have not believed it. A considerable portion of the male adults, who pretend to be Christians, do not believe it. They wish to believe it; they think it best to believe it (because they think it useful)—they dread to disbelieve it—they have a sort of lingering reverence for it—they perhaps persuade themselves that, on the whole, they do believe it—yet they do not in reality. They have a prejudice in its favor—not a conviction of its truth founded on evidence. They cannot help suspecting that it is a thing not to be inquired into; that it is neither reasonable in itself, nor founded on reasonable evidence. One proof of this is found in the fact that they are afraid to have the community inquire into the evidences against it, or to have these evidences propagated, and this at a time too when it is the established policy of society to encourage discussions on other matters as being the surest means of eliciting the truth. The Clergy especially would shut out every thing like light, and stifle every thing like inquiry on this subject, and the miserable rant and declamation, to which, instead of arguments, they resort to effect these objects, shew that they are aware that Christianity will not bear an examination. Although they know that a large portion of the male part of the community are unbelievers, they choose to let them remain such, if they will but keep silent, rather than to run the risk of a more general overthrow of Christianity by a discussion, which they might awaken for the purpose of establishing it. When they are pressed with arguments against the truth of Christianity, they attempt to divert the public mind to the question of its utility, as if its truth was not the first thing to be settled. Why this mean unmanly practice of subterfuge and shuffling? this refusal to meet argument? This shrinking from the responsibilities of their station? It is, as I believe, because that, like other hired troops, they have no principles which require them to put at hazard their interests. It is because their cowardice, selfishness or prejudices are too strong for their consciences and reason. It is because they are but too certain that if a free discussion of this subject be permitted, truth, operating on their own minds, or the minds of the people, will require them to abandon their calling, and surrender their consequence in society. It is, in short, because that, at the bottom of all their other opinions and feelings on this subject, there is a lurking apprehension, (I dare almost say conviction,) that their disgusting system is but chaff.*

CHAPTER II.: The Nature and Character of Jesus.

Before proceeding to the examination of the alleged miracles of Jesus, it is desirable that we form an established opinion in relation to his personal nature and character; for if we suppose him a mere man, we shall be the more ready to suspect that his alleged miracles were not real; on the other hand, if we give him a super-human nature, we shall be more inclined to believe the contrary. What evidence then is there, previous to his beginning to work miracles, that tends to show that he was possessed of any other than a human nature?

[8]

We are told, in the first place, that he had a miraculous origin; that God (or the Holy Ghost) was his father, (Mat. i. 20—Luke i. 35), and Luke (i. 35) gives this fact as the reason why he was to be called the Son of God. But let us see whether this fact were so.

It is clear, on the one side, that if he had such an origin, no single human being could have had personal or absolute knowledge of the fact except his mother. Now, if we had the direct declaration of the mother that such was the truth, it would be idiocy to pretend that a fact, admitted to be contrary to the order of nature, and such as the whole world never witnessed before or since, ought to be taken as true, on the bare assertion of a single person, and of a person too, who, on the natural supposition in relation to her case, must have been under one of the strongest of all possible earthly temptations to deceive.

But we have not even her testimony to this point. We have only the simple declarations, made by two men (Matthew and Luke) more than forty years afterwards—men, who could not have personally known the truth of what they stated; who unquestionably never heard a syllable of the matter until thirty or forty years from the time when it was said to have occurred; who give us no account, either of the manner in which, or of the persons from whom, they obtained their information; and who differ widely in their account of the circumstances attending the transaction—Luke relating many marvellous preliminaries of which Matthew makes no mention, although they are such as he too would be likely to have related, if he had ever heard of them. Now he must have heard of them, if he had obtained his information of the principal fact from Mary, who was the only person that could have absolutely known that fact, if it were true.

It is evident, therefore, that each of these men took up some one of the unattested stories, floating in that superstitious, credulous, ignorant, and deluded community, forty years after the supposed transaction.

After Jesus had begun to preach, many believed him to be a super-human personage, and it is easy to see that that circumstance alone would give rise, among those simple men, to many conjectures about his origin; and every one of his followers would be desirous to believe that it was supernatural, and would, for the sake of thus believing, catch at the slightest suggestion, conjecture or circumstance, as sufficient evidence that it was so. Stories, thus originating, would at once circulate and gain currency among such a class of men as his followers were; and the marvellous character of the stories, instead of being an objection to their credibility, would only make them the more credible to the minds of those who were ready and eager to believe any thing supernatural, in relation to one, whom they considered the most marvellous personage that had ever appeared on earth.

But there is no ground for any pretence that he had a miraculous origin, unless he derived it in the particular manner related in the Bible; and in order to believe that he derived it in that manner, it is necessary to believe—what? Why, that Deity became physically a parent! (Luke i. 35). The verse is here simply referred to, without being quoted; for it is fit only to be recorded with some of the fabulous accounts of the Jupiter of the ancients.*

As to the miraculous occurrences at his birth, such as the appearances of angels in the air, &c. there is no more reason to believe that they actually took place, than there is to believe that those did, which are related to have happened at the birth of Mahomet—nor even so much (if there can be the slightest reason in the world for believing either); for those people among whom Christianity first spread, were probably even more simple and superstitious than those among whom Mahometanism first spread, and consequently such marvellous accounts, if equally untrue, would be more likely to gain currency among them than among the latter.

But the Bible itself contains the most direct proof that the accounts about his origin, and about the supernatural appearances at the time of his birth, are both untrue.

If either of these circumstances had been true, his own parents must have preserved the remembrance of it, and would forever after, have looked on him as an extraordinary being. But the story, which is told of his conduct at Jerusalem when twelve years old, would, if true, entirely prove that, up to that time, they had not so viewed him. This story (Luke ii. 48 to 50) represents his parents as being “amazed” at seeing him in the temple; and when he asked them, “wist ye not that I must be about my father’s business?” “they understood not the sayings which he spake to them.” Now, if the accounts in relation to his birth were true, they must have forever after viewed him as the Emanuel, and must, of necessity, have understood what he meant by being about his father’s business. So that either Luke’s story of his origin and birth, or the one of his conduct at Jerusalem, must necessarily have been false; and if either of them be false, the Bible is not a Revelution from God. There is no room for reasonable doubt, that one story is as false as the other, and that these ignorant and simple biographers, who have related so many things, (of which these are a part,) that they could not have known to be true, even if they were true, picked them up thirty, forty or fifty years after they relate them to have happened, from among the thousand unfounded ones, that would naturally be in circulation about him.†

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Again. If even the story of his conduct at Jerusalem alone had been true, he must from that time have been viewed with astonishment by his family, and regarded by them as an uncommon being. If they had been, (as they probably were,) as superstitious as the ignorant part of their countrymen generally, this single incident of his conduct at Jerusalem would have made him, in their eyes, an inspired man. Yet there is not, that I am aware of, the slightest evidence that, after this time, until he began to preach, they did so look upon him. On the contrary, there is the most direct proof that his brothers did not—for when he pretended to be able to work miracles, they taunted him with his pretensions, (John 7—3, 4 and 5) by telling him, if he could do such things, to show himself to the world, and also (evidently out of contempt towards him for the course he had taken) that no man, who sought to make himself publicly known, performed his miracles in secret. This disrespect and contempt they never would have exhibited towards him, if they had ever been informed by their parents, (as they undoubtedly would have been, if the circumstances had actually happened, and that too for the very purpose of procuring him respect from them,) either of his having had a miraculous origin, of any remarkable circumstances attending his birth, or that he had ever exhibited to them any of that precocity, which he is related to have displayed at Jerusalem.

Furthermore, if God were ever to violate the order of nature, he would not be likely to do it unnecessarily—and an occurrence, such as that in which Jesus is said to have had his origin, must have been useless, on the supposition that men would act rationally in judging of its reality from the testimony of the only one, who could have had absolute knowledge of the fact.

Finally, Jesus was human in all his appearance, from his youth up; he is supposed to have laboured like a man; he lived like a man; he looked like a man; his own brothers esteemed him as nothing but a man; he was born of a woman; and unless God were his father, he was a man and nothing but a man.

But Christians say there is still other evidence—separate from the miraculous—which tends to sustain the divinity of Jesus. We are told by them that the moral grandeur and importance of the object, at which he is said to have aimed in his public career, is of this kind. Now, as it is possible that a mistake exists as to the nature of this object, some inquiry in relation to it is proper.

There has always been a disagreement between the Jews and Christians, as to the real design of Jesus in attempting to gain followers in the manner he did. The Jews always contended—and they surely had the proper means of knowing—that he was only one of many, who started up nearly at the same time, and claimed to be entitled to reign over the Jewish nation as temporal, or perhaps rather as semi-temporal, semi-spiritual kings—as such kings, in short, as the one, whom the Jews, who Jepended specially upon the Almighty to send them rulers, expected would, about that time, be sent to them.

It had been predicted, by those, whom the Jews considered prophets, that an extraordinary king, to be called the Messiah, would be sent to that nation.

What the particular terms of all the predictions were, need not here be set forth, since it is admitted by Christians that they were such, as that the universal opinion, gathered from them by the Jews, to whom they were addressed, was, that this Messiah was to be at least a temporal, though perhaps also a religious, ruler.

It is admitted by Christian writers that, at and about the time of Jesus, a large number of persons appeared in Judea, who claimed to be the Messiah that had been predicted as about to come, and who went about attempting to gain adherents by pretending to work miracles, &c.*

It is further admitted by all Christians, that the Jewish nation en masse looked upon Jesus as having the same object in view as these other pretended Messiahs; and it is also admitted by many Christians, that up to the very time when Jesus was taken and crucified, even his own confidential and immediate adherents, who, if Jesus had been honest towards them, must have known his real purposes, so far looked upon him in the same light as did the Jews, and in the same also as it is supposed the followers of the other pretended Messiahs looked upon them, as to believe that he was aiming at the acquisition of the temporal government of the Jews. And yet Christians now say that it is reasonable to believe that Jesus, although he claimed to be the Messiah, aimed at an object widely different from what was universally expected of that Messiah, and at an object widely different from what, during nearly the whole of his career, his own adherents supposed him to be pursuing.

[10]

Now it is clear that these admissions of Christians, as to what were, up to the time of his crucifixion, the ostensible designs of Jesus, and their pretensions as to his real designs during the same period, can be reconciled only by supposing, that, for so long a time, at least, he knowingly cheated and deceived his best, truest, and most intimate friends. It is preposterous to say—as christians are obliged to do, in order to extricate their case from this dilemma—that these disciples were such dunces, (although that they were simple men I agree) that, for a year and a half or more, (the time he is supposed to have been with them), Jesus found it impossible to make them understand the difference between a being, who came to establish an universal religion, and one who came merely to govern, as a king, the little territory of Judea; because men so foolish as that supposition would make them, could never have been educated so as even to be what some of these disciples afterwards became; and because also men could hardly be so simple as to be unable to distinguish between things so widely different.

It may be true, and probably is, as John says, (18—36,) that, after his followers had deserted him, and he found himself in the power of his enemies, he told Pilate that “his kingdom was not of this world;” but he appears to have been himself brought to that conviction just at that time, and solely by the fact that his former supporters had abandoned his cause, for he immediately adds, “if my kingdom were of this world, then would my servants fight, that I should not be delivered to the Jews; but now is my kingdom not from hence.”

But whatever may have been his opinion of himself, or whatever may have been his own ideas of the destiny for which he supposed God had designed him, after he was apprehended, the evidence is abundant as to what had previously been his purpose.

One important part of this evidence is, that Daniel—the only one, I believe, of the supposed prophets, who mentions a Messiah by that name—had evidently described him (Chap. 9—25, 26,) as one, who was to be the temporal king of the Jews; and Jesus, imagining himself to be this Messiah, would naturally try to fulfil the prediction by making himself answer the description as well as he could. And we accordingly find that he not only continually represented himself as the Messiah, but that there is also an evident attempt, on the part of his biographers, to make it appear that he had fulfilled the predictions, which had been made concerning the Messiah.

Another piece of evidence, to the same point, is found in John, (6—15,) where it is related that the people, who followed him, wished then “to take him by force, and make him king;” a thing, that, it would naturally seem, they never would have thought of, had he not intimated to them that he was, at some time, to become their king.

Another fact, which shows that he expected to have become the king of the Jews, is, that he once rode from Bethany to Jerusalem in a very triumphal and kingly manner, attended by a great body of men, who were shouting in a manner clearly indicative of their belief that he was a descendant of David, and was about to take possession of the throne which David had occupied. (Mat. 21—1 to 11. Mark 11. Luke 19—28 to 44. John 12—12 to 15.) Now if he did not intend to become their king at this time, as they expected, he was fraudulently sanctioning the mistake, under which he must have known they were acting, and must have knowingly led them on in a delusion. The only supposition therefore, that is consistent with his honesty, is, that he himself expected at this time to be made king.

It appears also (John 12—14, 15) that “it had been written,” that a king of Jerusalem should come to that city, “sitting on an ass’s colt,” and Jesus at this time took pains to have an ass’s colt obtained for him to ride on, (Mat. 21—1 to 7.)

John himself acknowledges (12—16,) that even “his disciples understood not these things at the first;” that is to say, at the time when they not only saw, but joined in, all this pageantry, they did not understand that they were paying homage to one, who was to be a spiritual king; and if they did not so understand, there can be no doubt as to what kind of a person they thought they were honoring. So that Jesus, according to the express acknowledgment of his own advocate, must either have deceived this whole crowd of followers, or he expected at this time to have been made king; because the impression, that he was about to become their king, could not have become so universal, and continued so long, among this crowd, unless he had directly countenanced it. John indeed represents (12—16) that after “Jesus was glorified,” (or risen, as they supposed, from the dead,) they understood exactly what these things, which at the time of their occurrence, they did not rightly understand, must have meant. But this was all an after thought, on the part of the disciples, and is therefore good for nothing to the advocate of Christianity, although it enables the unbeliever to see how it was, that the re-appearance of Jesus after his crucifixion, (a thing for which they could not naturally account) turned the heads of his followers, and made them see every event, which had previously taken place, in a very different light from that true and natural one, in which they had viewed it at the time of its occurrence. After he was “glorified,” they “glorified” and spiritualized every thing that he had previously said or done, and, by so doing, they gave to this benighted world a Revelation fit for use.

When Jesus, in this triumphal ride, had come near to Jerusalem, (Luke 19—37 to 44) some of the Pharisees told him to “rebuke his disciples,” (meaning undoubtedly, by ‘his disciples,’ the crowd generally who were attending him,) and they would be likely, under such circumstances, to say to him many other things, which his biographers would not choose to tell [11] to us. But the fact, that the Pharisees, who were among the principal men of the Jews, told him to rebuke his followers, shows that they had no idea of receiving him, and he was probably thereby convinced that he could not be made king, for he immediately falls into a lamentation for the fate of the city—not for the souls of the Jews, as he would naturally have done, had he designed to be only a spiritual redeemer—but for the fate of the city itself. He virtually says that if the Jews would have accepted him as king, their city would have been safe; but now, he says, that “its enemies shall cast a trench about it, and compass it around, and keep it in on every side, and lay it even with the ground,” &c. Now this is not the language of a purely spiritual teacher; it is precisely such language as we might reasonably expect to hear from a man, who wished to be the ruler of a people, but who, on being rejected as such, should endeavor to alarm their fears for the fate of their city. Or it is such language as we might reasonably expect to hear from a man so deluded as to imagine that he had been appointed by God to be the deliverer of a city, but, who, on finding that he could not become its deliverer, should suppose, as a matter of course, that it would fall into the hands of its enemies and be destroyed.

The desertion of Jesus, by his followers, furnishes an argument in support of the supposition that he attempted to be king of the Jews, rather than that he was a superior being. There was a time when he had a company, estimated at about five thousand, following him, (John 6—2, 10). Yet they soon began to leave him, (John 6—66, 67) and but a handful finally remained. Now it would be nothing strange that the followers of a man, who was attempting to make himself king of the Jews, should, after a little time, desert his cause; but it would be very strange if a Son of God should either be unable to make proselytes of all who should come to hear him, or should fail to keep them after he had once made them.

When he was finally taken prisoner, the universal charge against him was, that he had claimed to be the “King of the Jews.” The people scoffed at, and insulted him, on that very account. They placed a mimic crown on his head, put on him a purple robe, and jeered him with “Hail, King of the Jews.” How are this unanimous opinion of him, and sentiment towards him, to be accounted for, otherwise than by supposing him to have attempted to make himself a king? The answer is obvious—they cannot otherwise be accounted for.

Luke says also, (23—1, 2) that men declared before Pilate, that they had “found that fellow perverting the nation, and forbidding to give tribute to Cæsar, saying, that he himself is Christ, a King.” Yes, he even went so far as to forbid his adherents any longer to pay tribute unto Cæsar, and gave as a reason why they should not, that he himself was a king, (their king). But Christians will probably say that these men did not speak the truth. And what reason have we to believe that they did not? Did any one contradict what they stated? No—every body, at that time, acquiesced. Still, because they told a natural and probable story about Jesus Christ, instead of a marvellous and improbable one, they are not to be credited; because they made neither a God, nor a Son of God, out of “this fellow,” they must be set down as “false witnesses;” because there were several, who said that they heard the same language, they must all have conspired to destroy him by false testimony; because their statements corroborate, and are corroborated by, what had already become notoriously the public belief, they must of course be untrue; because, in short, these men testified against Jesus, instead of testifying for him, they are not to be believed. This is the kind of reasoning to which Christians must resort.

Jesus once told his disciples (Luke 22—23 to 30) in substance, that as a reward for their fidelity to him through all the difficulties and opposition he had met with, he should give each of them a kingdom, and that they should “sit on thrones, judging the twelve tribes of Israel.” Now if he meant earthly thrones, he of course was himself to be an earthly king, for his language evidently implies that his twelve disciples were to be kings under him. His language is, “I appoint unto you a kingdom, as my Father hath appointed unto me; that ye may eat and drink at my table, and sit on thrones, judging the twelve tribes of Israel.” Observe, they were to eat and drink at his table at the same time that they were to be kings over the tribes of Israel; of course, if their thrones were on earth, his table must have been on earth too, and he must have been an earthly king. But the Christian will reply that these thrones were to be thrones in heaven. Well, be it so—what then is the inference? Why, that they have kings in heaven.

The evidence already offered ought, as it seems to me, to be decisive; but there is one additional fact, which, if it do not prove that he attempted to make himself king, does, nevertheless, put it beyond a reasonable doubt, that, up to the time when he was seized, he had had no such object in view as Christians pretend. It appears (Luke 22—26, 37, 38.) that in the evening before he was apprehended, and after Judas had left the room under circumstances, which led Jesus to suppose that he was going to prove treacherous, he directed his remaining disciples to provide themselves with swords, evidently in order that they might be prepared for any danger, that might ensue. And when his disciples told him ‘ “here are two swords”—(an incident, which shows that after their affairs began to grow desperate, they kept swords by them) he assented to their taking them by answering “it is enough;” and it appears afterwards that the swords were accordingly taken. Now I suppose it can hardly be necessary to go into an argument, even with Christians, in order to prove that a real “Prince of Peace,” a purely religious or moral teacher, or any Divine Being, just as he was about to [12] offer up his life voluntarily for mankind, would not be very likely to put swords into the hands of his followers. The single fact, that Jesus should ever authorize his followers to arm themselves with swords, brushes away, at a single sweep, all the subsequent conjectures and assertions of the ignorant, simple and deluded men, who followed him, that he intended only to be a moral or religious teacher. The confidence too, with which, when he was about to be seized, his disciples appoaled to him with “Lord, shall we smite with the sword?” and the manner in which Peter rushed on and struck off an ear of one of the party, show that Jesus had given them other lessons than that of turning the other check also. Nor is the inference, naturally to be drawn from these facts, to be avoided, by saying that Jesus forbid the further use of the swords, after Peter had thus employed his; because it is evident that he encouraged their use until he found the numbers against him too great to be resisted with safety. These circumstances show that his command to his disciples, to desist from further violence, was a matter of policy instead of principle.

There can be no doubt as to the fact, that this party had swords with them at this time, for it does not rest on the testimony of Luke alone. Matthew and John, who were of the twelve, and probably were on the spot at the time, both say that a man’s ear was cut off with a sword.

It is clear, therfore, from these facts, that Jesus could not have been such a personage as Christians believe him to have been; and if he was not, it is of no consequence to us what he may have been, although the evidence may leave us in no doubt in relation to it.

Taking it for granted then, that the evidence has settled the question, so far as it was necessary to be settled, in relation to his object in his public career, we come now to another matter, to which Christians refer as evidence of his divinity, viz, the alleged perfection of his personal character. This point will be examined, although somewhat of his personal character has already been developed.

Perhaps the most couspicuous defects in his personal character were, 1st, his readiness to resort to subterfuge, when challenged to work miracles, by those who doubted his miraculous power: 2d, his propensity to practice concealment; and 3d, his notorious cowardice. A few instances only of conduct, illustrative of each of these characteristics, need be referred to.

As evidence of his readiness to resort to subterfuge, when challenged to work miracles by those who doubted his miraculous power, the following cases are deemed sufficient.

On one occasion (Mark 8—11 to 13) when some of the Phariseess came to question him, and asked him to show them a sign—apparently that they might judge of the justice of his claims to be the Messiah—he pretended to his disciples that these Pharisees were a very unreasonable set of men to ask such a thing of him, and said he would give them no sign, but left them and departed.

Mark says that their object was to entrap him, or to work some mischief with him—but how did Mark know that they had any other design than their question implies? The biographers of Jesus were very good at conjecturing reasons, finding apologies, and hunting excuses for the dastardly conduct of their master.

At another time, (John 2—13 to 21) when he had been attempting to drive the Jews from the temple, and they had asked him—as they reasonably might do—what sign he could give them as evidence of his right to do so, the only sign he proposed to show them was this, that if they would destroy their beautiful temple—a thing which he knew of course they would not do—he would rebuild it in three days. Is it possible to imagine an evasion more mean or contemptible?

John says that Jesus, in this instance, referied to “the temple of his body.” But if he did, he acted the knave outright, because he must have known that he was deceiving those whom he addressed.

Once (Luke 4—16 to 30) in his travels he came to “Nazareth, where he had been brought up,” and where he was probably known. He here told the people that he was the one who had been prophesied of, but virtually acknowledged that they had a right to expect he would work miracles, for he said, “ye will surely say unto me, whatsoever we have heard done in Capernaum, do also here in thy country.” But, as an excuse for not working any miracles, he made use of this despicable pretence, viz: that “no prophet is accepted in his own country”—inuendo, that it would be of no avail even to work real miracles before those who knew him. It appears—putting the natural construction upon the remainder of Luke’s story—that the people thereupon thrust him out of the place, dragged him to the brow of a hill, frightened him by pretending to be about to cast him headlong down it, and then let him go. And, in my judgment, he had no reason to complain of the treatment he received.

On another occasion John says (6—30) that the people put the question to him directly, “What sign showest thou then, that we may see, and believe thee? What dost thou work?” It appears, from the context, that these men had taken much pains to find him, and had come from a distance to see him; and although their question indicates an intention to be convinced by nothing less than a miracle, they, at the same time, declare their intention to believe in him, (the very thing he desired of all men,) if he would but work one plainly. In all this they asked nothing which was not entirely reasonable. They desired only that he should exhibit the credentials, which he professed to carry with him, as evidence of his authority. They, in fact, offered him just such an opportunity as a real miracle-worker would have desired. But Jesus, [13] instead of working a miracle, chose to talk about something else, about their motives in following him, about his being “the bread that came down from heaven,” &c., and went on talking about one thing and another, that had nothing to do with the miracle which they had challenged him to work, until (John 6—60, 61, 66, and 67) the company left him in evident disgust.

I suppose Christians would say, as John says that Jesus intimated, (John 6—26) that he had already wrought miracles before them, and since they did not give him credit for them, it was not his business to go on working them. Now this apology is but a poor compliment to the character of his miracles, for it assumes that they did not convince eye-witnesses. But—leaving that consideration—how did Jesus know that these particular men, who had now come so far, apparently for no other reason than to ascertain whether he could work miracles, had ever before seen him work what he called miracles? Besides, their question implies that they never had seen him work a miracle, and their declaration is, at least, as good, in such a case, as his. Admitting it therefore to be true—as we must do until the contrary be unequivocally proved—that they never had seen a miracle wrought by him, he was without excuse in refusing them, and his conduct is to be accounted for, only by supposing that he could not work miracles before those who were disposed to insist upon seeing a real miracle, and not to be satisfied with one of the common kind of pretended miracles, such as great numbers of persons, at that time, were in the habit of performing.

Another defect in his character, which was to be mentioned, was his propensity to practice concealment. He again and again, when he had done something, which his biographers have called a miracle, charged those, who were with him, “to let no man know it.” In one instance (Mark 1—40 to 44) where he is said to have cured a leper, after he had done it, “ho straitly charged him, and saith unto him, see thou say nothing to any man.”

In a case, (Mark 8—22 to 26) where it is said that he cured a blind man, “he led the blind man out of the town” to do it; and not satisfied with that, he told the man, when the work was done, “neither to go into the town, nor tell it to any in the town.”

In the case (Mark 5—37 to 43) where he is said to have restored to life the dead daughter of Jairus, he suffered none but Peter, James, John and the father and mother of the child to go into the room with him, although others desired to go in; and when the scene was over, he even “charged” those, who had been witnesses, “that no man should know of it;” and John in his biography of Jesus, says not a word about it; and we are indebted, for such a story as we have, to those who were not eye-witnesses.

In another instance, (Mark 7—32 to 36) where he is said to have cured (after a great deal of apparently unnecessary ceremony) a man, who “was deafand had an impediment in his speech,” “he charged” those, who had been present, “that they should tell no man.”

In still another case (Mat. 9—27 to 30) where it is related of him that he cured two blind men, after the work was done, “he straitly charged them, saying, See that no man know it.”

Is there any excuse for such conduct as this in a real miracle-worker? Was not the taunt of his brothers well applied, when they said to him, (John 7—4) in substance, that no man did his works in secret, when he was seeking to make himself publicly known, and told him, if he could work miracles, to do it before the world?

His brothers appear to have been men of some understanding—for, although they, like the rest of their countrymen, believed in miracles, yet they saw readily enough that for a pretended miracle-worker, either to avoid the scrutiny of those who doubted his miraculous power, to select the right kind of witnesses of his acts, or to be careful to have no witnesses at all, was “no way to do things.”

He appears also to have been very cautious, in the early part of his career, that the public should not know that he claimed to be the Messiah. He once (Mat. 16—13 to 20. Mark 8—27 to 30. Luke 9—18 to 21) asked his disciples, “Who say the people that I am?” And when they had told him that men had different opinions about him, “He saith unto them, But who say ye that I am?” Peter then expressed his belief that he was “the Christ.” Whereupon “he charged his disciples that they should tell no man that he was Jesus, the Christ.”*

Cowardice was another defect in his character, and it is made so manifest that it cannot be concealed. He repeatedly betrayed it by fleeing from his enemies, and by so doing, he must have brought himself, and his pretensions into public contempt.

When his disciples came to him, and told him that John the Baptist had been beheaded by order of Herod, (Mat. 14—12, 13) “he departed into a desert place apart;” or, in plain English, he fled.

John says, (10—39, 40) in speaking of another occasion, “Therefore they sought again to take him, but he escaped out of their hands, and went away beyond Jordan, and there he abode;” that is to say, he run away, and stayed away.

On another occasion also John says, (11—53 and 54) “Then from that day forth they took council together for to put him to death. Jesus therefore walked no more openly among the Jews.”

[14]

Matthew says, (12—14, 15, 16) in still another case, “Then the Pharisees went out, and held council against him, how they might destroy him. But when Jesus knew it, he withdrew himself from thence, and charged his followers that they should not make him known:” that is, he took himself off, and told his friends to let nobody know where he had gone.

John says again, (8—59) “Then took they up stones to cast at him; but Jesus hid himself, and went out of the temple,” &c. Yes, it seems that this Son of God, in a case of emergency, could even “hide” himself.

But the most contemptible instance of the cowardice of Jesus is related by John, (7—1 to 10) who says of him, that “he walked in Galilee, for he would not walk in Jewry, because the Jews sought to kill him.” He then adds, that the feast of Tabernacles was at hand, and that his brothers wished him, if he could work miracles, to go up to the feast and perform them openly. They also taunted him with doing his works in secret. But neither solicitations nor taunts could induce him to go with them. He attempted to excuse himself by saying that the world not him; and said to them, “Go ye up to this feast, I go not up yet unto this feast, for my time is not yet full come.” What then did this man do? This bold reformer? This pretended Messiah? This man, who afterwards (Mat. 26—53) said that he could call upon his Father, and he would give him more than twelve legions of angels to protect him? Why, he remained behind until his brothers had gone, “but (to use John’s own language) when his brethren had gone up, then went he also up to the feast, not openly, but as it were in secret.”

The man, who can read these accounts of his secresy, his cowardice, and of the miserable subterfuges to which he would resort to prevent an exposure of his incapacity to work miracles before scrutinizing eyes, and not feel “ashamed of Jesus” as a Master, must not only be quite content to have a master, but very indifferent in his choice of one. And be it not forgotten, that those, who, after having had their attention called to this conduct of Jesus, shall continue to advocate Christianity, must practice the effrontery of pretending that this creeping, skulking, hiding, flecting fellow was acting a part appropriate to a Son of God, and exhibiting a perfect pattern of moral greatness.

Such, be it remembered, is one part of the character given to this man by his best friends. It is no “enemy that has done this.” It all comes from men, who evidently did not intend to let out any thing, which would make against their cause, but who happened to be too simple always to know what it would be expedient to keep back. And we can easily judge, from the character given to this man by his friends, what an one would have been given to him by an unbelieving eye-witness, if such an one had cared enough about him to take the trouble of exposing the whole of his conduct.

Christians have the opinion that Jesus, at last, delivered himself up, magnanimously and willingly, a martyr for the benefit of mankind. Now this opinion is founded entirely upon the improbable, to the rejection of the probable, part of the contradictory testimony in relation to his conduct on that occasion. The probable part of the testimony (and there is enough of it for my purpose,) goes, directly and manifestly, to show that Jesus skulked and endeavored to escape in this instance, in the same manner he had so often done defore.

But before introducing this testimony, let us look at the absurdity of that which Christians adopt. The latter is, that at the supper, on the evening before Jesus was taken, it was understood between him and Judas, that the latter should betray him; that Judas thereupon left the room, obtained a posse of men, went in search of Jesus, and found him, not in the room where he had left him, but concealed in a garden; that he approached him, addressed him as a friend, and kissed him; that Jesus then addressed Judas as a friend, saying to him, “Friend, wherefore art thou come?” (Mat. 26—49, 50.) Now is it to be supposed that such a solemn farce of affected friendship would have been acted over between two men, if it had been previously understood with certainty, that the one would turn enemy, and deliver the other into the hands of those who would put him to death?

It is nevertheless probable that, previously to the supper, Jesus had seen reason to suspect the fidelity of Judas, and that, when he saw him leave the room, he apprehended that an immediate attempt was to be made by Judas to have him seized. This supposition accounts for Jesus’s leaving the house, after the departure of Judas, and going as he did, in the darkness of the night, into the concealment of a garden. (John 18—1.) It is natural too, that, when Judas approached him in the garden, Jesus, seeing that escape was impossible, should return a friendly reply to the salutation of his suspected enemy, because he might have irritated one whom he feared, if he had showed any suspicion of his malicious design. But it is beyond credibility, if it had previously been explicitly understood between them, that Judas should act the enemy, that Jesus should thus seriously address him as a friend.

This particular story about Jesus’s conversation with Judas at supper was probably made up or “glorified,” by these apostles, out of something that had passed, as some other conversations appear to have been, for the purpose of making it appear that their “Divine Lord and Master” could not have met with any disaster, which he had not forseen, and intended to meet. Jesus’s alleged predictions (which none of his disciples appear to have understood at the time they were made) that he should rise again, were probably manufactured, or “glorified” out of something or other, and in the same way, to meet the necessities of the case, or to make every thing correspond with the ideas, which they had come to entertain of Jesus, at the time they wrote.

[15]

Perhaps it will be thought strange that Judas should have found Jesus in the night, if there had been no previous concert between them. But John says (18—2) that Judas knew where this garden was, and knew also that Jesus often went there with his disciples. He therefore, after having procured men to go with him, probably went first to the house where he had left Jesus and his disciples at supper, and on not finding them there, suspected this garden to be the place of their concealment.

There are several items of testimony, which tend to show that Jesus intended, at this time, to escape the danger, which he apprehended to his life. One is, (Mat. 26—24) that, at the supper, he said, in the presence of Judas, (whom, as was before remarked, he probably suspected of having a design against him,) “wo unto that man by whom the Son of man is betrayed! it had been good for that man if he had not been born.” What was the occasion for such a remark, unless it were intended as a menace to deter Judas from any attempt against his life?

Another is, (John 18—1) that after Judas had left the room, Jesus and his disciples left it also, (although it was a dark night, as is proved by the fact that those, who came to take him, carried lanterns and torches, (John 18—3) for the purpose of finding him,) went away, crossed a brook, and took up quarters for the night in a garden. Now can any reason be imagined why this man should leave a house, and go into a garden, in the darkness of the night, and remain there, unless it were for concealment and safety?

But there is less reason to suppose that Jesus had any other motive than that of concealment and security, in this instance, than there would be in the case of many other persons in the like circumstances; because it was a common thing for him to hide himself from his enemies: and, moreover, if he had wished, as Christians would have it, to offer up his life at this time, he would have had this special reason for remaining where Judas had left him, viz: that he might not fail of being found by those who were seeking to destroy him.

Another fact, too unequivocal and decisive to admit of argument, is, that in this crisis of his affairs, he directed his followers to provide themselves with swords, and assented to their taking with them the two, which they had. (Luke 22—36 and 38).

The fact also, that some of his disciples, when they saw that Jesus was likely to be taken, evinced so much readiness to fight, and appealed to him to know whether they should not “smite with the sword,” show that they had looked forward to such an exigency, and had made up their minds to defend themselves, if it should be practicable, and that he had no idea of just then offering himself up, or of being offered up, as a sacrifice for mankind—at least, if he could prevent it.

Another item of the same kind of testimony is, that after he had come into the garden, he directed his disciples to “watch,” (keep guard), while he went and prayed, (Mark 14—34). When he returned also, and found them asleep, he said unto Peter, “What, could ye not watch with me one hour?” (Mat. 26—40).

Still another item is, that when Jesus discovered those who had come to take him; he said to his disciples, “Rise up, let us go: Lo! he that betrayeth me is at hand.” (Mark 14—42). What is this but saying, “Let us run, we’re going to be taken?” But it was too late to escape, for Mark adds, that “immediately, while he yet spake, Judas and a great multitude, with swords and staves, came,” and, after Judas had designated the one to be seized, “laid their hands on him, and took him.”

Here is evidence enough, one would think, to satisfy any candid mind, possessed of common discernment, that Jesus, in this case, as he had so often done before, sought, in the most cowardly manner, to escape the fate that overtook him. His disciples indeed would represent him as having courted death, and perhaps, at the time when these accounts were written, the authors had brought themselves to believe, that he had actually desired to die for the benefit of mankind. But we are to judge from the facts themselves, and not from the subsequent construction put upon those facts by simple men, who, as we can easily see, may have been, “after Jesus had been glorified,” and all that, in a state of perfect delusion in relation to the meaning of the whole affair.

The manner of Jesus, while upon the cross, is in strict accordance with the supposition of his being a weak spirited victim, rather than a voluntary martyr, conscious of the importance and necessity of his dying, and refutes the pretence that he died for the purpose which Christians allege; for if such were the purpose of his dying, there was more in that purpose, to one who could appreciate it, to sustain a man through the scene, than any other martyr ever had. But this man sunk under the infliction, said that God had forsaken him, and throughout, disclosed the weakness of his character.

His conduct too after his recovery from his crucifixion, if he did recover from it, corresponds well with his conduct before it. He lurks about privately. He does not, as Peter, one of his disciples, expressly acknowledges, (Acts 10—41), “show himself to all people,” but to a few friends only—and to these he shews himself, as far as appears by the evidence, but a few times during forty days, and at those times “in the evening,” and within closed doors, (John 20—19 and 26), or in some other private and stealthy manner.

One other trait in his character deserves an allusion. We have some little evidence that the notoriety, which he acquired among the ignorant, produced upon him somewhat of the effect which it frequently does upon vulgar minds, and none others, viz: an idea that the happiness of those, who were once their equals, is not now to be considered in comparison with [16] their own pleasure or convenience, and also an inflated assumption of superiority over them. He seems to have sometimes considered himself entitled, solely by the elevation of his rank above that of his followers, to servile and degrading manifestations of reverence from them, and to have been very willing to receive this kind of incense even at the expense of the “weightier matters of the law,” if it but served to raise the estimation of his superiority in the minds of his followers. Look, for example, at the self-complacent assumption of dignity and importance, with which, when Mary had lavished the costly ointment on his head, he replied to the remonstrance against the foolish waste of what might have been made so valuable to the poor, (John 12—2 to 8.) He did not point out any good that was to come of the act, but silenced the objector by intimating that what had been done was only a proper manifestation of reverence towards so wonderful a being as himself; and added, in substance, that there were always so many poor, that it was of no importance to attend to their wants when he was present, and when his followers were blessed with an opportunity of appropriating their funds to demonstrations of devotion towards him. And yet this man was the author of a religion “peculiarly adapted to the poor.”

On another occasion (Luke 7—38,) this delightful fellow permitted even a female to “Kiss his Feet,—to wash them with her tears—and to wipe them with the hairs of her head,” and yet women are now told that the author of this elegant act of gallantry was the founder of a religion, which their self-respect and a proper regard for the dignity of their sex, imperiously require them to embrace.

But Christians have a saying that Jesus “went about doing good.” Well, supposing he did for a year or two give his attention to “doing good”—is there any thing so remarkable in the fact that it can be accounted for only by supposing him a divine being? But how was this matter? Did he really “go about, doing good?” Was he “doing good” when he consented to the foolish waste of “three hundred pence worth of ointment, which might have been sold and given to the poor?” Was he “doing good,” when he suffered Mary to “kiss his feet?” Was he “doing good,” when he sneaked up to the feast at Jerusalem in secret? Was he “doing good,” when he rode an ass’s colt to Jerusalem, to make the people believe that he had been appointed by the Almighty to be their king? Was he “doing good,” when he told his followers to arm themselves with swords? Was he “doing good,” when practising the mean evasions, the subterfuges and the secresy, which have been before referred to? “Why, no, perhaps not,” the Christian will probably answer, “but then he healed a great many sick folks, and cast out a great, great many devils.” But it is a supposable case, and perhaps it will hereafter satisfactorily appear, that he could work only such miracles as these, (where doubtless the imaginations of men did the business,) and that he wrought such more for the purpose of gaining adherents, and thus making himself king of the Jews, than of “doing good.”

But Christians will say that there is one kind of evidence, by which the divinity of Jesus is unequivocally proved, and that is furnished by his moral and religious instructions.

Now one objection to the moral and religious precepts and doctrines ascribed to Jesus—considering them as evidence of his divine nature—is, that a part of the moral ones are very silly, and a part of the religious ones are very blasphemous and absurd—as any person may see, who will take the trouble to read them with the view of seeing whether they are or not—and another objection to them is, that it is not likely that many of them were ever uttered by him.

Besides, if a man, who should set himself up in opposition to a portion of the community, in the manner Jesus did, and should attempt to lead those whom he could persuade to join him, should now and then utter a sentiment somewhat original and singular, and correct withal, it would be no more than might reasonably be expected. We generally see such things in every one, who has never had his mind moulded by intercourse with the many, and who attempts to lead the few. Such a man generally has something original and peculiar in his ideas.

One reason for believing that Jesus never uttered many of the sentiments ascribed to him, is, that a person attempting to prove himself such a Messiah as the Jews expected, and to make himself their king, would not be likely to give such instructions as are many of those ascribed to Jesus—but he would be likely to give such as could very easily be “glorified” into such as these are. For example, when he was addressing those, who followed him, on the subject of that combined temporal and religious government, which he pretended to be appointed by God to establish, he would naturally speak of his kingdom in terms, which could easily be “glorified” into “the kingdom of God,” “the kingdom of heaven,” &c. And the Evangelists, although, at the time he spoke, they understood him as referring to his kingdom among the Jews, would yet, at the time they wrote, when their ideas of the nature of his kingdom had been changed by his supposed resurrection from the dead, consider every thing, that he had previously said, as referring to a different kingdom from what they had before supposed, and would record it accordingly.

Many of his moral precepts are such too as would naturally be thrown out to his hearers by such a man as I have supposed him to be; because it would be necessary that one, who proposed to make himself such a king as the Jews expected, one who was to control both their civil and religious affairs, should give to those whom he was persuading to join him, some idea of the social regulations, and the moral and religious observances, which he intended to establish among the people.

[17]

Another reason for believing that many of the sayings, attributed to Jesus, were never uttered by him, is, that the time, when they were recorded, was so long after they are represented to have been spoken, as to forbid the belief that there is any great accuracy in them. It is preposterous, to pretend that these men should remember conversations in the manner they assume to have done.*

Still another reason is, that these narrators, at the time they wrote, had probably become more capable of being themselves the authors of whatever would seem to be above the capacity of a very simple man, (if indeed there be any such sentiments in the New Testament), than Jesus himself, for they had then had much intercourse with mankind, they had travelled extensively, and had spoken and labored much as preachers, and their talents must have been improved by such an education. And of their readiness to relate the best and the most they could either remember or imagine of the sayings of Jesus, having the semblance of similarity to any thing that he had ever uttered, it seems to me there can reasonably be little doubt in the mind of any man who reads their stories.

In order to show how little reliance is to be placed upon the pretended authorship of the sentiments ascribed to Jesus by the Evangelists, nothing more need be done than to exhibit the authority, on which his talk to the prople on the mount has come down to us. Matthew would have us believe that he has given us the matter of a discourse, which Jesus held to his followers at this time. And yet, as I shall attempt to satisfy the reader, Matthew not only was not present when the speech was made, but was not even a disciple of Jesus at the time.

The seventh chapter of Matthew closes the speech; the eighth gives accounts of miracles, &c., the first verse of the ninth then says, that “he catered into a ship, and passed over, and came into his own city,” (Nazareth.) It would appear from the remark here quoted, and from the last fourteen verses of the fourth chapter, that this harangue was made in Galilee, on the other side, from Nazareth, of the sea of Galilee. By the ninth verse of the ninth chapter, it appears that Matthew was found in Nazareth, and called to be a disciple, after Jesus had returned from Galilee. It is probable, from the fact that Matthew was found in Nazareth, that he lived there, and of course, at a distance from the place where the speech was made. This fact, and the fact that he was not called to be a disciple until after the speech was made, render it improbable that he was present at the delivery of the speech, or that he knew any thing about it until it was over. And yet, some ten, twenty or thirty years afterward, he pretends to give us the substance of a discourse, containing remarks upon a great variety of subjects, having no connection with each other.

Even if he had heard them uttered, it is preposterous to suppose that he could have remembered so great a variety of disconnected remarks. But when we consider that he probably did not hear them, all confidence in the correctness of his report vanishes. So that, whether we consider this production either as heard, or only as heard of, by Matthew, it comes to us in the shape of a thing mainly fabricated or “glorified,” years afterwards.

But there is another and stronger objection to the instructions, which are attributed to Jesus, than has yet been mentioned. This objection is, that the whole system of morals and religion is based upon the selfish principle. The system throughout, is one of rewards and punishments—the most debasing, to men’s motives, of all imaginable systems. In it, right and wrong are not recognized as fundamental principles of action, but are made referrible to ulterior considerations of personal pleasure and pain. Jesus never instructed men to do what was right, because it was right; yet this is the true reason why they should do it. Nor did be instruct them to avoid what was wrong, for the reason that it was wrong: yet that should be the fundamental and principal reason in every man’s mind, because it is the moral reason. But the Bible, by the uniformity, with which it makes the selfish inducement, the promise of reward, or the threat of punishment, follow the moral precept, impliedly admits that the principal reason why we should do right, is, that we shall be rewarded for it, and the principal reason why we should not do wrong, is, that we should be punished for it. How much real honesty of principle, or how much of purely virtuous sentiment, can be infused into men’s minds by means of such mercenary inducements, I leave to others to determine.

Men’s moral principles are weak enough without their being made subordinate to selfishness; and their selfishness is quite active enough, without any such effort as Christianity makes to constitute it the mainspring of all their conduct. There are natural sentiments of justice, rectitude and virtue, in men’s minds, which, when directly appealed to as motives to action, are generally found capable of being cultivated and strengthened, and of controlling the conduct of any of mankind. There are few, (if indeed there are any,) men, who cannot be persuaded to do what is right, by having it urged upon them that it is right; and there are but few men, who cannot, in any particular case whatever, be dissuaded from a wrong action, by having it urged upon them that it is wrong. Yet a great portion of the same men, who are thus easily persuaded to do what is right, by the argument that it is right, and dissuaded from doing what is wrong, by the argument that it is wrong, would consider it, and justly too, a despicable and degrading descent, to yield to, or act under, the influence of such hopes of reward, and such fears [18] of punishment, as the Bible and its advocates attempt to awaken. And the very men, whose trade and incessant effort it is to bring others under the control of these base and mercenary and false motives of action, would consider it an imputation upon their virtue and their characters, to insinuate that they themselves are governed by such means; and would take it in high dudgeon to have it intimated that their natural sense of right was scanty, or that it would in general be insufficient to control their conduct. But they have great fears for the virtue of their fellow men—it is entirely unsafe to trust mankind in general with no motives but such as truth would furnish—their fellow men are generally either such simpletons that they must be wheedled by prospects a thousand times too extravagant to be probable, by promises of “sweet things” hereafter, or they are such perfect monsters that they must be set upon and overawed by menace, or enslaved by fear; they are utterly incapable of appreciating any consideration of right or reason; and hence the absolute necessity of Christianity.

CHAPTER III.: The Alleged Miracles of Jesus.

If it has now been reasonably shown, that up to the time when he began to work miracles, Jesus had exhibited no other than a human nature; and if neither the probable object of his public career, his personal character, nor his religious and moral instructions, give any evidence of his divinity, we are to inquire as to the reality of his alleged miracles, not only without any previous assumption or bias in their favor, but with the same suspicion and incredulity that we should feel towards the pretended miracles of any other person, and with a determination to scrutinize them as closely as we would any others, and to detect their falsehood, if any falsehood can possibly be detected in them.

It has been argued that no amount of human testimony can be rational evidence of the reality of an alleged miracle; because such testimony must always be liable to this objection, viz: that experience has proved that it is more probable that any number of men would lie, or would be deluded, imposed upon, or mistaken, than that a miracle would be performed. And this objection seems to be a good one, because we do know that persons have, in cases almost innumerable, been imposed upon by pretended miracles, but we do not know that a real miracle has ever been wrought by the agency of man, or that any miraculous occurrence has ever taken place since the order of nature was established. It probably might also be maintained, that a man’s own senses could not be reasonable evidence of a miracle; because men’s senses have, in thousands of instances, deceived them in regard to pretended miracles; but we know certainly of no instance where they ever proved the reality of a miracle.

Nevertheless, the following attempted explanation of the alleged miracles of Jesus will not insist upon these arguments, but will proceed upon the supposition that human testimony can be sufficient evidence of the reality of a miracle—assuming, however, the soundness of this principle, viz: that we are not to believe a miracle on human testimony, so long as we can [Editor: illegible word] discover an inconclusiveness in that testimony, or can detect a possibility of mistake or falsity in the witnesses. The correctness of this principle I suppose Christians themselves will [Editor: illegible word] the face to dispute.

One other principle also they must admit, viz: that the object, for which the alleged miracles of Jesus are [Editor: illegible word] to have been wrought, can weigh nothing in favor of their reality; because, if we say that [Editor: illegible word] caused them to be wrought for the purpose of proving a Revelation, we thereby assume that a Revelation exists—which is the very thing in dispute, and which is to be proved by the miracles, if proved at all, and therefore is not proved at all until the miracles are established. If we attempt to prove the Revelation by the miracles, and also the miracles by the Revelation, we reason in a circle. The alleged miracles of Jesus therefore must stand exclusively upon the historical evidence, which tends to sustain them, without any regard being had to the purpose for which they were wrought, if they really were wrought. And they must be supported by evidence as strong as would be necessary to prove the reality of miracles, for the working of which no reason at all could be assigned.*

But to proceed with the evidence. It is worthy of especial remark, and should be constantly borne in mind, that at the time of Jesus, a miracle was considered, among the Jews, a very common occurrence. Jesus acknowledges that others could perform some of the same kind of miracles, which he himself did, viz: casting out devils. “If I by Beelzebub cast out devils, by [19] whom do your children cast them out? Therefore they shall be your judges. But if I cast out devils by the spirit of God, then the kingdom of God is come unto you, (Mat. 12—27 & 28. Luke 11—19 & 20.) Jesus here impliedly admits, as I understand him, that others performed deeds similar to some of those, which, by himself possibly, and by his disciples unquestionably, were believed to be miracles, and which he professed to perform for the purpose of proving his Messiahship. He however would make a distinction between his supposed miracles, and those of others, by pretending that his were done by the help of the spirit of God, and that those of others were wrought by the help of a different power. But the Pharisees had just been charging him with working by the power of Beelzebub, and how is an impartial person to judge who works by Beelzebub, (supposing there were a Beelzebub,) and who by the power of the Almighty, when both persons perform the same miracles, and each charges the other with working by Beelzebub? or how is an impartial person to know which are real miracles, and which are false, when both are apparently alike? What reason then is there for supposing that the works of Jesus were any better miracles than the works of others?

Jesus also admits (Mark 9—38, 39 and 40) that the man, whom his disciples told him they had found casting out devils on his own account, was performing real miracles. True, this man used the name of Jesus; but he did so without authority—so that the miracles must be considered as much his own, as if he had used his own name, or no name at all.

Now, if, as Jesus himself acknowledges, the miracles of others were real ones, the inference is inevitable from these facts, that the power to cast out devils was no evidence that a man was commissioned by God. But, if these performances were not real miracles, Jesus, like the rest of his countrymen, was so ignorant as not to know it, because he expressly acknowledges that they were real.

Again Jesus says (Mat. 24—24) that false Christs “shall show great signs and wonders, insomuch, that if it were possible, they should deceive the very elect.” Now this is equivalent to acknowledging that false Christs could perform works so wonderful that it would be exceedingly difficult to distinguish them from such as he himself wrought. Indeed it is equivalent to acknowledging that an impartial observer would be as likely to believe those to be real, as to believe his to be so. But he evidently believed that there was some supernatural cause why the “elect” would not be deceived by them, for he says, “if it were possible” they would be. And he found it necessary, by declaring such works to be the works of false Christs, and by cautioning his disciples in the strongest manner against them, to prevent them from regarding, or giving any credit to, those works, which, to unbiassed minds, would appear equally miraculous with his own, and would furnish equally strong evidence as his, that each of the authors of them was the real Messiah instead of himself.

If the works of Jesus were so much more wonderful than man could perform as to deserve to be called miracles, was it not nonsense to caution his disciples so strongly against being deluded by the works of others?*

What the works of these pretended Messiahs (of whom it is admitted by Christians that there were about seventy, who lived about the time of Jesus), were, I know not—but it is related, on such authority as Christians admit to be true, that some of them got large sects after them. The Rev. John Newton, in his Dissertations on the Prophecies, (Chap. 19) says that one of them obtained thirty thousand followers. This number is probably many times larger than that of those, who believed in Jesus, during his life time. The largest estimate, which I have found of his followers at any one time, is, “about five thousand men, besides women and children,” (Mat. 14—21), and this estimate is undoubtedly a great exaggeration. Besides, it would appear that of those, who sometimes followed him about in the early part of his career, nearly all soon abandoned him. If then, those, whom Jesus calls false Christs, were so much more successful than himself in gaining adherents, it is in the highest degree probable that their works gave evidence, to those who saw them, of greater miraculous power than his did. So that if we believe there ever was such a being as a real Messiah, we ought, judging from the testimony of the eyewitnesses, (whose testimony alone is good for any thing), on every principle of reason, as far as the evidence of miracles is concerned, to believe that Jesus was not the actual one—but that the one, who obtained, during his life time, the greatest number of followers, was the true one; because these followers, were the eyewitnesses whose [20] testimony constitutes the evidence in either case, and by following a man they expressed their belief in the reality of his pretended miracles. Of course the witnesses must have been more numerous, who could testify to the reality of the miracles of others, than of those of Jesus; and we ought certainly to believe the testimony of a large number rather than the testimony of a few.

The number of those, who were not eyewitnesses, but who might believe on a particular one of these pretended Messiahs after his death, and simply upon the testimony of others, is no evidence at all that one was the real one; because there might be many circumstances, which had nothing to do with the reality of the miracles, that would nevertheless make the pretended miracles of one believed after his death, when those of another would be forgotten. For example, if the followers of one should spread the accounts of his doings, after his death, such an one would continue to be believed after his death, when another, whose disciples should neglect this step, would naturally be forgotten, although his works might be even many times the more wonderful of the two. This was the case with Jesus. He had few followers, in his life time, compared with those of others; but some of his followers circulated the story of his doings, after his death, and by that means his memory was preserved.

It appears to me that even what little has now been said, would be sufficient to satisfy men that Jesus never performed any real miracles, if they would but judge of the probabilities on this subject, as they do on any other subjects of history. But it is not with the Bible as it is with other books, in respect of being believed. There are few men, and probably no women, who believe it because it is probable, (for they do not know, nor dare they inquire, whether or not it be probable), or for any other reason that has any thing like evidence or argument in it. They believe it, almost universally, for one, or the other, or both, of these very potent reasons, viz: either simply because it is the Bible, or because they expect they should be damned if they were to disbelieve it, however improbable it may be—thus virtually charging their Maker with being wicked enough to torture men through eternity, for not having believed, in this world, what was improbable. That “he that believeth not shall be damned,” appears to be the strongest of all arguments, in the minds of the many, in support of the Bible. It is thus that Christianity, by seizing upon men’s fears, and thus making dupes and slaves of their understandings, has preserved its credit in their minds, and its power over their reason, has brought down with it, to this day, some of that credality for the marvellous, in which it was first established, and has thus prevented men from inquiring, in a rational manner, as otherwise the enlightened portion of the world probably would have done, as to what was probable, and what improbable, in relation to the designs and government of God.

Since then a further examination of the subject of miracles is necessary, I will go into an examination of the separate evidence of each and every miracle, that Jesus is said to have performed, and of which there is any particular account in either of the four narratives of his acts and preaching. The number of these is thirty-three, and no more. Some of these are mentioned by one of the narrators, some by two, some by three, and a single one of them by the four. There are many other general and indefinite accounts of his miracles, such as that, in particular places, he “cured all manner of discases,” or that “he healed all, who were vexed with unclean spirits,” or “those who were tormented with plagues,” &c. But since many of these thirty-three were recorded by Matthew thirty years afterwards*—and as many of the same were recorded many years afterward by Mark, who was a follower of Peter, and probably knew nothing of Jesus personally,† and by Luke also, who was a citizen of Antioch, converted by Paul, and who of course never had any personal knowledge of Jesus,‡ there can be no doubt that these were considered the most remarkable that he was ever supposed to perform; otherwise they would not have been remembered and circulated so as to be the most remarkable ones that should come to the knowledge of each of these three different persons.

Many of these supposed miracles will be attempted to be accounted for, by showing them to have been the work of the imagination. Such ones will be examined first, and the others afterward.

The influence of the imagination upon sick persons is known to be very great, and in many cases of modern date, it has been observed and recorded by physicians to have been surprising. There are perhaps few adults, who have ever attended a sick person, that have not observed the sensible and sudden effect of a newly excited hope upon him. All know the importance of sustaining the hopes of a sick man. The reason of this, is, that his nervous system is then, vastly more than in health, susceptible to the influence of particular states of the mind. It is one of the most common observations, in relation to a person dangerously ill, that “if his courage be maintained, and he think he shall recover, he will recover, but if he think he shall die, he certainly will die.” The frequent expression of such opinions shows that we are all aware of the influence of the imagination upon the sick, although the philosophy of its operation is perhaps not known to all who know the fact.

There is perhaps no man, even at the present day, who, when sick, although he perfectly well understood every thing about the power of the imagination, is not nevertheless in a very [21] great degree under its influence. Physicians understand this principle in physiology, and many of them avail themselves of it, by holding out encouragement whenever they can do it without running too great a risk of occasioning an injurious effect by a disappointment of the expectations thus raised. It requires very little of the excitement of hope to string the nerves of a sick man, because they are exceedingly susceptible. Thus many physicians will often give to a sick man medicines, which are simple and powerless of themselves, merely for the sake of the beneficial influence, to be derived from his imagining that he has taken something which is benefitting him.

We all know, too, how little excitement of the feelings, upon a man, who is sick, and apparently destitute of all strength, will occasion insanity, and cause him to exhibit wonderful power. Now he really has no more strength in his muscles, during his insanity, than he had before; but his nervous system has been excited by the operations of his mind, and his latent strength thus called out. It is by the operation of the same principle, that other excitements of the feelings, as a newly imspired expectation of recovery for example, often calls out the latent strength of a sick man to a considerable degree, without making him insane, unless a man may be always properly called insane in just so far as his imagination deceives him.

Further evidence of the power of the imagination to operate upon the sick, and to cure discases, is furnished by the following extracts, taken from Rees’s Cyclopædia—article, Imagination.

“In the year 1798, an American, of the name of Perkins, introduced into this country (England) a method of curing diseases, for which he obtained the royal letters patent, by means of two small pieces of metal denominated Tractors. These were applied externally near the part diseased, and moved about, gently touching the surface only; and thus multitudes of painful disorders were removed, some most speedily, and some after repeated applications of the metallic points. Pamphlets were published, announcing the wonderful cures accomplished by this simple remedy; and periodical journals and newspapers teemed with evidence of the curative powers of the tractors; insomuch that in a few months they were the subject of general conversation, and scarcely less general use. The religious sect of the Quakers, whose benevolence has been sometimes displayed at the expense of their sagacity, became the avowed and active friends of the tractors; and a public establishment, called the “Perkinean Institution,” was formed under their auspices, for the purpose of curing the diseases of the poor, without the expense of drugs or medical advice. The transactions of this institution were published in pamphlets, in support of the extraordinary efficacy of these new instruments. In somewhat less than six years Perkins left the country, in possession, as we have been informed on good authority, of upwards of ten thousand pounds, the contributions of British credulity; and now (1811) the tractors are almost forgotten.

“We by no means intend to impeach the veracity, of those, who attested the many extraordinary cures performed by the application of the tractors; on the contrary, we have no doubt that many of them were actually accomplished, at least temporarily: after what we have already stated, when treating of animal magnetism (such as the sudden cure of the artist’s head-ache, on the bridge, by M. Sigault’s gestures), and what we shall proceed to state respecting the effects of counterfeit tractors, it were impossible not to admit the truth and correctness of the majority of the accounts of the efficacy of Perkinism. We must observe, however, that the efficacy was founded on the delusion; and had not the scientific world been at that time in a state of comparative ignorance respecting the principle of which Galvani had recently obtained a glance; had they been in total ignorance of that principle, or possessed of more than that “little knowledge” of it, which “is a dangerous thing,” such an imposture would scarcely have gained ground for a day, among those who were acquainted with the proceedings of the French Commissioners in the affair of Mesmer.* But Perkins associated the idea of the Galvanic principle, or animal electricity, with the operation of his tractors, by constructing them of two different metals, which the Italian philosopher had shown to be necessary to excite the operation of the agent, which he had discovered: and the obscurity, which hung over this subject, left a new field for hypothesis, and the anomalous character of the facts contributed to induce even philosophers to listen to the relation.

“But Dr. Haygarth, to whom his profession and his country are deeply indebted for more important services, suspected the true source of the phenomena produced by the tractors, from the first promulgation of the subject. Recollecting the development of the animal magnetism, he suggested to Dr. Falconer, about the end of the year 1798, when the tractors had already obtained a high reputation at Bath, even among persons of rank and understanding, that the nature of the operation of the tractors might be correctly ascertained by a pair of false tractors, resembling the real ones: and it was resolved to put the matter to the test of experiment in the general hospital of that city. They therefore contrived two wooden tractors, of nearly the same shape as the metallic, and painted to resemble them in color. Five cases were chosen of chronic rheumatism, in the ancle, knee, wrist and hip: one of the patients had also gouty pains. All the affected joints, except the last, were swelled, and all of them had been ill for several mouths.

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“On the 7th, of January, 1799, the wooden tractors were employed. All the five patients, except one, assured us that their pain was relieved; and three much benefitted by the first application of this remedy. One felt his knee warmer, and he could walk much better, as he showed us with great satisfaction. One was easier for nine hours, and till he went to bed, when the pain returned. One had a tingling sensation for two hours. The wooden tractors were drawn over the skin so as to touch it in the slightest manner. Such is the wonderful force of the imagination.

“Next day, January 8th, the true metallic tractors of Perkins were employed exactly in like manner, and with similar effects. All the patients were in some measure, but not more relieved by the second application, except one, who received no benefit from the former operation, and who was not a proper subject for the experiment, having no existing pain, but only stiffness in her ancle. They felt, (as they fancied) warmth, but in no greater dedegrce than on the former day.” Of the imagination as a cause, and as a cure of the disorders of the body, exemplified by fictitious tractors and epidemical convulsions. By John Haygarth, M. D. F. R. S. &c. Bath, 1800.

“Such were the experiments attempted with the view of ascertaining the nature of Perkinism. But Dr. Haygarth’s pamphlet contained an account of still more decisive trials made in the Bristol infirmary, by Mr. Smith, one of the surgeons to that establishment. This gentleman first operated with two leaden tractors, on Tuesday, April 19th, on a patient, who had been some time in the Infirmary, “with a rheumatic affection of the shoulder, which rendered his arm perfectly useless.” In the course of six minutes no other effect followed the application of these pieces of lead than a warmth upon the skin: nevertheless the patient informed Mr. Smith, on the following day, that “he had received so much benefit, that it had enabled him to lift his hand from his knee, which he had in vain several times attempted on the Monday evening, as the whole ward witnessed.” But although it was thus proved that the patent tractors possessed no specific powers independent of simple metals, he thought it advisable to lay aside metallic points, lest the proofs might be deemed less complete. Two pieces of wood, properly shaped and painted, were next made use of; and in order to add solemnity to the farce, Mr. Barton held in his hand a stop watch, whilst Mr. Lax minuted the effects produced. In four minutes the man raised his hand several inches, and he had lost also the pain in his shoulder, usually experienced when attempting to lift any thing. He continued to undergo the operation daily, and with progressive good effect, for on the 25th, he could touch the mantle-piece.

“On the 27th,” Mr. Smith continues, “in the presence of Dr. Lovell and Mr. J. P. Noble, two common iron nails, disguised with sealing wax, were substituted for the pieces of mahogany before used. In three minutes the same patient “felt something moving from his arm to his hand, and soon after he touched the Board of Rules, which hung a foot above the fire place. This patient at length so far recovered, that he could carry coals, &c. and use his arm sufficiently to assist the nurse: yet previous to the use of the spurious tractors, “he could no more lift his hand from his knee than if a hundred weight were upon it, or a nail driven through it,” as he declared in the presence of several gentlemen. The fame of this case brought applications in abundance, indeed it must be confessed, that it was more than sufficient to act upon weak minds, and induce a belief that these pieces of wood and iron were endowed with peculiar virtues.” See Dr. Haygarth’s Pamphlet, p. 8.

“Many other equally striking instances of the curative operation of the imagination, when excited by the sham tractors, might be quoted from the pamphlet in question. * * * * *

“After having perused this abundant evidence of the powers of the imagination, not only in producing various affections of the body, but in removing others which exist, we can have no difficulty in crediting many relations of cures performed by persons supposed to be gifted with extraordinary powers, or employing other pretended agents, all of which may be refer red to the same common principle. One of the most singular instances of this kind, both from the number of cures performed, and the rank, learning and character of the persons, who attested them, is to be found in the person of Valentine Greatraks, who flourished in the latter part of the 17th century.

“The proceedings of this pious and apparently sincere man are very interesting, as affording a history of the power of imagination and confidence over certain disorders of the body. He was the son of an Irish gentleman of good education and property, who died in his childhood. Disgusted with the religious and political contentions of his country in the time of Cromwell, he retired from the world, apparently in a state of melancholy derangement and bad health, which had nearly terminated fatally. On recovering, he became one of the puritans of the day, and after having acted sometime as a magistrate, he had “an impulse of strange persuasion” in his mind, which continued to present itself, whether he was in public or in private, sleeping or waking, “that God had given him the blessing of curing the king’s evil.” Accordingly he commenced the practice of touching for this disease about the year 1662, which he continued for three years; at this time the ague became very epidemical, and the same impulse within him suggested “that there was bestowed upon him the gift of curing the ague,” which he also practised with success, by laying his hands on the patients. At length he found his power extended to epilepsy and paralytic disorders, &c.; but he candidly acknowledges that many were not cured by his touch [23] Nevertheless the unbounded confidence in his powers, and consequently the facility with which the imaginations of the ignorant would be acted upon, must be manifest from the following statement, which he sent to Mr Boyle. “Great multitudes from divers places resorted to me, so that I could have no time to follow my own occasions, nor enjoy the company of my family and friends; whereupon I set three days in the week apart (from six in the morning till six at night,) to lay my hands on all that came, and so continued for some months at home. But the multitudes which came daily were so great, that the neighboring towns were not able to accommodate them; whereon, for the good of others, I left my home, and went to Youghall, where great multitudes resorted to me, not only of the inhabitants, but also out of England; so that the magistrates of the town told me, that they were afraid that some of the sick people that came out of England might bring the infection into the place: whereon I retired again to my house at Affane, where (as at Youghall,) I observed three days, by laying my hands on all that came, whatsoever the diseases were (and many were cured, and many were not;) so that my stable, barn and malt house were filled with sick people of all diseases almost, &c.”

“We shall not extend this article by quoting the histories of cases certified by several physicians, as well as by divines and philosophers; among whom were the names of Robert Boyle, Dr Cudworth, Dr. Whichcot, &c. We may remark, that some of the cases of headache and rheumatism resemble most accurately those which were cured by the spurious tractors abovementioned; and that the hand of Greatraks can only be conceived to have operated in the same way. The influence of the imagination was likewise obvious in several convulsive affections, in the same manner as in the woman at Passy, who fell into the crisis before the magnetism was applied. Greatraks mentions several poor people that went from England to him, “and amongst the rest, two that had the falling sickness, who no sooner saw me, than they fell into their fits immediately;” and he restored them, he affirms, by putting his hands upon them. Nay, he tells us, that even the touch of his glove had driven many kinds of pains away, and removed strange fits in women; and that the stroking of his hand or his glove had, in his opinion, and that of other persons present, driven several devils, or evil spirits, out of a woman, one after the other, “every one having been like to choke her (when it came up to her throat,) before it went forth.” Now this whole description contains a pretty accurate picture of an ordinary hysterical fit, with its attendant globus, terminating with the discharge of flatus.

“About the same period, a Capauchin friar, whose name was Francisco Bagnon, was famous in Italy for the same gift of healing, by the touch of the hands only; and was attended wherever he went by great multitudes of sick people, upon whom he operated numerous and surprising cures, which were deemed true miracles. So general was the belief in his curative powers, that even a prince of Parma, who had labored under a febrile disease for the space of six months, was induced to apply to him, and was immediately cured by his voice only. The prince himself, and many others that were present, afterwards bore public testimony to the fact.” * * * * * * * *

“But it is unnecessary to enumerate the individuals, the De Mainaducs, the Prescotts, &c. who have at various times been distinguished by the possession of various occult methods of healing the sick. The practice has occasionally prevailed in almost all ages; and we have seen, in the details of experiments above related, that the faculty of the imagination, in certain habits and conditions of the body, and especially in the irritable female constitution, is actually capable of producing all those effects on the corporeal frame, which have been deemed the result of occult agency and extraordinary powers.”

“Admitting this, then, as an established principle of the human constitution, and making due allowances for the exaggerations and misrepresentations of ignorance and superstition, we are enabled to give a rational explanation of many historical relations, which have been considered as altogether fabulous, or as direct violations of truth. We are well aware of the facility with which the imagination is excited in an uninformed person, and more particularly in an age of profound ignorance, which is, for that reason, commonly an age of superstition. We know, too, that in the middle ages, when every form of science was almost unknown, and the laws of nature had not been investigated, the smallest discovery in natural philosophy, chemistry, or astronomy, was deemed the result of supernatural communication with the world of spirits; and the discoverer or possessor of the knowledge was looked upon as a being gifted with supernatural powers. In such a state of the human mind, when natural philosophy, meagre as it was, was disguised with the name, and clothed with all the supposed agencies of magic; and when every person, with a little more knowledge than his neighbors, was master of so many magnets, so many tractors, by which he could rule the imaginations of the multitude; it cannot be the subject of our wonder, that the magician’s rod (or the philosopher’s cane) should produce such mighty operations, or that a scrap of his writing should be a remedy for many maladies. These only executed what was afterwards performed by M. Deslon’s extended fingers, and Valentine Greatrak’s glove! The effects, then, of the incantations, amulets, and all the arts of magic, witchcraft and astrology, by which the more artful pretenders to superior knowledge imposed upon the people, may be allowed to have actually occurred, and to have been the resul of [24] natural causes; and they are plainly referrible to one common source, with those of animal magnetism, Perkinism, and various other modifications of the imagination in fetters.

“It is scarcely necessary to add, that during the same periods of ignorance and superstition, those extremely pious and comparatively learned persons, who have been enrolled in the catalogue of saints, must necessarily have obtained the most complete veneration and confidence from the multitude; and hence, after their death, every relic of their bodies or clothing, the shrines in which they were entombed, fragments of the instruments of their execution (in cases of martyrdom,) and every other object that could excite, by association, those reverential feelings, usually called up by a contemplation of their characters, would become so many agents upon the imaginations, by which all the extraordinary changes in the animal economy above described, might be effectually produced. Thus we cannot doubt that there is much foundation for the histories of recovery from various diseases, occasioned by removing the sick to the tombs of celebrated worthies, or placing them before the statues and images of these persons, or by touching them with nails taken from the coffins, or rings from the fingers, or the bones of the fingers themselves of these saints, or by the influence of an infinity of relies of this sort, which cannot be supposed to possess less power over a superstitious mind, than the painted tractors of a surgeon, or the glove of an enthusiast.”

In the New Edinburgh Encyclopædia, (Am. Ed.) in the article on Animal Magnetism, we find the following, among other testimony to the power of the imagination in curing diseases.

The pamphlet of Dr. Haygarth, on the metallic tractors, “amply confirms the general principle, that the power of the imagination in the cure of diseases is almost without limits; so that, except a complete and sudden alteration of physical structure, or the restoration of lost parts, there is scarcely any change so considerable, which may not be effected through its intervention. It not only possesses an indefinite power over what are styled nervous diseases, where the primary affection consists, as far as we can judge, in some change in the action of the brain and its appendages; but even diseases of the sanguiferous system, and of the different organic functions, appear to be by no means exempted from its influence.”

* * * * * *

“In proof of his hypothesis, and of the power of magnetism over the human body, Mesmer” (the pretended discoverer of animal magnetism,) “and his adherents confidently appealed to their success in the cure of diseases; and so great did this appear, and so unquestionable was the evidence, on which it seemed to be founded, that, for some time, scarcely any opposition was made to it, and it was regarded as the most unreasonable scepticism to doubt of its reality.”

And yet after this method of curing diseases had had this astonishing success, and had obtained this astonishing reputation, it was completely ascertained, by experiments made upon persons blindfolded, and upon those who doubted the system, (whose imaginations of course would not be so easily affected), that the previous cures had all been but the work of the imagination. These experiments were conducted by nine Commissioners, men of learning and science, appointed by the French King in 1784 to investigate the matter. Of this board of Commissioners, Dr Franklin, then American Minister at Paris, was one.

Many other cases, of wonderful cures wrought by the imagination, are cited in the article in Rees’ Cyclopædia, from which a part of the foregoing extracts are taken. But enough have been quoted to establish, beyond cavil, I trust, that the imagination is capable of exerting a sudden and very exciting power over the nervous system, and of thus producing, what, by the ignorant and superstitious, would be considered miraculous effects in the restoration of the sick.

Now there probably have seldom, if ever, been causes in existence calculated to operate so strongly upon the imagination of a sick man, without making him actually insane, as were those which must have operated upon such as, for the time, thought themselves cured by Jesus; and perhaps the world never furnished a people more easily to be operated upon by the method and pretensions of Jesus, than were those among whom he preached. They were simple and superstitious to a degree hardly to be conceived of by us, as is proved by the fact of their running all agog after so many of those pretended miracle-workers, that infested Judea at that time.

The nation of the Jews at large, believed themselves the peculiar favorites of God; they believed that God often sent messengers to them, and in order to prove such to be his messengers, gave them miraculous powers. About the time of Jesus they expected a remarkable one to be called the Messiah. They supposed he would possess these powers in an unusual degree. Those, who followed Jesus, and supposed themselves benefitted by him, believed him to be this Messiah. It was evidently necessary, in order to be benefitted by his power, that they should believe, in advance, that he possessed it, as appears from Matthew 18—58, “and he did not many mighty works there because of their unbelief.” At another time, (Mat. 9—28 and 29,) when two blind men wished to be cured, he asked them, “Believe ye that I am able to do this? They said “yea, Lord.” Then says he, “according to your faith, be it unto you.” The same inference is fairly deducible from numerous other passages and circumstances.

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Keeping these facts in our minds, let us look at the cure of the palsy, as described by Matthew, (9—2 to 8,) Mark (2—1 to 12,) and Luke (5—17 to 26)—by Luke the most minutely.

Imagine Jesus surrounded by a multitude, who came to him from every quarter, who believed him to be the Messiah, and to have miraculous power; imagine him to have been going from place to place, preaching as if by the authority of God—the report going before him that he cured all manner of diseases wherever he went; imagine so great a crowd about him that the man sick of the palsy could not be carried in at the door of the house, and that it was necessary to uncover the roof to let him down where Jesus was; imagine this palsied man having full faith, from the moment he heard of Jesus, in his ability to cure him; imagine him carried on a bed by four, to the place where Jesus was, full of the highest expectations; imagine him waiting, and witnessing the crowd around full of the same extravagant expretations with himself, witnessing also the preparations being made to let him down through the roof of the house, to bring him into the presence of the wonderful being who was to restore him at a word—(during such a scene, if he had a spark of nervous vitality in him, it must have been set most powerfully at work;) imagine him at length, laid in the presence of this messenger from God, this Messiah; imagine Jesus pardoning his sins with the assumed authority of God; imagine him telling the bystanders, in the hearing of the sick man, that he could cause him to rise up and walk as easily as forgive his sins; (certainly, at this time, the man’s nervous system must have been wrought to an extraordinary degree of excitenment, if he had life in him)—then hear Jesus pronounce, in his oracular and confident manner, “That ye may know that the Son of Man hath power on earth to forgive sins, I say unto thee, arise; and take up thy couch, and go thy way into thy house;” and is there any thing strange in the fact that he should receive strength, should rise up and walk? or that he should take with him his bed (such a sack of straw as it probably was, judging from the circumstance of its being let down through the roof of the house)? To my mind there is nothing in all this, which cannot be accounted for on the well known principles of physiology, even supposing the restoration to have been a permanent one. Here are plain and obvious causes, sufficient to produce the effect, without any supernatural agency whatever.*

If these views are correct, here was no miracle at all, even supposing the man really to have had the palsy. But suppose (a thing to my mind exceedingly probable) that this man only imagined himself to have the palsy—or that he had some slight infirmity, which he, knowing nothing of diseases, as the ignorant and simple people of that age and nation probably did, brought himself to believe to be the palsy;—and what sort of a miracle do we have here to prove that Jesus possessed supernatural powers? I say it is probable that the disense was not a real palsy, because ignorant, superstitious and timid men, such as were those among whom Jesus preached, generally magnify a slight infirmity into a grievous disease, particularly if there is any person going about the country pretending to cure diseases in a wonderful manner. Persons, who live within the circuit of such a man’s travels, generally have diseases more malignant, and more in number, than the rest of the human family.

Besides, Luke, after relating the fact of Jesus’s being where he was, of there being a great assemblage, &c., says, that a man was brought, who “was taken with a palsy.” This language naturally conveys the idea that the man was taken just at that time, and if so, there are a thousand chances against one that these simple men, who would make something marvellous out of every circumstance that could, by the aid of an enormous gullibility, he made so; who probably knew no more about diseases than they did about astronomy, and who would be imposed on by any numbness of a limb, or cramp of a muscle, were mistaken about the character of the attack, rather than that it should be the real palsy; because that is an illness, that very rarely occurs. The patient himself too, would be as likely to be mistaken as the bystanders, and if he thought he had the palsy, (and if such a suggestion had been made, he would be very likely to think so,) and that Jesus would take the trouble to display his miraculous power upon him, he would most surely keep up the appearance of a palsied man as well as he could.

Further, if the bare conversation, of those around, about Jesus performing strange cures, should make a simple man imagine he had some disease which needed curing, when he had no real illness or difficulty at all, it would be no very remarkable instance of the power of the imagination.

Reader, decide upon this testimony before you go farther. Is there, or is there not, here, unequivocal evidence that a genuine miracle was performed? Decide upon this case separately, and independently of all others. Each alleged miracle must stand solely upon its own evidence; for even if Jesus performed any real miracles, there is no doubt the country would be full of stories about miracles which were not real, and therefore we are not to believe there was a real miracle in any particular case, if there be a discoverable inconclusiveness in the evidence relating exclusively to that case. I will answer for the reader, that there is not room for even a decent pretence that here was a miracle.

[26]

The second supposed miracle of Jesus, that will be examined, is related by Matthew, (8—14 and 15,) Mark (1—30 and 31,) and Luke (4—33 and 39.) It is the cure of Peter’s wife’s mother. The stories here leave quite too wide a latitude for doubt as to the reality and severity of the disease; for these simple beings probably did not know a fever from any other trivial complaint. Luke indeed says it was “a great fever.” But Luke was not there, and possibly before the story reached his ears, several years afterwards, the truth might have been a little exaggerated. This too is precisely such language as one would use, who wished to make it appear that a miracle was actually wrought, when the supposed miracle was of such a sort, that, unless there were some qualifying word, as “great,” in this instance, inserted, those, who should read the account, would see at once that there was doubtless no miracle at all.

But, independently of the word “great,” Luke’s whole account goes to show that this fever was all imaginary, and brought on (as diseases sometimes are now) by the vicinity of a physician, who was thought able to cure any thing. He says that Jesus “entered into Simon’s house,” and immediately he adds, “that Simon’s wife’s mother was taken with a great fever.” It would appear from this account that she was taken after Jesus had entered the house. If she were thus suddenly taken and thus suddenly cured, both the sickness and the cure were undoubtedly the work of the imagination.

But supposing the affair not to have been quite so farcical as it probably was, and supposing that when Jesus entered the house, she thought herself somewhat ill, and lay on the bed, and that when he “stood over her and rebuked the fever,” pretending to have miraculous power, she felt able to rise and do what she is said to have done, still here is no evidence fit to be thought of to prove a miracle. From the greatness of the number of sick, whom Jesus is said to have cured, it is evident that the diseases were either trivial or entirely imaginary; and this was undoubtedly a case of the common kind, and one that could have been cured as well by the sight of Paul’s handkerchief, or by the shadow of Peter, as those that were thus cured. (Acts 19—12—and 5—15 and 16.)

The third case to be examined is that of the woman, who had “an issue of blood,” (menorrhagia undoubtedly.) It is related by Matthew (9—20 to 22,) Mark (5—25 to 34,) and Luke (8—43 to 48.) This case affords an excellent illustration of the manner in which miracles were wrought upon the sick. This woman not only believed that Jesus had miraculous power to cure diseases, but she even believed that a miracle would be wrought upon her simply by her touching his garment, without his knowledge, and, of course, without his power being exerted. And so the event proved, if Mark and Luke are to be believed. It was the simple touching of his garment, as they say, that healed her. Mark says that “straightway” after touching, “she felt in her body that she was made whole of that plague,” and also, that after Jesus had made the sagacious discovery that “virtue had gone out of him,” and inquired who touched him, the woman “knowing what was” (already) “done in her,” came forward and told him the truth. He then told her that her “faith” had (already) made her whole.

Luke also says that the issue of blood staunched immediately upon her touching his garment. Then he goes on to relate that Jesus made the inquiry, who had touched him, and that the woman then declared to him, before them all, that she had touched him, and “how she was” (had been) “healed immediately.” There is no room to quibble upon this language. Either his garments possessed miraculous power, or it was her imagination that healed her, or she was not healed at all—for though an Evangelist say it, and though Jesus himself may have said it, (which is not very likely,) no reasonable being can believe that he was filled with a sort of miraculous “virtue,” which, when a person touched his garment, passed out of him, as electricity passes out of a cylinder, and that he would feel it leave him, as he is represented to have done, and that too when he did not know beforehand that any person was going to touch his garment.

But—to throw this disgusting nonsense about his “virtue” out of the question—there is a rational and obvious explanation of this matter. It is this. Her faith, in the efficacy of simply touching his garment, was so strong, that when she had touched it, she immediately did imagine, or did “feel in her body,” that she was healed, and told the bystanders so. They took her word that it was really so, without ever troubling themselves afterward to ascertain whether she were permanently healed. There were too many of these cures going on before their eyes for them to inquire a second time in relation to one, which they supposed had once been well performed. From the moment of the supposed cure, the story would circulate, and these narrators afterwards recorded it as it came to them—having probably never heard of the condition of the woman after the time of the transaction; yet not doubting that there were both a permanent cure and a miracle.

The fourth case, which will be examined, is that of the man, who was said to have a withered hand. It is related by Matthew (12—10 to 13,) Mark (3—1 to 6,) and Luke (6—6 to 11.) Independent of the improbability that a miracle was ever wrought on earth, there are two palpable ones against the truth of this story. One is, that a withered limb is met with so rarely, that the chances are as an hundred to one, that those ignorant persons would call a limb withered, when it only had some slight affection, rather than that it should be in reality withered. Another improbability of the change, in the man’s power to use his hand, being so great as to afford any evidence of miraculous power, arises from the circumstance, that of [27] the Scribes and Pharisees, who were among the most enlightened part of the community, and of course the least likely to be imposed on, in any case of an attempted or pretended miracle, there were some present, and they, when they saw the act which others supposed to be a miracle, were enraged at Jesus for what he had done. The narrators of this event attribute their anger to the fact that this act was done on the Sabbath day. But it is most manifestly absurd to suppose that men, such as they undoubtedly were, could look on and see a man’s hand, that was actually withered, restored and made whole by a word, and then have the hardihood to attempt violence, or plot mischief against the being who had done it. Men are not such monsters. But if the fact was, as all the probability of the case goes to show it to have been, viz, that in consequence of some slight infirmity, this simple man imagined his hand to be withered, and had not used it as usual, but, when commanded by Jesus, in whose miraculous power he had confidence, to stretch it forth, he used a little more effort than he was accustomed to, and stetched it out, and then, that many of the more ignorant ones, such as his disciples, should say a miracle had been wrought, it is perfectly natural that the Scribes and Pharisees should be enraged at seeing men thus duped by a fanatic and mere pretender.

Jesus made few or no converts among the enlightened part of the very nation that he pretended to be sent more especially to convert. Instead of working his miracles freely before such that they might be convinced, he, when in another instance, they had asked him to show them a sign—apparently for the express purpose of enabling them to determine whether he were the Messiah—called them (probably not to their face however) a wicked and adulterous generation for seeking a sign, by which they might ascertain that fact, (Mat. 16—4.) He was also continually fomenting the most narrow, illiberal and spiteful prejudices against them, in the minds of his ignorant followers. Such conduct, on his part, can be accounted for only by the fact, that when they saw, with their own eyes, those acts, which he called miracles, they, instead of being satisfied that he was the Messiah, were satisfied that he was an impostor.

The Bible represents the Jews as having been a people, upon whom God had bestowed peculiar privileges, with a view of making them the depositaries of the true religion, and of preparing them for the reception of the Messiah. Now if these representations in the Bible were true, and if Jesus were the Messiah, whom God had been preparing the minds of the Jews to receive, it is absolutely absurd to suppose that they would not have been the very first to have been convinced—and the fact, that they were not convinced, can be accounted for only by supposing, either that God was defeated and disappointed in his attempts to prepare them to receive the Messiah, or that Jesus was not the Messiah.

But to return. After Jesus had performed this supposed miracle, “he withdrew himself from thence,” (evidently through fear of the Jews,) “and charged” the people that had followed him, “that they should not make him known,” (Mat. 12—14 to 16.) Very dignified conduct, indeed, for a Son of God, or a Saviour of the world, and one too who could work miracles! But such was his course continually; and such cowardice reveals the character of the man, and shows us how much credit is due to his pretensions. If he had really been what he claimed to be, or had had any thing like moral courage, he would have better sustained the character he had assumed, and would have scorned that practice of skulking, which he so often adopted—another still more contemptible instance of which, related by John (7—1 to 10,) has been before referred to.

The fifth case, that related by John (5—2 to 9) only, of the “impotent man” at the pool of Bethesda, was probably like the last. The man, as simple ones generally, and others sometimes, do, probably magnified his infirmity, in his imagination, to a degree beyond the reality, and when he was commanded to rise and walk, he made more effort, and walked better, than usually, and that was a miracle.

The man evidently had full faith that he should be restored by being put into the pool, as is shown by the fact of his being at the pool for that purpose; and if he had been put in precisely at the time when he supposed the angel had troubled the waters, he would probably have been restored in the same manner that others were. But if he had been put in at any other time, he would have received no benefit—and for the very good reason, that he would not have expected to receive any.

The facts that a “great multitude of impotent folk, of blind, halt and withered,” waited at this pool for the angel to trouble the waters; that every one was cured of whatever disease he had, by being the first then to step in; and that none were cured, except such as stepped in first, prove that both the diseases and the cures were entirely, or in a great degree, imaginary. There was apparently just as much efficacy in the supposed troubling of the pool by an angel, and in the diseased person’s being the first to step in after that had been done, as there was in the command of Jesus to rise up and walk, and no more. They both affected the imaginations of the superstitious, and that effected all the cures there were in the cases.

Here too we are enabled to see how much of a miracle Jesus performed in restoring the “withered hand,” for John says that the “withered” could be restored by stepping into this pool, after the angel had troubled it, and before any other had been in. If then the withered, or those who supposed themselves withered, could in any case be cured by the power of the imagination, they would as likely be when Jesus pretended to work a miracle upon them, as when they stepped into the pool.

[28]

The circumstance too that there were so many withered people, as it is intimated by John that there were, at this pool, shows that there is no reason in believing that they were actually withered; because that is an affection, that is exceedingly rare. Yet those at the pool, who imagined themselves withered, are as likely to have been really so, as the one whose hand Jesus is said to have restored.

The sixth case, that of the woman, who had “a spirit of infirmity,” being “bound by Satan,” as Jesus said (Luke 13—11 to 16); also the seventh case, the cure of one leper, (Mat. 8—2 to 4, Mark 1—40 to 44, Luke 5—12 to 14); also the eighth case, the cure of ten lepers! (Luke 17—12 to 19), (who ever saw ten lepers at a time?) also the ninth case, the cure of the dropsy, (Luke 14—2 to 4), were all undoubtedly cures of the same kind as those that were performed by Valentine Greatrak’s glove, or by stepping into the pool of Bethesda first after it was supposed that the waters had been troubled by an angel. It is very probable that nine, out of the ten, of these lepers, did not consider themselves restored, for although one returned to thank Jesus for what he had done, the nine did not take that trouble.

We here have an opportunity to see on how slight a pretence these narrators would make up a story of a genuine, undoubted miracle. These lepers are represented as standing “afar off,” from Jesus, and calling to him to be healed. He simply tells them to go to the priest. They go, and nine of them do not return. Yet Luke says the whole were cleansed. Now, if they did not return, how did he know whether they were cleansed or not? Why, he inferred they must have been, and related it for a fact that they were, although he knew nothing about it.

There is no reason for supposing that any of these cures were any better ones than those effected at the pool, and it is clear that the cures at the pool were all the work of the imagination, or that the diseases themselves were so, and that there was no efficacy in the waters; because, if there had been any efficacy in the waters, people would have learned that the second one, who should step in after the gurgling of the water, could be healed as well as the first. If the imagination cured, at the pool, diseases, that were supposed to be real, the persons, whom Jesus cured, it is reasonable to suppose, had no diseases more real, or more difficult of cure, than the others, and were restored, or apparently restored, solely by being made to imagine themselves miraculously operated upon.

There are four different cases recorded of the cure of blind persons, viz: one in Matthew (9—27 to 30), where two were cured; one in Mark (8—22 to 26), where one was cured; one in John (9—1 to 7), where one was cured; one in Matthew (20—30 to 34), Mark (10—46 to 52), and Luke (18—35 to 43), where one, according to Mark and Luke, and two, according to Matthew, were cured. The accounts of Matthew, Mark and Luke, in the last case, refer to the same transaction, as appears by the context—for it took place, as they all say, when Jesus was near Jericho; and the similarity of the language, quoted by all, as having been used by the blind person or persons, confirms the fact. True it is, these cautions and credible historians disagree as to the number cured; but in relating so probable facts as miracles, such a slight discrepancy does not at all impair the credibility of the men, a sto all important particulars. Such a disagreement is not, in fact, at all material, for blind men in those days, judging from the Bible, were nearly as frequent as those who could see.

These also were probably cured in the same way as were those “blind” persons, who, John says, (5—3 and 4), were cured at the pool of Bethesda—and they were probably just as blind as those, and no more so. How did it happen that the blind were so numerous? Was the blindness real, feigned, imaginary, total or partial? To give a correct answer to this last question, it is only necessary to take into consideration the number of those called blind, and the manner in which those at the pool were cured.

Some of these blind men also seem to have had a power of locomotion rather unusual, to say the least, in really blind persons. On one occasion, (Mat. 9—27, 28), “two blind men followed Jesus, and when he was come into the house, the blind men came to him.” On another occasion (John 9—7) he told the blind man to “go, wash in the pool of Siloam,” and the blind man “went his way.”

In some cases it appears that Jesus cured the blind on certain conditions. For example, in one case (Mat. 9—28 and 29), he required of the blind men that they should believe, in advance, that he was “able” to restore their sight, and consented to heal them only in proportion to their faith. It requires but half an eye to see that the object of this condition was, to have something to attribute his failure to, in case his miraculous power should not “work well.” He, in that case, would unquestionably have said “O ye of little faith, why did ye doubt?” and would thus have made those asses believe that the failure was owing to their doubts. In other instances he used more jugglery and ceremony than would seem to be necessary, if he were a real miracle worker. In the case related by John (9—6 and 7), “he spat on the ground, and made clay of the spittle, and anointed the eyes of the blind man with the clay, and said to him, go, wash in the pool of Siloam.” In the case, which is related by Mark only (8—22 to 26), he led the man out of the town to do it; he then spit on his eyes, and put his hands on him, and then asked him if he could see. The man could not then see clearly, although he could see well enough to discover that a man looked like a tree. Jesus then put his hands upon his eyes again, and bade him look up! whereupon the man saw distinctly. Jesus then commanded him, “neither to go into the town, nor tell it to any in the [29] town”—a very singular command to be given by one, who was working real miracles in order to prove to the world at large that he was the Messiah.

We, of course, cannot say absolutely that there could not have been real miracles performed here; but, if there were, any but “blind men” can see that they were not wrought in a workmanlike manner.

The next case, being the fourteenth, that will be examined, is that of the alleged restoration of the daughter of Jairus from the dead, and is related by Matthew (9—18 to 26), Mark (5—22 to 48), and Luke (8—41 to 56). Now, supposing the story true, that the child arose, when Jesus “took her by the hand,” that does not prove that a miracle was performed, because we do not know that she was dead. These narrators say only what is equivalent to saying, that those in the house believed her dead; but it would appear, from Luke’s account, that after Jesus had seen the child, he said she was not dead, but that she slept.

The child, say the accounts, was twelve years old. How often is it that children of that age have fits, which, for a short time, cause them to appear dead, and are, immediately afterward, restored to health? How soon, after Jesus went into the room, she arose, we cannot know, because those who give us the story, did not see the transaction—they expressly say that, of his followers, only Peter, James and John were suffered to go with him. Whether Jesus lifted her up, as he did Simon’s wife’s mother, we do not know, but there is ground for the strongest presumption that he did, because “he took her by the hand.”

The most rational supposition that can be formed from the three disagreeing, indefinite and and carelessly told stories, which come from men who did not see the transaction, is, that the child had a fit, (perhaps only a common fainting fit), and lay apparently dead at the time the father ran for Jesus; and that when he arrived at the house, and before he went into the room where the child was, those, that had been in the room, but had then come out, told him that she was dead; but that, by the time he had come to the child, the fit had left her, and she lay asleep; and that then, in the course of the time he remained in the room, (how long that might be is uncertain), he spoke to her, took her by the hand and lifted her up, and that she then had in a considerable degree recovered. If such were the case, the story has come to us in just the shape we should suppose such a story would, coming, as this does, from men, who did not see any thing that they relate, but who honestly believed, from what they heard, that a miracle was performed.

But there are two or three circumstances, which render it extremely doubtful whether there was any thing in this occurrence, which, to the eyes of the actual witnesses, appeared even so marvellous as the case, above supposed, would have been likely to do. One is, that Jesus, when they came to him first, and told him the child was dead, would permit but three of his disciples to go in with him; and after the transaction (whatever it might be) was over, he charged them, and the parents also, to say nothing of it to any one. Another link in this chain of suspicious circumstances, is, that John, who, as the others say, was an eye-witness, says not a syllable about the matter. Now since Jesus would permit but three of his disciples to go in, and charged all, who were eye-witnesses, to reveal nothing, and as John, in his narrative, obeys this injunction, the fair presumption is, that Jesus, when he heard she was dead, doubted his ability to restore her, and did not choose to have too many witnesses to a failure; and that after he had come into the room, the transaction was not of such a kind, that he thought it safe for his reputation as a miracle-worker, that it should be known abroad; but that Matthew, Mark and Luke afterward obtained an inkling of the affair, which in some way leaked out, and which proved sufficient to enable them to make such a brief account of a supposed miracle as they have done.

Are we to believe a revelation on the testimony of works done in secret, and ordered to be kept secret?

The fifteenth case is related by John (4—46 to 54) of the cure of the son of a nobleman of Capernaum. It appears that Jesus did not see the subject of this miracle, He was at home; the father came to Jesus, and was told by him that his son lived; he (the father) then went away alone, and, as John says, met his servants, who told him that his son was better, &c. Now, since John did not go with the father, nor see the son, or know any thing personally about the time of his beginning to amend, all the testimony, that we have here to support the slightest possible pretence of a miracle, is simply John’s virtual declaration that he heard (how, or from whom, he heard it, the deponent saith not), that at the same hour when Jesus told the man his son should live, the son began to amend; and that he (John) had no doubt, from these circumstances, that Jesus wrought a miracle upon the sick man. But I suppose the day has gone by when such “circumstantial evidence” as this, is sufficient to prove a miracle.

The sixteenth case, is that related by Matthew (8—6 to 13) and Luke (7—2 to 10), of the Centurion’s servant at Capernaum, and is probably the same one as the last; but as the accounts differ a little, I thought proper to consider them as referring to different transactions. Here too the person sick was at a distance from Jesus; so that even if Matthew were with Jesus at the time, (which, if true, is not stated), he could not have personally known any thing about the cure, and could only have heard of it, as John did in the other case. But I suppose few men would now (although many would at the time of Jesus) believe a miracle was wrought, simply because a man, who believed in miracles, should say that he had heard, in a particular case, of such circumstances as satisfied his mind that there was one. Besides, another part of Matthew’s [30] story cannot be true. The man said his servant was “sick of the palsy, grievously tormented.” This could not be the case, because palsy, instead of grievously tormenting folks, never occasions pain, but generally deprives them of all sensibility to pain.

But supposing the servant did have a sudden and painful attack of some sort, which alarmed the Centurion, and then, while the Centurion was gone to Jesus, did actually recover from it, that is no proof of a miracle, because such temporary illnesses are frequent occurrences.

I now come to the examination of those cases, where Jesus is said to have cast out devils. But we will first inquire whether there ever were such a thing as men’s being possessed of devils. There is perhaps not an enlightened Christian in America, who, notwithstanding he may believe that, at the time of Jesus, men were possessed of devils, believes that they ever have been in any other instance, either before or since. And those, who believe that such was the fact then, believe it simply because a particular set of superstitious men, in a superstitious age, believed so, and have related some circumstances about it, which they say happened at that time. The testimony of the whole Jewish nation, who did not also believe in Jesus, would not have made them credit it for a moment. If the same thing had been stated in any other book than the Bible, men now would no more credit it, than they would an assertion that men were inhabited by the spirits of oxen and horses. Yet such is the unparalleled gullibility of some men in relation to every thing related in the Bible, or connected with Christianity.

There are indeed many Christians now, who do not pretend to believe in this matter literally. They will say that they suppose those individuals, out of whom Jesus was said to cast devils, were insane, or had some disorder, which the people of that nation, being ignorant of diseases, attributed to the influence of “evil or unclean spirits;” and that whatever that disorder may have been, Jesus cured it miraculously. But if such men will look at the accounts as they are told to us in the New Testament, taking the collateral circumstances, which are related, as facts, it is absolutely out of the power of the human mind, either by sophistical interpretation of language, or by any possible perversion of intellect, to believe that those persons were insane, or that they had any disorder, unless an imaginary one, other than that of being actually and unequivocally inhabited by such evil spirits, as, if they really existed, might more properly be denominated devils than any thing else. The narratives of the doings of Jesus state the precise number of devils, that went out of particular individuals—thus leaving no chance for equivocation, or any apology for the pretence that the persons were insane, in the ordinary acceptation of the word. For example, out of Mary Magdalen there actually went seven devils—seven individual spirits, or this affair of being possessed of devils was all a delusion. In other cases, Jesus is said to have cast out one, and in one instance a legion. If therefore men will believe the Bible, they must believe in devils too.

These accounts say further that these devils would speak. Mark says (5—12), after having spoken of a legion of devils being cast out, that “all the devils besought him, saying, send us into the swine, that we may enter into them.” If we believe the truth of these narratives, there is no escape from believing that there were such living and speaking creatures as devils, who inhabited both men and—swine!

Here the believer, or rather the one who wishes to be a believer (for I do not think it possible for any person of common knowledge and common sense any longer to be actually so) may perhaps, in the height of his embarrassment, put the question, how then are these accounts to be explained, unless we believe that those, who relate them, were knaves and liars? To answer this question is very easy. The people of that nation were superstitious enough to believe in devils, (as people have sometimes believed in witches), and to believe that they entered into men, and then controlled them as they pleased. When such a belief was prevalent, it is to be expected that among the more ignorant, who composed the great body of the community, there would be multitudes, who would imagine themselves to be possessed of them, just as some person, who have believed in witchcraft, have imagined themselves bewitched. A person, who should suppose himself under the dominion of devils, would imagine himself actually compelled, by a power which he could not resist, to such unnatural and strange conduct as he believed an evil spirit would instigate men to. And this fact accounts for the conduct of the man, (or men, for here again the stories disagree), spoken of by Matthew (8—28 to 34), Mark (5—1 to 17), and Luke (8—27 to 36), who was said to live among the tombs, to be driven by the devil into the wilderness, &c. A man in this condition, could be restored in no other way than by some deception of the imagination. This man was so restored. He believed Jesus to be the Son of God, as is proved by the fact that he addressed him as the “Son of the most high God.” He believed also that Jesus had power over evil spirits, as is proved by the circumstance that he “besought him not to torment him.” When therefore this powerful being should command the devils to go out of him, he, of course, would suppose that they had left him, and would then appear the sane. As for the rest of the circumstances related, such as that of the devils talking, going into the swine, &c., they are only such embellishments as a story of that kind would naturally gain by a very little circulation in such a community as that—and these historians, who give us the accounts, having, like the rest of their countrymen, perfect faith in the reality of such circumstances, would relate them, as they heard them, without in the least doubting their truth. It is evident that they only recorded the flying story of the times, from the fact that [31] they disagree as to the number healed. Matthew says two, Mark and Luke but one. That their different accounts refer to the same transaction, is evident from the similarity of the stories, and the language of each, and also from the circumstance that they are related by each immediately after the story of Jesus’s calming the tempest.

Besides the above, there are five different instances of Jesus’s casting out devils. One is related by Mark (1—23 to 26), and Luke (4—33 to 35). From both these accounts, it appears that the man, out of whom the devil was supposed to be cast, considered Jesus “the Holy one of God;” and that circumstance is sufficient evidence that the cure, like the disease, was the work of the imagination.

Another case is related by Mark only, (7—25 to 30). All that Mark knew of this case, as appears from his account, was, that he heard, (for he is not supposed to have been with Jesus), that a woman came to Jesus, and told him that her daughter, who was at home, was possessed of a devil; that he told her the devil had gone out; and that when she arrived at home, she found her daughter lying on a bed. To Mark’s mind, and perhaps also to the minds of some men in more modern ages of the world, these facts, thus obtained, proved a miracle.

Another case is related by Matthew (17—14 to 21), Mark (9—17 to 29), and Luke (9—38 to 42). According to Mark’s account, Jesus “rebuked the foul spirit, saying unto him, Thou dumb and deaf spirit, I charge thee, come out of him, and enter no more into him.” (Can any thing be imagined more ludicrous or disgusting than such a speech? Verily, “never man spake like this man”). Still, after he had said thus, “the spirit cried, and rent him sore, and came out of him, and he was as one dead, insomuch that many said he is dead. But Jesus took him by the hand and lifted him up, and he—arose!” and from the circumstance that he did arise, and probably appear more calm than before, they all inferred that he had been delivered of a real devil.

This wonderful exhibition of miraculous power so astonished Jesus’s disciples, that they afterwards asked him why they could not cast him out? (They, it seems, had attempted it, and failed, (Mark 9—18). He answered—doubtless with an air and manner becoming the solemn nature of the case—that “this kind (of devils) can come forth (be brought forth) by nothing, but by prayer and—fasting!”

Another case is related by Matthew only (9—32 to 34), of the cure of a dumb man, possessed of a devil. I will here add nothing, but a note of admiration, which appears to be very much needed, to the following brief, but graphic description of this affair by Matthew himself. “And when the devil was cast out, the dumb spake, and the multitudes marvelled!”

The last case of this kind of miracle-working, that remains to be mentioned, is that of the cure of the man, who, according to Luke (11—14), was dumb, but, according to Matthew (12—22), was both blind and dumb. Both accounts refer to the same transaction, as may be seen by the context following each. The difference in the accounts, of course, proves only the honesty of the writers; it does, by no means, prove their lack of inspiration, their carelessness about particulars, or their readiness to record any idle story, which they might hear, without inquiring cautiously into its truth. Each one supposed that future generations could only wish to know the simple fact that a miracle was wrought; and therefore, not imagining that they themselves could ever be suspected of having been mistaken as to the reality of the miracle, did not trouble themselves to relate many of those circumstances, that would enable men now to judge whether they actually were or not.

Matthew says that “they brought unto Christ one possessed with a devil, blind and dumb, and he healed him, insomuch that the blind and dumb both spake and saw.” Luke says, “and Christ was casting out a devil, and it was dumb. And it came to pass, when the devil was gone out, the dumb spake, and the people wondered.”

Language could hardly be selected, that should tell a stronger tale of superstition, than is conveyed in these brief lines. Men imagining themselves possessed of a devil! and that the devil prevents them from seeing! and speaking! others standing around to see the Son of God dislodge a devil, as boys stand around to see the tricks of a juggler.

If the Bible has accomplished enough of good to atone for the numerous and mischievous superstitions, which, in various ways, it has entailed upon, and introduced into, men’s minds, it has done more good than, I think, is apparent to most impartial observers of the whole of the history of Christendom, as compared with that of other nations of the same degree of intelligence. Even if it has not originated, it has, at least, justified, spread, and probably prolonged a belief in witchcraft and sorcery—it has introduced superstitions about a Son of God; about his visiting the earth in the disguise of a man! about a Holy Ghost, or Holy phantom; about a fictitious atonement, and a barbarous and useless sacrifice, which have for ages and centuries engrossed the minds of the few learned men, who otherwise might have been engaged in liberal schemes for improving society. And finally, it has spread wide a belief in angels, and miracles, and evil spirits—in a devil and his ten thousand deputies prowling about the universe.

I must now think that, of the thirty-three miracles of Jesus, twenty two have been disposed of in a manner, if not satisfactory to, at least, unanswerable by, the most resolute believer. Eleven remain to be examined.

[32]

One is that of calming the tempest, recorded by Matthew (8—24 to 27), Mark (4—37 to 41), and Luke (8—23 to 25). Matthew says “the ship was covered with the waves.” Mark says “the waves beat into the ship, so that it was now full.” Luke says “they were filled with water.” Now we know that these accounts cannot be true, because Jesus would not have remained asleep, had this been the case. These errors are mentioned merely to show the propensity these men had to exaggeration—a propensity, that, in many other instances, is manifest enough; but which is here so palpable that it cannot be denied.

Matthew says “there arose a great tempest,” and Mark says “there arose a great storm of wind.” But since these men have already been convicted of exaggeration, we may now judge for ourselves how great a “tempest” would be likely to arise on a little petty lake; (fourteen miles long, and five wide;) and, unless we have a very strong desire to believe in miracles, we shall probably come to the conclusion that a slight squall arose, such as generally continues for a few minutes; that, it being in the evening (as Mark says, and as is probable from the circumstance that Jesus was asleep,) these timid and superstitious men thought they should certainly be drowned; that Jesus, being called, commanded the waves of this mighty sea to be quiet; that when this sudden squall had passed, which probably happened very soon, the waves subsided, and they then thought the act of Jesus a miracle. These narrators, although they generally appear very fond of using the word “immediately,” when relating any occurrence, which they themselves could not have seen, but in relation to which that word is necessary in order to make out a good miracle, have, nevertheless, in this case, neglected, for some reason or another, to tell us how soon, after the command was given, quiet was restored—the fair presumption is then that the wind and waves took their own time in this matter, as they always have done in every other of the same kind.*

Another is that of Jesus’s walking on the sea, related by Matthew (14—24 to 32,) Mark (6—47 to 51,) and John (6—15 to 21.) John says that after Jesus had entered the ship, “immediately it was at land whither they went”—of course, it must have been near the shore when Jesus came to it. Furthermore, they all agree that it was in the night; John says it was dark. Now, inasmuch as Jesus never shewed any inclination to trust himself on the water in the day-time, without any thing to bear him up, is it not probable that he had at this time a plank, a slightly built raft, a small boat, or something else to stand on, which those in the ship or large boat did not see, or that he walked in the water instead of on it, rather than that he attempted to perform a miracle of that sort, and at that time, when none but his disciples, and probably not even these, would observe it? If he really could walk on the water, why did he not, at least once in his life, do it in the day-time, and in the presence of a concourse of people? He surely had opportunities enough.

But perhaps it will be asked, how did Jesus get to that side of the lake, unless he walked across the water? and a person, who should simply read the accounts of this affair, without looking at the map, would probably be misled into the supposition that the boat had crossed the lake, to the other side from where the disciples had left Jesus, and therefore that he could not have come to them unless he had crossed the lake also. But according to John (6—23,) it was at or near Tiberias, that the disciples left Jesus, and they landed (Mat. 14—34) in “the land of Genessaret;” and it so happened that Tiberias and Genessaret are on the same side of the lake, (See Ingraham’s map of Palestine) adjoining each other. Jesus, therefore, undoubtedly walked from one place to the other, (perhaps a mile or two) on the land, while the disciples went in the boat.

The third one of the eleven is that of the fig-tree, related by Matthew (21—17 to 22,) and Mark (11—12 to 23.) Matthew says the fig-tree withered away “presently.” Mark says that as they passed the next morning they discovered that it was withered away. But they agree as nearly as we can reasonably suppose two such persons would, who should relate miracles upon hearsay. Since the story has nothing probable about it, and since the accounts disagree, it is probable that they both differ a little from the truth, and that the fig-tree was withered away when they first came to it. This supposition is rendered more probable by the fact that Luke, who speaks of Jesus being at Bethany (19—29 to 40,) and of some other circumstances mentioned by Matthew, says nothing about the fig-tree. It is also rendered probable by the fact that there were no figs on the tree. Mark pretends to account for there being no figs on it, by saying that the time of figs had not yet come—but this is clearly a falsehood, for if such were the truth, why did Jesus go to the tree at all? Or way did he manifest so much disappointment at not finding figs, as to “curse” even a tree?”†

[33]

The fourth, related by Mark only (7—32 to 36,) is that of the cure of a man “who was deaf, and had an impediment in his speech.” Jesus, in order doubtlessly to have a fair opportunity to perform this miracle, and to do it in a manner to furnish evidence to the world of his miraculous power, “took the man aside from the multitude.” When he had done this, he “put his fingers into his ears;” “then spit, and touched his tongue;” then “looked up to heaven, and sighed,” and uttered the word Ephphatha, and thus, as Mark heard the story, opened the man’s ears, and loosed the string of his tongue so that he spake plain, and then “charged them that they should tell no man” of the occurrence.

The fifth, related by John (2—1 to 10,) is that of turning the water into wine. John says that this was the first miracle that Jesus ever performed; but does not say that he saw it done; and if it were his first attempted miracle, it is entirely improbable that John was present. Besides, towards the close of the preceding chapter, John speaks particularly of Andrew, Peter, Philip and Nathanael, as having become disciples of Jesus; but mentions none others as such, previous to this wedding. We must therefore suppose that John here only tells us a hearsay story. Now it would be nothing strange if Jesus were to go to a wedding—nor would it be any thing strange if they were to have wine there—nor would it be strange if Jesus should there make some pretensions to miracle-working—nor would it be strange, if, out of these circumstances, after he had obtained a little notoriety in his way, a story should be got up and circulated similar to that told by John; but it would be very strange if a man should work a miracle; and it would also be very strange that neither Matthew, Mark, nor Luke should ever have heard of this miracle, if there really were one wrought, (if they had heard of it, some of them would undoubtedly have recorded it, since they have taken the pains to record so many things of no consequence at all); and it would also be very strange if the saviour of a world should perform either his first or last miracle of this kind. We should as naturally expect a Son of God would exhibit his powers by making broomsticks dance cotillions, as by such a miracle as this. Still—as was before remarked—such a man as I have supposed Jesus to have been, would, when first beginning hesitatingly to think about working miracles, be very likely to have made an attempt or pretension of this kind—and if he but made such an attempt or pretension, that circumstance alone would afford sufficient materials for a future story.

The sixth, related by Luke (7—11 to 16), is that of raising from the dead the son of the widow of Nain. This story is told by none but Luke. He, as I have said before, was a citizen of Antioch, and was converted to Christianity by Paul—of course, he never knew any thing personally of Jesus or his miracles; he must therefore have depended entirely upon the stories of others for his information. Of whom he obtained it in this instance we know not. He wrote his narrative some thirty or forty years after the death of Jesus. So that all the evidence we have here to prove an occurrence so wonderful as that of a man’s being restored to life after he had once died, is a simple declaration, made many years afterward, by a man living remote from the place, and who could not have personally known any thing about what he was writing, but who has been shown heretofore to be credulous enough to believe miracles on the testimony of others.

Furthermore, neither of the other narrators, although two of them were of the twelve, give us any account of such an occurrence, although, if it really happened, they would most surely have heard of it, and if they had heard of it, they would as surely have related it; for, in order to make their stories as marvellous as possible, they have already gone so for as to relate for undoubted miracles many things, which they could not have known to be true, even if they were true.

The seventh case, that of raising Lazarus from the dead, is related by John only, (11 chapter). John does not say that he saw the act. If then we believe that, in this case, a man really died, and was then restored to life again, we must believe a fact, such as we could not now be made to believe if ten thousand of the most respectable men of any nation on earth should solemnly testify that they saw it. We must believe it too on the testimony of a single individual—one who gives the account forty years after the transaction is alleged to have been performed; who does not even say that he saw it; who is not supported by a single one of the many alleged eye-witnesses, nor by the testimony of any other person.

If the ten thousand should testify as I have supposed, we should then say, either that the man had not been actually dead, or that some deception or another had been practised upon the witnesses—and we should say so with perfect confidence too, because we should know, as absolutely as it is possible for us to know any thing, that such an occurrence could not have happened. Yet we are called upon to believe it in this case, upon such testimony as I have mentioned. Is it possible that the attempt can be made at this day, to impose upon men’s understandings by such stuff as this?

But there is evidence tending to discredit this story of John.

One part of this evidence is, that neither Matthew, Mark nor Luke speak of the affair. Yet Luke heard of, and even related (10—38 to 42), so small and unimportant a circumstance as that of Jeaus’s once being in Bethany, at the house of Martha, the sister of Lazarus, and yet he never heard (as we may safely infer from the fact that he never related it) of this miracle [34] wrought upon Lazarus—a miracle too, that is so much more wonderful than Jesus was generally supposed to perform.

If Jesus had actually raised Lazarus from the dead, and the act could have been well authenticated, (hardly a supposable case however), it must have been evidence of the strongest character of any that his works had ever furnished, that he possessed miraculous power—and so his disciples must have considered it, if they had possessed common understandings. Yet it was never noised abroad so as that any except John ever heard of it.

Matthew (26—6 to 13), Mark (14—3 to 9), and Luke (7—37 and 38) also heard of, and related, the circumstance of Mary, whom John says (11—2) was the sister of Lazarus, anointing the head of Jesus with ointment, yet they neither of them utter a syllable about his raising her brother from the dead. It is difficult to account for this fact, unless we suppose that John was actually dishonest, or that he took up, believed and recorded a flying story, which an occurrence of some kind had given rise to, but which was without any foundation in truth.

Furthermore, John says (11—45, 46 and onward) what is equivalent to saying, that a part of the eye-witnesses themselves, not only disbelieved that Jesus raised Lazarus from the dead, but believed that he was attempting to practise some imposition upon them. He says, “then many of the Jews, which came to Mary, and had seen the things which Jesus did, believed on him, but,” he adds, (and this “but” spoils his story) “some of them went their ways to the Pharisees, and told them what things Jesus had done.” He then represents that the Pharisees forthwith attempted to apprehend him, on account of the stories that had been told them by some of those who had witnessed the transaction.

It seems hardly possible to vindicate John from the charge of actual dishonesty—for he pretends to relate even the conversation, which the Pharisees held on this subject, when he certainly could not have known it. He also attributes to them motives and designs, which it is impossible should ever inhabit the breasts of human beings, viz: such as wishes to take a man’s life because he had raised a person from the dead. It is also incredible that they should dare attempt such an act, even if they wished to have it performed.

I think it would not be difficult to show that John’s love of distinction, his hatred of the Pharisees, and his determination to spread Christianity, led him to dishonest lengths in other cases. He was the one, (Mark 10—35 to 41), who was so eager to obtain from Jesus a promise of preference over the rest of his disciples, in heaven, (or more probably in the earthly kingdom), as that they were offended at him. He shows the same disposition afterwards, in his own narrative, by speaking of himself, in four or five different places, as “that disciple whom Jesus loved,”—thus pretending that he himself was the favorite over the others.

He also equivocates, (21—22 and 23), by pretending that Jesus, or the one whom he supposed to be Jesus, did not mean what his words most plainly import, and what John acknowledges that the disciples at the time understood him to mean. His motive for this equivocation may be traced to a circumstance related in his Biography in Lempriere’s Biographical Dictionary, where it is said that he wrote his narrative for the purpose of proving that Jesus was not a man, and in opposition to what he deemed an error, viz: a belief, at that time avowed, that he was but a man. This equivocation was necessary in order to make it appear that Jesus did not intend to intimate that certain things would happen, which had not happened, and were not likely to.

This purpose, in writing his narrative, accounts for his superior carefulness in relating, in connexion with the supposed miracles, any circumstances that might tend to discredit their reality; and also for the conversations which he relates as attending them; although it is evident that he must either have invented much of them, or adopted them from the mouths of others, without any thing like reasonable evidence of their genuineness—the former of which suppositions appears the more probable, both from his own character, (for he could then invent such conversation as would suit the circumstances of the case), and also from the fact that he could not, forty years afterward, have remembered such full, connected and unbroken conversations as he has pretended to relate.

John also (12—10 and 11) shows his bitter malignity, and his readiness to make the most diabolical charges, against such as did not believe Jesus to be the Messiah, by saying that the Chief Priests “consulted that they might put Lazarus also to death.”

Finally, he has more unmeaning theological cant in his narrative than all the other three together.

Nevertheless, it is possible that John has told an honest story in this case of Lazarus, and one too that is true in its main features. But if he has done so, he has implicated a man, whose character is of much more consequence to the Christian religion, than his own; and that man is Jesus. Several circumstances are related in this story, which, if they are considered to have really happened, furnish palpable and glaring evidence of collusion between Lazarus and Jesus. For example—Jesus knew, before he went, at this time, to Bethany where Lazarus lived, that Lazarus was dead, (John 11—14). Now how did he (being, as appears by the context, at a considerable distance off) know this fact, unless there had been a previous understanding between them that Lazarus should die about that time? He had heard (11—3) that he was sick, but there is no evidence that he had heard of his death. On the contrary, the disciples were utterly ignorant of it (11—11, 12 and 13) until the information [35] unexpectedly came from Jesus himself. How came Jesus by this information without the knowledge of his disciples? If a messenger had brought it, they must have known it too, for some of them were undoubtedly all this time with him. We have no right to say that he obtained it supernaturally, because it is not yet proved that he had any supernatural power. Yet he knows the fact, when they do not, and there is a way by which he may have obtained this knowledge. That way is this—Lazarus may have directed his sisters to send this message to Jesus, that he was sick, and this may have been agreed upon as the signal by which Jesus might know that Lazarus was about to die. If such were not the purpose of this message, why was it sent? We are told that Jesus lored Lazarus. But why then did he not go to him immediately on hearing that he was sick, instead of waiting, apparently without any necessity, for two or three days? The reason is obvious—he waited for him to die, and he knew that he would die. But he could not have known that he would die, unless it had been previously agreed that he should die. I repeat that it cannot be said that Jesus knew, by means of his supernatural power, that Lazarus would die; because that would be attempting to defend the miracle, on the evidence of his supernatural power, instead of proving the supernatural power by the miracle. Besides, if he could know, by means of his supernatural power, either that Lazarus was dead, or that he would die, he could also, in the same way, have known that he was sick, and it must therefore have been unnecessary to send the information of his sickness to him. Is there then any way, other than by supposing collusion, in which this matter can be explained?

Again. Jesus declared (11—4), when he first heard of the sickness of Lazarus, that one object of this sickness was, “that the Son of God might be glorified thereby,” (that is, that he himself might get some credit by it). Now, how did he know that it would terminate so as that he should get credit by it? We cannot, I again repeat, say that he knew it by means of his supernatural power, because that would be assuming him to have supernatural power, and then attempting to prove the miracle by it; whereas the power must first be proved by the miracle. Besides, there are too many cases of his making inquiries for the sake of ascertaining what his inquiries imply that he did not know, to leave any apology for pretending that he knew any thing supernaturally. There is then but one answer to the question, how he knew beforehand the manner in which this sickness would terminate? and that answer is, that it had been agreed between him and Lazarus how it should terminate, and Jesus inferred that he should gain some credit by it.

Again. There is something very suspicious in the manner, in which he communicated to his disciples the fact, that Lazarus was dead. He communicates it to them as if it were something, which he was aware would surprise them, but which nevertheless was not new to him. The manner, in which he introduces the matter, is peculiarly suspicious. He does not at once come to the point; but speaks allegorically, says Lazarus is asleep, &c., and that he must go and wake him.

Another suspicious circumstance is, that Lazarus was buried neither in a grave, nor a tomb, but in a cave. The man might live very well in a cave; he might himself have deposited provisions there beforehand, and he might have told his sisters where and how soon to bury him, after he was dead. He seems also to have had a very short sickness: his sisters send word to Jesus that he is sick, and the next thing we know of him is, that in about two days, (as it would appear from the story, although it is not explicitly stated), he is dead. He seems too to have been buried in a great hurry; for when Jesus arrived, “he had lain in the grave four days.”

Another suspicious circumstance is, that the stone, that lay upon the cave, must be removed, (11—39), by hand too, before the supernatural power could operate so as to bring the dead man out. A stone, laying over the mouth of a cave, must be a great obstacle in the way of a miracle.

Another circumstance, of the same import, is, that when Jesus came to the work of raising Lazarus, “he cried with a loud voice,” to call him out. Now it might be necessary to speak loudly to make a living man, who was in a cave, hear; but a dead man could have heard a less labored tone equally well.

Again. There was an altogether unusual ostentation about this miracle. Jesus talked a great deal about it beforehand; spoke of it as an affair that was to accomplish great things in the way of glorifying God, and himself too.

Another circumstance against the reality of this resurrection from the dead, is, that Jesus never raised any others from the dead. (I here take it for granted that it has been shown that there is no sort of reason for pretending that he raised the son of the widow of Nain, or the daughter of Jairus). If he could really raise men from the dead, why did he not show his miraculous power again and again, in this way, so as to place it beyond dispute; instead of curing sick folks, casting out devils, spitting in men’s eyes, filling them with clay, touching their tongues, putting his fingers in their ears, and such like disgusting farces, ten thousand of which would be no evidence of any thing except that he was an impostor or a fool? If he could really raise men from the dead, he could have established himself at once on the credit of his miracles. And yet one solitary case, and that too surrounded by circumstances of the strongest suspicion, is all the evidence he ever gave, in his whole career, of his power to raise the dead.

[36]

Again. Judging naturally of a portion of this story (11—45 and 46) we have abundant evidence that a part of the eye-witnesses themselves detected the hoax on the spot. The story is that some of them believed, but that others went forthwith to the Pharisees—known enemies of Jesus—and made such representations that measures were immediately taken to have him apprehended. How is this conduct of these witnesses to be accounted for, unless they discovered the cheat?

It appears also (John 12—10), that the Chief Priests were satisfied—probably by the story of the same witnesses—that Lazarus also was a knave, for they are said to have consulted to put him to death—a thing, which they never could have dreamed of doing for the cause which John assigns.

The world has been full of alleged miracles, but I do not believe another record of one can be produced, containing such irresistible evidence of fraud as this.*

To proceed with the examination of the remaining miracles. There are two cases, where Jesus is said to have fed the multitude miraculously. One case is mentioned by Matthew (14—15 to 21), Mark (6—41 to 44), Luke (9—12 to 17) and John (6—3 to 14), where five thousand (an undoubted exaggeration—another “great tempest”) were said to have been fed from five loaves and two fishes. The other instance, where he is said to have fed four thousand, is mentioned only by Matthew (15—32 to 38) and Mark, (3—1 to 9). All that is necessary to reply to such accounts as these, is, first, that neither of those, who tell the story, says that he himself was present, and even if any one of them had said so, they have all been convicted of so much exaggeration and misrepresentation, that they would not deserve to be credited so far as to have a miracle, or any other improbable story believed on their testimony—and secondly, that if Jesus ever had any thing to do in distributing food to five thousand men, who believed in his miraculous power, there were then five thousand probable chances; and if he ever had any thing to do in distributing food to four thousand of the same sort of believers, there were then four thousand probable chances, that stories respecting the circumstance would be told, and would get magnified into a miracle, although there were none, and that these stories would be believed by all his followers—these narrators among the rest—who should not absolutely know the contrary, and who were eager to believe every marvellous story about him, of which there was to their minds a possibility of truth.

In the last of these two cases, a very good reason can be conjectured, why the fragments, that remained, should be equal to the amount distributed. It appears (Mat. 15—32, Mark 3—2) that this company had been in “the wilderness” three days, and it is probable that the loaves and fishes had been there the same length of time. The climate of Judea is warm.

Another case is that of the miraculous draught of fishes. It is related by Luke only (5—4 to 11). He says that fishes enough were caught in one net, at one draught, to fill two “ships” so full that they began to sink. (Mr. Luke, that’s a great story to tell). Matthew (4—13 to 22) and Mark (1—16, 18) both speak of the same occasion, and of some of the incidents related by Luke, yet neither says any thing about any fishes being taken—the probability is, therefore, that Luke was misinformed in this respect. Besides, Luke says (5—9 and 10) that John was there, and that he “was astonished at the draught of the fishes which they had taken”—yet, for some reason or another, John did not see fit to vouch for this miracle, or even to allude to it—perhaps he had a little more discretion than Luke.

One miracle only remains. This is related by Luke only (22—50 and 51). He says that when a servant of the High Priest had his ear cut off, Jesus touched it, and healed it. It is a sufficient answer to this, to say that Luke was not there, and probably never heard even of the ear being cut off until many years afterward—that during this time a story about so insignificant an incident as the cutting off of a man’s ear, would very naturally gain the appendage, which is here attached to it, viz: that it was also healed. But there is another answer, which, even if it stood alone, would be sufficient. That is, that although Matthew, Mark and John (two of whom were of the twelve, and were probably at or near the spot at the time) relate the fact of the ear being cut off, neither of them says a word about its being healed.

Thus much for the reality of those miracles, that have imposed on a larger proportion of enlightened men, in modern times, than at the time when they were supposed to have been performed. If an hundredth part of the effort, which has been made to prove these events to have been really supernatural, had been directed (as on the plainest principles of reason it should have been) to the accounting, in a natural manner, for the stories respecting them, the difficulty would have long since vanished.

Honesty of intention may, nevertheless, in general, fairly be accorded to these writers, in circulating these stories about miracles, for the truth of which they do not explicitly vouch as eye-witnesses. Some of these transactions were probably supposed by Matthew and John, who were of the twelve, to have occurred when they were absent; and they, having often seen him, as they believed, cast out devils, and heal the sick, which, to their minds, were as real miracles as the raising of the dead, or the removal of a mountain, would not in general doubt in the least the truth of any stories that they might hear. Mark and Luke, not being [37] of the twelve, but being, Luke certainly, and Mark probably, subsequent converts, of course depended upon the stories of others for every thing they relate. Luke, depending upon this source of information, has gone so far as to relate (Chap. 1), for realities, even the conversations, that angels were said to have held with persons on earth fifty or sixty years before the time when he wrote his narrative. Can any stronger evidence be desired to prove that many of those conversations and circumstances, which these narrators recorded so many years after the transactions, were such as their own imaginations, from having long dwelt upon those occurrences, and the imaginations of others, among whom the stories had previously circulated, furnished as appendages to the truth? Or can any stronger proof be required of the credulity and superstition of these writers, or of their readiness to adopt any story, however improbable in itself, that should be floating in that community? a community, the very atmosphere of which, it would seem, must have been saturated with reports of the marvellous works of the various Christs or Messiahs, who each appear to have been attempting to prove their pretensions by the same kind of means. Yet it is almost entirely this kind of hearsay testimony, such as would be scouted at in a Court of justice, if offered for the purpose of proving the most common and natural events, upon which men believe in occurrences vastly more improbable than any that ever resulted from natural causes.

One argument, that is frequently alluded to in support of the reality of the miracles of Jesus, is perhaps worthy of a notice here, in addition to what has been said. This argument is, that even the opposers of Jesus acknowledged that he wrought true miracles. One answer to this argument is, that their admissions are not at all binding upon us: and therefore even if they did make them, we have an undoubted right to inquire whether they may not have been mistaken. And if we make this inquiry, we shall unquestionably find that they may have been, because among them a miracle was considered to be a very common occurrence, and capable of being wrought apparently by almost any one who was disposed to attempt it. It would be nothing strange therefore if some of the opposers of Jesus should acknowledge that he wrought miracles. He himself virtually acknowledges (Mat. 24—24) that the false Christs could work miracles, and also that the man, who used his name to cast out devils (Mark 9—38, 39 and 40), wrought real miracles.

Another answer is, that these admissions generally appear to have been made, if made at all, not upon actual observation, but upon the representations of others. They also appear not to have been heard, by these writers who relate them, but simply to have been heard of, or inferred, by them; as they evidently must have been in the case of Lazarus (John 11—47), because these disciples could not have been present at the consultations held on this subject by the Priests and other leading men. What then would a million of such facts be worth to prove miracles?

There are a few additional circumstances tending, so obviously, to confirm the views I have taken of the miracles of Jesus, that they are not to be omitted.

Luke says (23—8 and 9) that when Jesus was brought before Herod, Herod desired to see him work some miracle, and asked him many questions; but that Jesus answered nothing. It appears that Herod intended to deal uprightly with Jesus, and was also prepared to believe the evidence of miracles. Why then did not Jesus, if he possessed miraculous power, take advantage of such an opportunity, to do something before this assembly to prove that he was what he had professed to be?

At another time the Jews (John 2—18 to 21) asked him to show them some sign (miracle) as an evidence of his right to attempt to drive them from the temple—and a very reasonable request it was. But the only miracle, that he proposed to work, was to rebuild the temple in three days, provided they would first destroy it. But they, like rational men, had not sufficient confidence in his power to do it, to induce them to demolish it, for the sake of giving him an opportunity to try the experiment.

John says that Jesus here referred to “the temple of his body.” This is evidently another of John’s equivocations, for if he did refer to his body, he was a cheat and an intentional deceiver, since he must have known that he was, by his language, causing them all to understand him as referring to the temple, in which they then were.

In the early part of his preaching, when he was at Nazareth, (Luke 4—16 to 30), he went into the synagogue, and pretended that he was the one who had been prophesied of, but virtually acknowledged that they had a right to expect that he would show them some miracle, by which they might know that he was what he pretended to be—and the only reason he assigned for not performing one, was this potent one, viz: that a prophet would not be respected in his own country. Those, who heard him, were so offended at what appeared to them (reasonably too) an attempt to dupe them, that they thrust him out of the city, and led him to the brow of a hill, as if they intended to cast him down headlong; but when they had come there, “he, passing through the midst of them, went his way”—which language, if we had the true version of the affair, would probably read thus—“when they had frightened him by pretending to be about to cast him headlong down the hill, they let him go.”*

John, speaking of another occasion, says (12—37) “though he had done so many miracles [38] before them, yet they believed not on him.” It appears extremely probable that God would send a messenger on earth, and, in order to prove him to the world to be his messenger, should give him miraculous power, and that then this messenger should not be able to perform miracles of such a kind as would convince even eye-witnesses.

In another instance Matthew says (13—58) “and he did not many mighty works there because of their unbelief.” Now if it was the great purpose of his mission to bring men to believe on him, when he found any incredulous, that circumstance, instead of furnishing a reason why he should not work miracles before them, was only an additional reason why he should not fail to work such as would inevitably convince them.

Mark, (6—5 and 6), speaking of the same occurrence, says, “and he could do there no mighty work, save that he laid his hands upon a few sick folk, and healed them, and he marvelled because of their unbelief.” This declaration of Mark virtually denies his miraculous power in loto, because if he possessed it, he could certainly, wherever he might be, have found something beside sick folks upon which to exert it.

When the Pharisees wished to see some evidence of his being what he pretended to be, (Mark 8—11 to 13), he appeared (to his disciples at least) deeply afflicted that men’s hearts should be so hard as not to believe without evidence, and said he would not show them any sign, but “left them and departed.” Mark says the Pharisees asked him the question “tempting him.” But the question was certainly a proper one, and what evidence is there, that their motives, in asking it, were not of the same character?

For some reason or another, Jesus was very suspicious of the enlightened part of the community—a little more so: it seems to me, than a genuine Messiah would have any occasion to be. He was continually apprehending some trap, or design against him. He was also continually laboring to excite the prejudices of his disciples against them—conduct not very consistent with the idea that he was really a superior being.

Again. Jesus told his disciples (Mark 11—23), that if they were to command a mountain to move, and should not doubt in their hearts that it would move at their bidding, it actually would move. Now why did not he himself remove a mountain, if it could be so easily done, and thus present to all future generations a convincing and eternal monument of his Messiahship? One such miracle would be worth a million performed upon persons that pretended to be sick, or possessed of devils. It would have been worth a million of those pretended miracles, that, like all the other pretended miracles with which the world has been filled, vanished at the moments, and left no trace behind. But one answer readily occurs to such a question, viz: he could not.

Some may say that it did not become him to perform miracles, that would not accomplish any physical good—but if he were such a being as he pretended to be, and his doctrines were true, it was of more importance to bring men to believe these facts, than it was to cure all the sick people that ever lived. He ought therefore to have adapted his miracles to the accomplishment of the most important purpose he had in view.

John says (6—30), that on a certain occasion, the people asked him directly, “What sign shewest thou then, that we may see, and believe thee? What dost thou work?” This was putting the question home to him, and why did he not meet it, if he could, as he evidently ought? Could any request have been more reasonable, or more candid? Or could any combination of circumstances whatever have called upon him more urgently to display his miraculous power, if he had any, than did those in which he was then placed? It appears by the context, that there was an assemblage of people present, who had taken much pains to find where he was, and to come to him, and their question implies a readiness to be convinced by miracles. Yet all the satisfaction, which this man, who went about the country boasting what he could do, gave to these honest, proper and candid demands, was to evade them, to stand on his reserved rights like one who had nothing else to stand upon, and then to run into a long fanfaronade about his being the bread that came down from heaven, about his being better bread than the manna that was given to the Israelites, about the effect of eating his flesh, and drinking his blood,* and such like stuff, disgusting enough to sicken any one except such as have made up their minds, in advance, to swallow, as a delicious morsel of divine truth, any thing, and every thing, that may be found in the Bible, be it whatever it may.

John also (6—66), after having related the above affair, adds, “From that time many of his disciples went back,” (as well they might) “and walked no more with him. Then said Jesus unto the twelve, will ye also go away?” The terms of his question to the twelve seem to imply that all his disciples, who were present, except the twelve, deserted him at this time. But whether all deserted him, or not, there can be no reasonable doubt, judging from John’s account, that a large portion of them did. Now it appears, by the former part of the chapter, that but a short time before, he had five thousand persons following him—and yet he now finds himself so nearly destitute of friends, that he is afraid that even his chosen few will desert him also. It has been said by the advocates of Christianity, that we ought not to consider the reality of the miracles of Jesus as resting solely on the testimony of the narrators, but as being supported by the convictions of great numbers of eye-witnesses. How, let it be asked, [39] will those advocates pretend to meet the fact above referred to? Here were “many” men, who had followed Jesus so long, that John calls them “his disciples,”—men, who undoubtedly had seen as much evidence of his miraculous power as he was able to exhibit—who were undoubtedly credulous enough to have been easily deceived by pretended miracles, and who yet desert him, and refuse to follow him any longer. The testimony therefore of “many” of his own followers, credulous and simple as they were, instead of being in favor of the reality of his miracles, is directly and positively against them. The inquiry may now safely be put, whether Christians have it in their power to put into their case, any evidence that can control this otherwise decisive testimony, which comes from those whom they had all along claimed as their own witnesses?

If any one wish now to determine whether a sufficient answer have been given to the alleged miracles of Jesus, he has but to look back, and see whether he can put his finger upon any individual case, and say that the evidence relating solely to that case is conclusive that there must have been a miracle. Unless it be conclusive of that fact, it is unreasonable at all to regard it; because the probability must always be against the miracle so long as there is a discoverable lack or uncertainty in the evidence.*

The supernatural occurrences, that are said to have taken place at the death of Jesus, may properly be referred to in connexion with the miracles.

Matthew (27—45), Mark (15—33) and Luke (23—44) say that while Jesus was on the cross, there was, for three hours previous to his death, “darkness over all the land” The testimony of Mark and Luke to this matter is not worth noticing, because there is no reason to suppose that they state any thing but a hearsay story. As respects Matthew, he has said enough to prove, that, if there were any darkness at all, there was none that was so extraordinary as it must be supposed, from the fact of his mentioning it, that he intended to have people believe it to be. In the first place, if it had been thus extraordinary, the Jews must have been alarmed, and have desisted from the execution; but the fact that they did not desist, although by so doing, at any time during these three hours, they might have saved the life of Jesus, is sufficient evidence that there was no such darkness. Matthew (27—36 to 49) says also what is equivalent to saying, that those, who witnessed the crucifixion, felt a curiosity to see whether any thing extraordinary, or supernatural would happen, but saw nothing of the kind.—“Sitting down, they watched him there.” He then adds that some of them said, “Thou that destroyest the temple, and buildest it in three days, save thyself. If thou be the Son of God, come down from the cross.” The “Chief Priests, Scribes and elders” also said “he saved others, himself he cannot save. If he be the king of Israel, let him now come down from the cross, and we will believe him. He trusted in God; let him deliver him now if he will have him.” And again, but just before his apparent death, when he had cried “Eli, Eli,” &c., and one had then run to put a sponge to his mouth, “the rest said, Let be, let us see whether Elias will come and save him.” These things show that there was such a curiosity felt as I have mentioned, and that this curiosity continued until they supposed him dead. Now, is it to be believed that these men would have remained there, on the look-out for marvels, up to the very moment of his last gasp, as they supposed, and would then have so coolly said “Let be, let us see whether Elias will come and save him,” when they had been witnesses, for three hours, of a continued and surprising “darkness over all the land,” at mid-day? The thing is incredible—the falsehood is too bare to be disguised for a moment. John makes no mention of this darkness.

Matthew says also (27—50 to 53) that when Jesus died, “the earth did quake, and the rocks rent, and the graves were opened, and many bodies of the saints, which slept, arose, and went into the holy city, and appeared unto many.” But he does not say that he saw these things. Now is the word of this man Matthew—a man, nearly half of whose narrative appears to have been but the work of a “terrible-accident-maker”—to be taken for such facts as these? Who but he had ever heard of the earth’s quaking, the rocks rending, graves opening, dead rising, &c.? No human being on earth, that we have any evidence. Besides, even John, who says (19—25 to 27) that he stood by the cross, and that Jesus, while on the cross, spoke to him, says not a word of any such events; yet there is not room for a reasonable doubt that he would have done so, had they ever happened.

Besides, it is incredible that the Jews, who knew that Jesus pretended to be the Messiah, and who were among the most superstitious people that ever lived, should not have been appalled by such a scene, if any such had happened, end have been converted; yet they were not converted; nor did they, although as I have said before, they were on the look-out for marvels, see any thing to change their minds in relation to him.

This story again shows the extent of the delusion among the followers of Jesus, and that Matthew was ever ready to relute, for truth, not only every thing, however impossible, that he heard spoken of, but probably also some things which he did not hear spoken of.

[40]

CHAPTER IV.: The Prophecies.

Of those predictions in the Old Testament, which are sometimes regarded as prophecies, only one, beside such as are said to relate to Jesus, will be particularly noticed; and that, not because it has any resonable claims to be considered a prophecy, but because it is frequently mentioned as such.

It is said to refer to the present state of the Jews. It is contained, I believe, principally, in the 28th chapter of Deuteronomy, and the 26th of Leviticus—and was uttered by Moses—how many centuries before the time of Jesus, I leave to others to calculate. I have refered to these chapters, and if the reader attaches a feather’s weight to the predictions interspersed through them, I ask him, before going farther, to turn to the chapters, and read the whole of them. I hardly believe there is, in the country, a man of common sense and common intelligence, who will read them, and will then look an unbeliever in the face, and say he believes that Moses had any, the most distant, reference to the state of the Jews at this time, or that he intended the most remote intimation that any of those punishments, which he threatened, would be visited upon the Jews on account of their rejection of any Messiah, or any being like a Messiah.

Moses was in the habit of pretending to have personal communications from Deity, in private, and to receive (Mahomet-like) from him those instructions, which, as the pretended agent of God, he imparted to the ignorant, superstitious, simple and credulous Israelites.* In this way he imposed upon, and preserved his influence over them. He was in the habit also of promising to them every variety of worldly prosperity, if they would obey the commands, which he, as if in the name of God, enjoined upon them, and of threatening them apparently with all the worldly evils that he could conceive of, in case of their disobedience.

In the context immediately preceding these chapters, he gives the Israelites various commands as usual, and then follows them with such promises and threatenings as would naturally appear to him necessary to insure obedience. Among a variety of other threatened calamities, he enumerates dispersion by their enemies, and, on the other hand, among the promises, he enumerates, in palpable, and almost literal, contrast to the threat, success in putting their enemies to flight; but in all this he says no more about a Messiah than he does about Vulcan or Neptune. And those predictions, which some would fain have understood as intended to refer to the present condition of the Jews, are such as would not now be thought of by Christians, as having any reference to any thing but the case then in hand, had not the advocates of Christianity, in order to support the truth of the Bible, been driven to the necessity of grasping at shadows instead of realities.

But there is one way, in which every man can settle all questions in relation to these predictions, viz: by answering to himself the question, whether, if the Jews had never been dispersed, he would consider these predictions intended as prophecies, and as having so failed, as that their failure would be substantial evidence against the truth of the Bible? If such a failure would not have been evidence against the truth of the Bible, such a fulfilment, as is set up for them, cannot be evidence in support of it.

The idea that God dispersed the whole nation of Jews, and that he continues them in that dispersed state, simply because they were and are not convinced that Jesus was the Messiah, or because a few of their nation, many centuries ago, put him to death, is consistent with the Old Testament doctrine that Cod punnishes the children for the iniquities of the parents, and also with the New Testament doctrine that God will punish men for not believing what appears to them improbable—but it is not consistent with the views that unbiassed minds have of the nature of justice.

Many people think the present temporal condition of the Jews is evidence that God is puning them for their obstinacy in not believing in Jesus. Now the condition of many millions of Africans is far worse than that of the Jews; but can any one of those, who know so much about God’s designs in bringing calamities upon particular nations, tell us what he is punishing the Africans for?

Do the ancient and modern conditions of the Jews furnish any more evidence that they were once God’s favorite nation, (as the Bible pretends), or that they are now the objects of his dislike, [41] than do the ancient and modern conditions of the Africans, of their having once stood, and of their now standing, in the same relations to God?

Suppose the inhabitants of some petty province in India should pretend that their ancestors had once been the favorites of Deity, could they not, by referring to their history, and to the Shaster which they suppose God has given them, support their pretensions to that distinction just as strongly as the Bible does those of the Jews? And could not we, in their present condition, find as much proof that Deity had become offended with them, as we can, in the present condition of the Jews, that God is offended with them?

Let us now look at those predictions, that are said to foretell a Messiah, and to have been fulfilled by Jesus. I know of three only that are worthy of notice.

The first commences at the thirteenth verse of the fifty-second chapter of Isaiah, and extends through the subsequent chapter.

It is a sufficient answer, for the present, to this description of the “servant of the Lord,” as he is called, to say, that it is so indefinite, that it would apply to many others as well as to Jesus—and even if it delineated the character and history of Jesus a little more nearly than those of any other person, still it is entirely too indefinite to furnish any thing like reasonable grounds for believing that Isaiah foresaw either a Messiah, his character or history. Almost every paragraph, that applies with any justness to Jesus, would also apply equally well to a great number of those men who pretended to be prophets, and who were killed by the Jews.

In the twenty-third chapter of Matthew (30th, 31st, and 34th verses). Jesus accuses the Jewish nation of having “persecuted, scourged, killed and crucified the prophets, the wise men and scribes, which had been sent unto them.” In the thirty-seventh verse he says, “O! Jerusalem, Jerusalem, thou that killest the prophets, and stonest them that are sent unto thee,” &c. It appears from these declarations, that if Isaiah intended by his description of a “servant of the Lord,” only a general description of the characters and fates of those, who, in different ages of the Jewish nation, professed to speak to the Jews in the name of the Lord, his language would apply to them, with the same propriety that it would to Jesus; and it is far more probable that he should have had those men in his mind than a Messiah, because he had personal opportunity of observing their characters and fates. They were men, to whom the Jews not only refused to listen, but whom also (as appears by the language of Jesus before quoted) they treated with the greatest indignity, insult and cruelty. They, far more than Jesus, might be said to be “men of sorrows and acquainted with grief,” for they could have had but few friends or followers. They “had no form, or comeliness, or beauty, that caused them to be desired”—they were “brought as lambs to the slaughter”—they must have been, by those who believed in them, “esteemed stricken, smitten of God, and afflicted”—they were “cut off out of the land of the living”—they had “done no violence, nor was any deceit found in their mouths.” They were probably inoffensive, deluded men, whose imaginations were filled with extravagant notions about God’s intercourse with men, and his method of governing them; and, owing to this cause, they were continually dreaming that God came to themselves, and commanded them to declare to the Jews that this evil, and that evil, would come upon them, and that this and that great and important religious event was about to happen. But the Jews, having no confidence in them, persecuted and destroyed them.

Isaiah speaks of the Almighty making the soul of his “servant an offering for sin”—and this language perhaps may at first view appear to have more relation to Jesus than it could have to a prophet. But, if—as all men of common sense, who disregard authority, believe—sacrifices are of no avail, and the doctrine that God requires them imputes to him, not only absurdity, but injustice also, and unnecessary and barbarous cruelty, then this intimation, that the soul of the “servant of the Lord” was to be made an offering for sin, is one, which Isaiah could not have been dictated by God to have uttered, and it could with truth apply neither to Jesus, nor any one else.

But should it yet be contended that Jesus was made an offering for sin, (a supposition, which certainly cannot be proved), it might then be replied that there can be little doubt that Isaiah, who, of course, believed in the utility of sacrifices, believed that every one of those, who were slain for preaching (as he supposed) in the name of the Lord, were made offerings for sin. It was perfectly natural that he should believe so. How otherwise would a man, with his views about God, about the moral condition of the Jews, about the necessity of sacrifices, and about the religious character of those who were slain, account for the fact that God permitted them to be slain, than by supposing that they were made offerings for sin?

If he considered them offerings for sin, it was then perfectly natural for him to believe that these sacrifices would redeem many, and that the individuals, supposed to be offered as sacrifices, would “see their seed,” (for those redeemed by them could be called their seed, with the same propriety that those redeemed by Jesus could be called his seed)—that they “should see the travail of their souls and be satisfied,” &c. So that considering this description of the “servant of the Lord,” in whatever light we may, it will still apply to many of these supposed prophets with nearly, if not entirely, the same force that it would to Jesus, even if he were what Christians suppose him to have been.

There are strong reasons for believing that Isaiah referred to such, generally, as he esteemed the servants and prophets of the Lord, but who were despised and persecuted by the Jews. [42] If he meant a Messiah, and if he himself were actually a prophet, why did he not (as well as Daniel) use the word Messiah, instead of one so indefinite and general in its application as servant? If he meant a Messiah, why did he not tell us more about him—when he would appear, &c.? Above all, why did he not describe him so that, when he should appear, he might be identified by the Jews, and distinguished from all others?

But suppose he did actually mean a Messiah—what then? The fact that Isaiah expected a Messiah, or that he dreamed or imagined that the Lord told him a Messiah was to come, does not prove at all that there ever was to be a Messiah. The fact, that the whole Jewish nation expected a Messiah, is no evidence that a Messiah was actually to come. The combined facts, that a Messiah was predicted, that a Messiah was generally expected by the inhabitants of Judea, that he was expected near a particular time, and that, about that time, one or seventy appeared, each pretending to be the Messiah, do not prove, or have any sort of tendency to prove, that there ever was, or ever was to be, any such being as a Messiah. Judging naturally on all these facts, they are only evidence that some superstitious man, whose head was full of marvellous thoughts about what God would do for those whom the individual supposed to be his favorite nation, dreamed, or imagined that God told him, that He would send a Messiah; that this individual proclaimed what he supposed God had told him; that the nation, who were always ready to expect some extraordinary interposition in their behalf, were favorably struck with the idea of a Messiah; that the belief, that one would come, became prevalent; and that, in consequence of that general belief, a great many, were so infatuated as to imagine, or so dishonest as to pretend, (knowing the contrary), that they themselves were the individuals appointed by God to be Messiahs, and did actually claim to be such: There is nothing mysterious, or supernatural, or improbable, in such a combination of facts. They all, in a community so superstitious as that of Judea, would naturally follow the simple one, that some priest, or some one whom the people regarded as a prophet, imagined that God would send a Messiah, or dreamed that God told him he would send one.

This idea of a Messiah is one, that would be very likely to occur to the mind of a priest, or one who should believe himself a prophet, among a people like the Jews, who believed in sacrifices, believed themselves the special favorites of God, and believed also that God frequently interposed miraculously for their welfare. This priest, from the nature of his office and employment, would naturally have his mind occupied with thoughts about God’s intentions respecting his favorite people, and his designs in relation to their religious welfare. It would be nothing remarkable if such an individual, who should imagine that there was a necessity for some new interposition of God in favor of his people, and should believe that God frequently sent messengers to them, should hit upon the idea that God, in order to meet this new and uncommon necessity, would send an extraordinary messenger to them, and, (since this priest believed in the necessity of sacrifices), that he should also believe that this messenger would be made a sacrifice for the sins of the nation. Nor would it be remarkable, if such an idea, expressed by a priest, for whom the people had some veneration, or by a supposed prophet, should strike the minds of so superstitious a people as the Jews so favorably, and as being so probable, that the belief should become prevalent, that God had supernaturally conveyed this idea to the mind of the priest, or supposed prophet, and, of course, that it would be realized. If such were the fact, it would then be very natural that, among a people where many were so infatuated as to imagine themselves prophets, there should be many, who should imagine themselves, or claim to be, Messiahs—and if a supposed prophet had predicted the time of the coming of this Messiah, that would be the time when these deluded or dishonest Messiahs would appear, and proclaim their characters, and set up their claims.

Supposing such to have been the cause of the appearance of all the pretended Messiahs that appeared about the time of Jesus, and supposing him to have been one of these deluded or dishonest men, the mystery of the fulfilment (such as it was) of the prediction is then all explained in a natural and probable manner, with the exception of Jesus’s being put to death,—a fact, which cannot be explained by the existence of any general belief that the Messiah was to be cut off—since Jesus was not crucified on account of any intention, on the part of those who crucified him, to make good the prediction. Still, if it be said that his being slain is a proof of the prophesy, and of his being the Messiah, then, the answer is, that others of these pretended Messiahs were also slain—so that by this means also it is impossible to identify the real Messiah.

One of these pretended Messiahs was killed by order of Festus;* another was burnt alive by Vespasian.† One Theudas got a sect after him (probably under the pretence of being the Messiah), and was then slain: also one Judas, (Acts 5—36 and 37). How many others were slain I know not. It is probable however that a considerable number of them were. (See Josephus, Book 2d—Chap. 13).

The prediction then, that the Messiah should be offered as a sacrifice for sin, (if in reality there were any such prediction), would doubtless apply to some, and perhaps to many, others, as well as to Jesus. So that here too there is a complete failure of identity.

But I apprehend that Christians, who may read this book, will, before they have gone [43] through with it, find still another difficulty in the way of their making Jesus answer the description of their predicted Messiah. That difficulty will consist in their inability to prove that Jesus was ever slain at all. I think they will find that the evidence, instead of proving that he was slain, comes much nearer proving directly the reverse, viz: that he was not slain. If such should be the case, their Messiah will then most surely be “cut off.” Should the fact of his death be left, by the evidence, in the least uncertainty, the prediction, as applicable to him, must be considered to have failed; because prophecy, no more than any other supernatural event can be reasonably proved by doubtful evidence. Both the prediction and the fulfilment must be incontestibly established, or no prophecy is shown.

Another prediction, that was to be noticed, is in Daniel 9th,—25 and 26.* It is here stated that the Messiah shall appear in sixty-nine weeks “from the going forth of the commandment to restore and build Jerusalem,” which appears, from the context, to have been about the time of the prediction. Commentators have said that a week here means seven years. Whether they have sufficient authority for saying so, I neither know nor care. Still, if by calling it seven years, instead of seven days, the prediction can be made to look any more nearly like a prophecy, why, then call it seven years. The time for the appearing of the Messiah would then be fixed at the period of four hundred and eighty-three years from the time of the prediction. Did Jesus appear precisely at that time? The little search I have made does not enable me to settle that question, or to say certainly whether any one else ever did. I can only say that I have never known it to be even hinted that he did. He undoubtedly appeared about that time, as did a great number of others; and the reason why all appeared near that time, undoubtedly was, that that was the time when a Messiah was expected.

In the twenty-sixth verse it is said that “after three score and two weeks, Messiah shall be cut off.” Calling the week seven years, in this case as in the other, the true Messiah ought then to have lived four hundred and thirty-four years; (He was to have been a marvellous personage in point of age as well as in other respects)—but Jesus lived to be only about thirty-two or thirty-three years old—leaving the slight deficiency of four hundred years.

There is no way, that I have discovered, by which the believer can get rid of this dilemma. If the week mean but seven days, Jesus did not, in the first place, appear at the proper time for the true Messiah, and he also lived too long; but if we call the week seven years, then he did not live long enough.

But this prediction fails in another particular. Daniel calls “the Messiah, the Prince.” He then says, after having previously spoken of “the commandment to restore and build Jerusalem,” that “the street shall be built again, and the wall even in troublous times.” It is evident from this language and the context, that Messiah was to be a temporal prince, and it is probable that he was to restore and build Jerusalem.

Daniel says also, that “after three score and two weeks, Messiah shall be cut off, and the people of the prince that shall come, shall destroy the City and the sanctuary,” &c. It is evident from this language also, that Messiah was understood to be a temporal prince, and that he was to be succeeded by a foreign prince and an enemy.

Passages also in the New Testament, applied to Jesus by his biographers, show that a temporal prince had been expected. Matthew (2—6) represents one of the old supposed prophets as saying that “out of Bethlehem should come a Governor, that should rule God’s people Israel.” Luke also (1—69, 71) puts into the mouth of Zecharias a prediction, that the nation was to be saved by the Messiah “from their enemies, and from the hand of all them that hated them.” Such things could be spoken only of a temporal ruler or deliverer.

There can be no doubt, indeed all Christians admit, that the Jews expected a temporal prince, (although perhaps one, who was also to be made a spiritual sacrifice, after having liberated the nation from all its temporal dangers and calamities), and the language of Daniel, above quoted, most clearly authorized that expectation. To say that it did not, is to say no less than that since that time words have changed their meaning. If then such were the true meaning of the prediction, Jesus certainly fulfilled it not in the least tittle, and of course was not the Messiah. But if such were not its meaning, the least that can then be said of the prediction, is, that it was made in such deceitful language as to cheat the Jews, and prevent their identifying the true Messiah, whenever he might appear.

Unless the prediction described the Messiah so accurately that he could be unequivocally identified, certainly it was no prophecy. Such was the case here. The very people, to whom it was predicted that he should be sent, and whom he was to redeem and reign over, did not identify him in the person of Jesus. He did not in any important particular, or at least in any greater degree than many others, answer the description; and therefore, even if he were the true Messiah, the Jews did rightly in rejecting him, because it was their duty to be governed by the description.

Furthermore, it is evident, from various circumstances, that Jesus himself originally understood the prediction as did the Jews, and that he did, at one time, expect to have become a temporal prince.

[44]

The particulars of his journey from the mount of Olives to Jerusalem, recorded by Matthew (21—1 to 11), Mark (11), Luke (19—28 to 44) and John (12—12 to 15), show that he at that time expected to have been received, as King of the Jews. Matthew says “a very great multitude” attended him; that they spread even their garments in the way; that they cut down branches of trees and strewed them in the way, and that they cried, “Hosanna to the Son of David. Blessed is he that cometh in the name of the Lord.” Mark says they cried “Blessed be the Kingdom of our father David, that cometh in the name of the Lord.” Luke says they cried “Blessed be the King that cometh in the name of the Lord.” John says that much people, that had come to the feast, when they heard that Jesus was coming to Jerusalem, took branches of palm-trees, and went forth to meet him, and cried “Hosanna, blessed is the King of Israel, that cometh in the name of the Lord.” Is there here room for the slightest reasonable doubt that this multitude believed him to be a temporal prince, specially sent by God to rule over the Jewish nation? There certainly can be none, justified and authorized as such a belief was, in relation to the Messiah, by the predictions of those whom the Jews supposed to be prophets. The question then arises, how came this multitude, at this time, to believe him to be their temporal king? Why, in this way only, viz: he himself must have directly or indirectly given to their minds the impression that he was to be, or it could not have become so general among them—and if he did either create or sanction that impression, he must himself have expected to be a temporal prince, or he intentionally deceived this multitude. By barely consenting to be attended by this great body of men, by these shouts, and these hosannas, and by approaching Jerusalem in this triumphal and kingly manner, he proves that he either expected to have been made a king, or that he practised a deception on the people—for, be it remembered, he could not have been ignorant that these demonstrations of loyalty were offered to him, by his attendants, solely because they thought he was about to become their king. John has removed all doubt that they were so offered. He says (12—16) that even “Jesus’s disciples understood not these things at the first,” that is, at the time, and on the spot, they did not understand that he was to be a spiritual king—and if they did not, there is but one answer to the question, what did they understand him to be? But John adds, in substance, that “when Jesus was glorified,” they then saw what their conduct had meant, and how they had in reality been paying their homage to a spiritual prince under the mistaken apprehension that he was to be an earthly one. The amount of this ridiculous equivocation is, that Jesus took to himself, at this time, the Hosannas which he must have known were intended for another, and trusted to the future, when he should be “glorified,” to set the matter right—or, in other words, that, for the time being, he practised a little pious deception, for the glory of God, and the good of that spiritual kingdom, which he was laboring to establish.

If Christians would save the character of Jesus for honesty and plain dealing, they must disclaim for him this miserable trick that John attributes to him, and must acknowledge that he intended to have become a king. All the accounts of this transaction go to show that such was the fact, that he expected to have been received as king at that time; that he rode that ass’s colt solely because he knew that “it had been written, Behold thy King cometh, sitting on an ass’s colt,” and that he supposed the Jews would therefore consider his being mounted on an ass good evidence of his right to be their king.

It is manifest also that he was disappointed in the reception he met with as he approached Jerusalem. Luke says (19—39) the Pharisees told him to rebuke his followers. This incident shows that the Pharisees would not acknowledge him as king. From this occurrence, and from what follows, it seems hardly possible to doubt, that Jesus then saw that he could not be king. He then, as he naturally would if such were the case, (I here, on account of its importance, repeat substantially what I have said in a former chapter), “falls into a lamentation for the fate of the City—not for the souls of the Jews, as he would have been likely to do, if he had intended to be only a spiritual redeemer, but for the fate of the City itself. He virtually says (Luke 19—42 to 44) that if the Jews had but received him as king, their City would have been preserved; but since they had rejected him, the City would he destroyed. He says that “enemies shall compass it around, shall cast a trench about it, and keep it in on every side, and lay it even with the ground,” &c. This is not the language of a purely spiritual deliverer—it is precisely such language as we might reasonably expect to hear from a man, who wished to make himself the ruler of a people, but who, on being rejected as such, should endeavour to alarm their fears for the safety of their City. Or it is such language as we might reasonably expect to hear from a man so deluded as to imagine that God had specially appointed him to be the deliverer of a people, and the preserver of a City. Such an one, on finding that he would not be accepted as king, would naturally infer, that inasmuch as the deliverer, whom God had appointed to save the city, had been rejected, the city would of course be destroyed.”

In these facts too is to be found the secret of the prediction, that he made soon after, (Mat. 23—37 to 39, and c. 24—Mark 13—Luke 21), respecting the destruction of Jerusalem, and which has been regarded as wonderful evidence of his power of prophecy. How wonderful the evidence is, here clearly appears. The fact, that Jerusalem was afterwards destroyed, has nothing to do with the prediction; because we can see the grounds, and probably the only grounds, on which he formed his opinion that it would be destroyed—grounds sufficient to lead [45] such a man, as I have supposed him to be, to believe that it would be destroyed, or to predict that it would, whether he thought so or not—and we are not to suppose him possessed of the power of prophecy, when his language can be accounted for without such a supposition.

But to return to the inquiry—did Jesus ever attempt to make himself king of the Jews? Another important item of testimony to prove this fact, is, that it was very soon after this triumphal ride from the Mount of Olives, to Jerusalem, that he was apprehended and crucified, and the universal charge against him then was, that he had set himself up to be King of the Jews.

As the remaining evidence of his design to make himself king of the Jews, has probably been sufficiently set forth in the former chapter on the nature and character of Jesus, it need not here be repeated.

Perhaps some persons may think it rather extraordinary that a man like Jesus should have conceived such a design as that of making himself a king. But if such persons look at Josephus (Book 2d—Chap. 13, &c. &c.) and at Newton on the Prophecies, Chap. 19,—they will find that, about the time of Jesus, characters very much like him, were no great novelties among the Jews.

If these views are correct, Jesus did not, although he labored to do so, answer the prediction concerning a Messiah, viz: that he was to be a temporal king—but was simply a deluded or dishonest man, like many others, who set up similar pretensions, and all his talk about being “sent of God,” &c., was but the insane gibberish of a deluded fanatic, or the knavish pretences of an impostor.

But supposing the predicted Messiah to have been intended only as a spiritual prince—even then Jesus does not answer the description. This Messiah was to be “the glory of God’s people Israel.” He was “to save God’s people from their sins.” By “God’s people,” as then understood by the authors of the Bible, were meant the Jews. Jesus also himself virtually predicted that he should redeem the Jews, for he appointed his disciples in number corresponding with the number of the original tribes of Jews, and he also promised to these twelve disciples that they should sit (Christians must say, in heaven, although he at the time probably meant on earth) on twelve thrones, judging the twelve tribes of Israel. He, by these acts, and by his whole conduct, showed that he expected to have redeemed the Jews. But none of these predictions or expectations have been fulfilled. Some Christians believe that the Jews will sometime be converted to Christianity—but where is the foundation for such a belief? Jesus can never answer the description given of the Messiah any better than he did while on earth, and therefore there is no reason why the Jews should ever believe him to have been the Messiah. Even if we suppose that the Jews, at the time when Jesus was alive, were mistaken as to his character, still, if eighteen centuries do not afford a sufficient time for them to discover their mistake, how long a time will probably be necessary?

But, further, if a Messiah were necessary to redeem the Jews, was it not just as important to redeem those Jews who have died during the last eighteen centuries, as to redeem any that may live hereafter?

Since the time of Jesus about sixty generations of Jews have died, without being redeemed, as believers must say; and yet these same believers virtually say, that if the Jews should hereafter be converted to Christianity, Jesus will then fairly answer the description of that Messiah who was to be the Saviour of the Jewish nation. Every generation is a nation of itself, and if Messiah was not to save either of the first sixty nations of Jews that should succeed him, the prophet ought to have been more explicit in designating what nation of Jews he would save.

To say that Jesus would have saved the Jews, if they would but have received him, is no answer to the objection. If a man predict that a certain event will come to pass, he virtually predicts that every necessary intermediate event will also happen. And if a supposed prophet predicted that a Messiah should redeem the Jews, such a prediction was equivalent to one that they would believe on him—and if they did not believe on him—no matter for what reason—the prediction then failed as essentially as if no pretended Messiah had ever offered to save them.

Jesus, then, did not come in the same character, (of a temporal prince) that it was predicted Messiah would come in;—nor has he been received by that nation, who, it was predicted, would receive the Messiah. We therefore have no authority, on the ground of prophecy, for believing that he was the expected Messiah; on the contrary, we have much express authority for believing that he was no Messiah at all.

The remaining prediction relating to a Messiah, which was to be noticed, is, that he was to be of the family of Jesse, and a Son of David. Matthew (1) and Luke (3) have attempted to show that Jesus was a descendant of David—and how have they attempted to show it? Why, solely by pretending to trace the genealogy of Joseph, who, as they both agree, was not his father, but simply became the husband of his mother a short time before the birth of Jesus. They might therefore with the same propriety have traced their own genealogies, in order to prove that Jesus was a descendant of David, as that of Joseph.

This blunder, it would seem, besides proving that there is not the slightest ground for the pretence that Jesus was a descendant of David, must also be considered as having a slight tendency to show how much those two stupid blockheads knew.

[46]

These chroniclers, who, with all good fidelity, did so much for posterity, have also shown, in attempting to trace the genealogy of Joseph, an accuracy, a faithfulness, and a knowledge of the importance of being exact in all matters of revelation, corresponding to the character of their intellects. Luke makes there to have been forty generations between Joseph and David, while Matthew connects the two by a chain of less than thirty, and running through an almost totally different list of names. Even if Joseph had been the acknowledged father of Jesus, a disagreement of this kind would prove that there was no more reason for pretending that Jesus was a descendant of David, than for pretending that he was a descendant of any other Jew, who might be named at random from among those who lived in the times of David.

The necessary falsehood of one or the other, and the probable falsehood of both, of these pretended genealogies, would tend to discredit any but an inspired book.

Let us now examine Jesus’s own predictions, and see how he sustained the character of a prophet.

His only important predictions, that I have discovered, are included in the twenty-fourth chapter of Matthew, and in the last three verses of the preceding chapter. Mark also in his thirteenth, and Luke in his twenty-first chapter, have recorded a part of the same predictions, although not so fully as Matthew.

The only one of his predictions, which has been fulfilled, and which is definite and important enough to have any claims to be noticed, is that which foretels the destruction of the temple.

It is evident from the whole of Matthew’s record of the prediction, (beginning at the 37th verse of the 23d chapter), that Jesus did not intend to convey the idea that the temple was devoted to any particular destruction, distinct from that which was to befal the City at large. He merely speaks of the destruction of the temple, because they happened to be standing by it, and speaking of it—but he only conveys the idea that it would be involved in the general ruin.

I attempted, on a former page, to account for this prediction, in this way, viz: Jesus had read in the Old Testament, that Messiah was to be a temporal prince, who was to be raised up specially by God for the purpose of saving the Jewish nation, perhaps from their sins, but especially from their enemies, and he inferred, as he reasonably might from these premises, that some great temporal danger threatened the nation, and that an extraordinary deliverer was necessary to save them from this danger. He believed himself to be, or dishonestly wished to make others believe him to be, this Messiah, this appointed deliverer and king. When then he found himself rejected by this nation, whom he supposed, or dishonestly pretended, that he was to have saved, he inferred as a matter of course, or threatened as a matter of policy, that the calamity would come upon them. He would also, in such a case, naturally infer, if honest, or threaten, if dishonest, that this calamity should come soon, and therefore he ventured to predict that it would come in the course of one generation.

The last three verses of the twenty-third chapter of Matthew tend strongly to confirm this view. The language of Jesus, as there recorded, evidently means this. “O! Jerusalem, I would have protected thy children as a hen protects her chickens under her wings, but they would not suffer me to do it—now therefore their house (homes, or possibly temple) shall become desolate, for I say unto you they shall not see their deliverer, until they will receive the one that was sent to them by the Lord (to wit: myself”).

If such be a correct view of his thoughts, and a fair interpretation of his language, the question is at an end, for here we see sufficient causes to induce a man like him to make such a prediction—and we are not to suppose him a prophet, if we can account for his language in any other way, because it is unphilosophical to attribute, to supernatural causes, things that might have been naturally produced.

But beside the reasonableness, and the manifest probability of the above supposition, there are one or two other circumstances, that corroborate its truth. One is, that but a short time before this prediction was made, (as appears by the order in which the two events are recorded both by Matthew, Mark and Luke), and immediately after his triumphal ride from the mount of Olives to Jerusalem, and his (unquestionable) rejection as king by the Pharisees and principal men of the Jews, he, apparently in the midst of the disappointment or chagrin occasioned by that rejection, uttered a prediction or threat almost precisely similar to the one we have now been considering, (Luke 19—39 to 44).

Another circumstance tending most satisfactorily to confirm the above view of this matter, is that he could not fix the time when the temple should be destroyed. He only ventured to say that it would be in the course of that generation, but expressly told his disciples (Mark 13—32) that he did not know either the day or the hour when the event would happen.

If he had the power of foreseeing future events, why could he not have known the time of the occurrence, as well as the occurrence itself?

Let us now look at some of his predictions, that were not fulfilled.

He predicted (Mat. 24—3, &c.) that “the end of the world” should come in the course of that generation. But here we are met by the reply, that he did not mean that the end of the world itself would come, or, in other words, that he said what he did not mean, (a practice, to which, according to modern Christians, he was very much addicted). But if he did not mean what he said, what did he mean? “I don’t know,” says the Christian, “but I think he must [47] have meant this, or if he did not, perhaps he meant that—but I am sure he could not have meant the end of the world, because if he had, the end of the world would have surely come.” This logic is so satisfactory, that I might perhaps despair of convincing a believer on this point, were there no external evidence tending to prove that Jesus, in this particular case, meant as he said. It therefore very fortunately happens that such evidence is to be found. For example,—he had told his disciples the same thing before. In Matthew 16—28, he holds to them this solemn and unequivocal language, “verily, I say unto you, there be some standing here, which shall not taste of death, till they see the Son of Man coming in his kingdom.

We have also further evidence that the twelve understood him to mean the end of the world, and what they understood him to mean, Christians cannot deny to be his true meaning. Peter declares (Acts 2—16 and 17) on the day of Pentecost, that the conduct, which the apostles had there exhibited, was that, which it had been predicted by Joel, should happen “in the last days.” Peter also, in his first epistle 4—7, says, “the end of all things is at hand.” Paul also (1 Thess. 4—15 to 17) speaks of Christ’s coming as an event, that was to take place during the lifetime of some of those whom he was addressing. John also (Rev. 1), speaks of it as an event near at hand.

Jesus also said that the time of the destruction of the temple should be the time of his coming, (Mat. 24—3, &c). It is manifest from this circumstance too that he supposed the end of the world, and the destruction of the temple would happen at one and the same time, for he would not, of course, have fixed the time of his coming before the end of the world.

It was natural also that he should suppose the end of the world and the destruction of the temple and city of Jerusalem would happen at the same time, because both the temple and the city were esteemed sacred, and as under the special protection of God, and it was therefore natural for those, who believed thus, to suppose that God would not permit them to be destroyed before the rest of the world.

And here too we find another false prediction, viz: in relation to the time of his coming. He has here left no doubt of his meaning, for he particularly described the manner of his coming—and this manner is just such as we might reasonably suppose a deluded man would picture in his imagination, or an impostor conjure up to impose upon the miserable dupes who were his followers. He said (Mat. 24—30 and 31) that “all the tribes of the earth should see him, coming in the clouds of heaven, with power and great glory.” And, said he, “he shall send his angels with a great sound of a trumpet, and they shall gather together his elect from the four winds, from one end of heaven to the other.”

That his disciples understood this prediction as one that was to be fulfilled literally, is sufficiently proved by Paul’s declaration before referred to, (1 Thess. 4—15 to 17), where he says explicitly that “the Lord himself shall descend from heaven with a shoul, with the voice of the Archangel, and with the trump of God, and the dead in Christ shall rise first: then we, which are alive, and remain, shall be caught up together with them in the clouds, to meet the Lord, in the air.”

His predicting also that he should “gather his elect” at the time of the destruction of the temple, shows that he intended to say that the end of the world would then come. But he has never thus come to gather his elect. and this is the third false prediction.

There is still a fourth. He said (Mat. 24—14) that before these occurrences should happen, “this gospel of the kingdom should be preached in all nations, and to this declaration, as well as to the others, he adds this sweeping clause, that “this generation shall not pass till all these things be fulfilled.” None pretend that in the course of that generation his gospel was preached in all nations. The most that is pretended, is, that some one or other of his apostles preached in all the principal nations with which they were acquainted. But the prediction was that it should be preached in all nations, and if it were not so preached, the prediction failed, let the cause of the system’s not being preached, be what it may. Jesus himself was probably as ignorant of what nations there were in the world as his apostles, for he gave them no directions unless this general one, to preach every where.

But not only the letter of this prediction failed, but the spirit of it also failed even in relation to those countries that were known and visited by the apostles. The great mass of men in those countries, during that generation, had no proper opportunity to hear the doctrines of the apostles, to learn the character of their system, and to judge of its truth. A great pertion probably, so general was the ignorance that prevailed, did not, for the first forty years after the death of Jesus, know any thing of consequence respecting him. The apostles just set foot, as it were, in various countries, but the mere setting foot in a country did not spread a general and full knowledge of Christianity throughout that country—yet it ought so to have done in order to fulfil the spirit of this prediction. Jesus undoubtedly meant, that within the period mentioned, his religion should be made so universally known, that all, who would, might have an opportunity to embrace it, and be saved.

Here then are four several predictions, viz: that the end of the world would come—that he himself would come visibly in the clouds of heaven—that his angels should gather his elect from the four winds,—and, that his gospel should be preached in all the nations of the earth, in the course of the then present generation—all of which predictions proved false nearly eighteen centuries ago.

[48]

There is no room for any quibble on his language, or for pretending that these predictions were carelessly or thoughtlessly made. After having described the events in plain and unambiguous terms, he adds (Mat. 24—34) “verily, I say unto you, this generation shall not pass, till all these things be fulfilled.” He goes still farther, and follows even this declaration with one of the most solemn asseverations that man could utter. Says he (Mat. 24—35) “Heaven and earth shall pass away, but my word shall not pass away.”

This dishonest or infatuated man was predicting events, of the occurrence of which he knew nothing, for time has proved that those various predictions, and that solemn asseveration were falsehoods.

These predictions of Jesus, in relation to his gospel’s being preached throughout the world, his coming, his gathering, his elect, &c., have thus far been considered as having reference to events of a religious character, and as such have been shown to be false. But there is another and more probable interpretation to be given to them, and that is, that they refer to a second attempt, which he then had in contemplation, to make himself king of the Jews.

There are many circumstances tending strongly to confirm this view. One is, that this prediction, that he should come again, was made very soon after he had once attempted to get himself accepted as king of the Jews, and had failed. It is natural that he should have it in his mind to make another effort, if he saw any possibility of his doing it with better prospects of success. And as he was looking forward to a time when the nation would be in danger from their enemies, it is natural that he should suppose that such a season of peril and calamity would be a favorable one for the triumph of his scheme.

A great part of his account (Mat. 24) of the scenes that were to precede his coming, indicate that he expected only a temporary calamity to the Jewish nation, and that the declaration ascribed to him, that the “end of the world” was then to come, must be a misrepresentation.

His prediction that he should come “in the clouds of heaven, with power and great glory,” (if indeed he made such an one—which Deists are not at all bound to believe), is not inconsistent with the supposition that he intended to come as a temporal deliverer; for such a pretension was hardly more extravagant than ought to have been expected from such a man; nor was it too extravagant to gain credit among his disciples; and it was indispensably necessary that he should hold out a very extravagant expectation of some sort in order to keep up the delusion and faith of his ignorant followers until his arrival. Besides, he said that his competitors (whom he called “false Christs”) “should show great signs and wonders,” and it was necessary that he should represent that the pageantry of his coming would be still more marvellous than that of theirs, otherwise he could not have sustained his own reputation, in the eyes of his disciples, for being the true Messiah. He must also promise something corresponding with the dignity of a Messiah, else his disciples would not have cared to wait for him, when they should be in the way of having so many opportunities and inducements, as he expected they would have, within the ranks of other pretended Messiahs. Finally, a man, who, like Jesus, could have the likelihood to assert, without ever putting any thing of that kind to the test of experiment, that he could rebuild the temple of Jerusalem in three days, (John 2—19), or that if he were but to question his father, the Almighty, he should immediately receive from him more than twelve legions of angels to protect his person, (Mat. 26—53), or that his followers, if they had faith could move mountains, and cast them into the sea, (Mark 11—23), would not be [Editor: illegible words] when, as in this case, his circumstances required a large story of some [Editor: illegible words] the foolish dupes, that followed him, and were ready to swallow anything from his lips, that he should sometime make a second appearance among them, and should then come in the clouds of heaven, &c.—especially if he could tell them, as he did in this instance, that it might be many years before the thing would happen.

Another circumstance worthy of especial notice, is, that (Mat. 23—37 to 39) a short time before his prediction in relation to a second coming, after having declared how willingly he would have protected the people of Jerusalem, and how they would not permit him to do it, he proceeded to say that calamity should come upon them, and that “they should not see him thenceforth, until they should say blessed is he that cometh in the name of the Lord.” What is the meaning of such language as this, unless it be that he had resolved to absent himself, until the nation should find itself so involved in danger that they would receive him gladly as their deliverer? Here then is an express intimation that he expected, at a future time, to come and be received as the temporal deliverer of the nation. Now when was this second coming as a temporal deliverer to be, unless it were at the time of the destruction of Jerusalem, as spoken of in the very next chapter, when he should come with power and great glory?

He tells his disciples also (Mat. 24—14) that before the time of his next coming, “this gospel of the kingdom shall be preached in all the world, for a witness unto all nations.” It was expected by the Jews that under the reign of their Messiah, their nation would acquire great temporal splendor, and great importance and high rank among the nations of the earth, and that people from all nations would flock together at Jerusalem. What then did Jesus mean, when he said that “this gospel of the kingdom should be preached in all the world for a witness unto all nations,” before the time of his coming? Did he not mean that his project of an earthly kingdom, or the good news of the earthly kingdom, which he designed to establish should be so proclaimed abroad, that all, who should desire it, might, at the time of his coming to take [49] the throne, assemble and become subjects of his government? The terms used indicate most strikingly that such was his meaning. He does not say merely his gospel, nor does he say his spiritual gospel, nor his system of religion, nor the gospel of a future world; but he says “this gospel of the kingdom.” Besides, we ought to suppose that when he spoke of the kingdom, he alluded to some particular kingdom, with the idea of which his disciples were familiar—and yet, with the idea of what kingdom were they then familiar, except the kingdom of their expected Measiah, which, as they all understood, was to be an earthly one? They had, at that time, as Christians themselves admit, never dreamed of his kingdom being an heavenly one.

He said also (Mat. 21—31) that his angels* “should gather together his elect from the four winds, from one end of heaven to the other.” Now who were these “elect,” that were to be “gathered together,” from the four winds? Why, it is clear that they were living men, and that they were to be gathered together at some place on the earth; for after describing the tribulation that should come upon Jerusalem as being so great, that unless the duration of it should be shortened, no “flesh should be saved,” he adds (22d verse) that “for the elect’s sake those days shall be shortened”—that is, this time of calamity shall be shortened that the elect may not die in consequence of it. If therefore the “elect” were to be exposed to the distress attending the destruction of Jerusalem, and the time of that distress was to he shortened that then might be saved, from death, and if they wore to be thus saved, they of course were living men. It is perfectly absurd to speak of any others, than men living on the earth, being saved from death at the sacking of a city. Now, these “elect,” who were to be saved at the destruction of Jerusalem, were undoubtedly a part of those “elect,” who were to be “gathered together” immediately afterwards, at the time of his coming; and those, that were to be gathered from other nations, or “from the four winds,” were doubtless of the same kind of “elect,” that is, living men.

Considering it settled, therefore, that these elect were living men, and that they were to be gathered together on the earth, what could be the object of Jesus in thus gathering them together, unless it were to compose his kingdom? He, of course, would not wish to carry these living men’s bodies to heaven, and if he wished to carry their souls there, it probably would not be absolutely necessary to “gather them together” for that purpose—much less to gather their living bodies together, as it appears that he intended to do.

That the Jews expected that, under the reign of their Messiah, people would be gathered from all nations to compose his kingdom, the following passages, selected from the many of similar import in the Old Testament, are abundant evidence.

Isaiah 27—13. And it shall come to pass in that day, that the great trumpe shall be blown, and they shall come, which were ready to perish in the land of Assyria, and the outcast in the land of Egypt, and shall worship the Lord in the holy mount at Jerusalem.

Genesis 49—10. The sceptre shall not depart from Judah, nor a lawgiver from between his feet, until Shiloh (Messiah) come; and unto him shall the gathering of the people be.

Isaiah 2—2. And it shall come to pass in the last days, that the mountain of the Lord’s house shall be established in the top of the mountains, and shall be exalted above the hills; and all nations shall flow unto it.

Isaiah 11—10. And in that day there shall be a root of Jesse, which shall stand for an ensign of the people; to it shall the Gentiles seek.

Isaiah 11—12. And He (the Lord) shall set up an ensign for the nations, and shall assemble the outcasts of Israel, and gather together the dispersed of Judah from the four corners of the earth.

Isaiah 55—4 and 5. Behold I have given him for a witness to the people, a leader and commander to the people. Behold, thou shalt call a nation that thou knowest not, and nations that knew not thee shall run unto thee.

Is. 60—10, 11 and 12. And the sons of strangers shall build up thy walls, and their kings shall minister unto thee.

Therefore thy gates shall be open continually; they shall not be shut day nor night; that men may bring unto thee the forces of the Gentiles, and that their kings may be brought. For the nation and kingdom that will not serve thee shall perish; yea, those nations shall be utterly wasted.

If these passages were designed as predictions that Jerusalem was to be built up, as a temporal kingdom, under the reign of the Messiah, by accessions from foreign nations, we have here additional evidence that Jesus, when he predicted that his angels should gather his elect from the four winds, had in his mind the building up of a temporal kingdom; because he evidently had always intended to be guided by, and had always pretended to be destined to fulfil, the predictions which had been made concerning a Messiah.

Another most important fact, and one which appears to me decisive evidence that Jesus, at his second coming, designed but to renew his attempts to make himself king of the Jews, is, that he expected to have competitors, (Mat. 24—23 to 28). It is admitted and asserted by Christians, and proved by history, that these pretended Messiahs, whom Jesus called “false Christs,” were men who attempted to obtain the temporal government of the Jews. Yet [50] these are the men, against whose pretensions Jesus found it necessary, in the strongest manner, to warn his disciples, lest they, mistaking one of these for himself, or for the true Messiah, should espouse the cause of a wrong one. The question here arises, whether a man, who is undisguisedly engaged in endeavoring to acquire temporal power, so nearly resembles a genuine Son of God and spiritual Saviour, that men, who should once have been intimately acquainted with the latter, would not afterwards be able, without difficulty, to distinguish between him and the former? A further question also arises, viz: whether men must not have the same object in pursuit, in order to be such rivals to each other?

Look now, but for a moment, at the monstrous absurdity involved in the interpretation, that must be given to this affair by Christians. They must admit that Jesus, at the very time when he made these predictions in relation to his second coming, must have foreseen his crucifixion, resurrection and ascension; and that he must also have known that these events would open to the understandings of his disciples (what until then they are said never to have understood) the spiritual nature of his kingdom. He must have known that as soon as these events should have happened, all their former misapprehensions as to the nature of his reign would immediately vanish; that all, that they had before misunderstood, would then become to their minds perfectly clear and certain; that they would then know, with the most absolute knowledge, that he never had designed to be, and never would be, an earthly deliverer or king; that Messiah was never to have been an earthly monarch; but that he was the genuine Messiah, and that his kingdom was solely spiritual, and he a purely moral deliverer, redeemer or saviour. Christians must say also that at this time, (that is, at the time of making these predictions), Jesus also knew that in a few years these very disciples would have, in a measure, established a religion, bearing his name. And yet these same Christians must say further, that although he foresaw all these things, he yet was troubled with fears lest these disciples, after they should have come to all this light, after they should be possessed of all this certain knowledge as to his character and the nature of his kingdom, and even after they should have witnessed his resurrection from the dead, and his ascension into heaven, and should have labored years for the establishment of his religion, might yet forget all these things, and be deceived by some one of those vagabond leaders (for such, or little better than such, these false Christs were), of insurgent bands of Jews, into the belief that such leader, and not Jesus, was the Christ; that they might be so hoaxed as to espouse the cause of some one who should be attempting to become a temporal king; might be cheated into the delusion that such an one was the real Messiah instead of himself; and might be duped into the conviction that some one, who should be notoriously aiming at an earthly throne, was the “Sent of God,” who was destined to fulfil all that was expected to be done by their spiritual Saviour, Messiah, Redeemer, &c., in relation to the spiritual redemption of the human race.

When before was such a bundle of absurdities ever offered to the credulity of men?

But if we suppose that Jesus designed only to absent himself for a while, (as he intimated that he intended to do, when he said (Mat. 23—37 to 39) that the people of Jerusalem should not see him again until they would be glad to receive him), and then to come again and renew his attempt to make himself king of the Jews, his conduct in warning his disciples against being enticed, in the mean time, into the train of the other pretended kings, is all perfectly explained; because it is perfectly natural, that under such circumstances, he should have fears that before his return, his followers might suspect, either that he would not return at all, or that he was not the genuine Messiah, and might therefore abandon their hopes of him, and be persuaded to attach themselves to some of his rivals.

CHAPTER V.: The Resurrection.

We come now to the question of the resurrection of Jesus—the last of those alleged supernatural events, the truth of which it is necessary to inquire into.

Two solutions of this occurrence may be given, either of which, I apprehend, will be a sufficient answer to all the evidence tending to prove a real return from death to life.

The first, and perhaps most probable solution is, that the person seen by the disciples was really Jesus, but that he had never been actually dead.

The instances have been numerous, where criminals, who have submitted to all the forms of execution, and have been supposed to have died as really as any others, have afterwards been found alive. The cases are also, as it were, of daily occurrence, where soldiers wounded in battle, or persons sick of some common disease, have apparently died, and have afterwards returned to full life. Now what does the circumstance of their being thus afterwards alive, prove? Why, it proves that the apparent death was only a temporary suspension of animation, and that they have never been really dead. It proves those facts positively, and it proves nothing more. Now will any man say that, in the case of Jesus, a supernatural [51] event is proved by evidence, which, in other cases, proves only a natural one? Or that, in his case, we are to presume an event to have been supernatural, when there have been millions of natural ones precisely like it? If not, then he must admit, that the re-appearance of Jesus, is, of itself, positive proof that he had never been dead.

But perhaps it will be said that the prediction of Jesus before his crucifixion, that, in three days after that event, he should rise from the dead, and the fact that, in three days he was found alive, furnish too extraordinary a coincidence to be attributed to any natural cause. One answer to this objection is, that there is no impossibility of such an event’s taking place naturally, and that any thing, which is naturally possible, is in the highest degree probable, in comparison with an event, that is naturally impossible. Another answer is, that he did not rise in just three days, as he ought to have done to have properly fulfilled such a prediction. He died (or was supposed to die) about three o’clock in the afternoon of Friday, and he left the tomb at least as soon as sometime in the course of Saturday night; whereas he ought to have remained in it until the middle of the afternoon of the next Monday, in order to make the coincidence as remarkable as believers would have it understood to be. The probability is, that the time, during which he was in the tomb, instead of being three days, was even less than half that time. Still another answer to this objection is, that it is not probable that Jesus ever predicted that he should rise from the dead at all. His alleged predictions of this kind all appear to have been made in such manner, as that none of his disciples so understood them, at the time. When the news first came to them that he was alive, it occasioned the greatest surprise among them. They considered the reports as but “idle tales,” (Mark 16—10 to 13. Luke 24—11), “and they believed them not.” They appear to have been wholly unprepared for such an occurrence. John also acknowledges (20—9) that previous to the resurrection, they had not known “the scripture that he must rise from the dead.” But when they find that he is really alive, they brush up their memories, and recal some things, which he had said, and which they now construe to have meant that he should rise again, although they had gathered no such idea from them at the time they were uttered. Is it not sufficiently manifest, from these facts, that all his alleged predictions in relation to his resurrection, either were never made at all, or were made in some such language as that in relation to his rebuilding the temple? a prediction, which John, after the re-appearance of Jesus, sagaciously construed to have referred to “the temple of his body,” instead of the temple in which they stood when the words were spoken, (John 2—19 to 21).

But it may be asked, if he did not mean to predict his death and resurrection, what did he mean, when he said, at the supper, the evening before he was taken, (John 13—33), “yet a little while I am with you. Ye shall seek me, and whither I go, ye cannot come?” and again (John 14—28) when he said “I go away and come again unto you. If ye loved me, ye would rejoice, because I said, I go unto the father?” and again (John 16—16) when he said “a little while and ye shall not see me: and again a little while, and ye shall see me, because I go to the Father?” It may be asked, I say, what he meant by these remarks, if he did not mean that he was going to die, and rise again? And it so happens that I have but this poor answer to give, viz: that if he did not mean that he was going to die and rise again, he probably meant something a little more nearly like what he said: and that is, that he was going to be off for a while and then return again. Nothing would be more natural under the circumstances in which he was then placed—he had found that he was in imminent peril of his life—his enemies were on the watch for him—Judas had already left the room to go and disclose to the Chief Priests (as Jesus supposed) where he was; and he saw that it would not do for him to remain there longer. He therefore determined to abscond, as he had sometimes done before, and return again to his disciples when the danger was over. But as he probably considered it unfavorable to secrecy to have a dozen men accompany him, he must give his disciples some reason why it was necessary for him to go alone—he therefore very judiciously told them “he was going to the Father.”

Now, if Jesus wished to have us believe that he intended, at this time, to predict that he was about to die and rise again on earth, why did he not predict it plainly? Why did he not do it in language that his disciples would have so understood at the time? Why did he leave this prediction to be tortured, conjured or “glorified,” after the events should have happened, out of some remarks, which, when uttered, the disciples understood, and ought to have understood, as having reference to something else? “Undoubtedly for some wise reason,” will be the believer’s wise answer.

I have thought of but one other objection that can be made to the supposition that Jesus had never been dead. That objection rests upon the facts, that, after his re-appearance, he still claimed to be the Messiah. And it may, perhaps, be said, that if he had never been dead, he was dishonest in continuing to make these pretensions. One answer to this objection is, that it is a supposable case, and much evidence has already been exhibited tending to show, that he was a dishonest man; and a second answer is, that if he had always been honest in imagining himself to be what he pretended to be, his return to life would naturally appear as wonderful and miraculous to himself, as to his disciples, and would tend to confirm, rather than weaken, the delusion which had previously occupied his mind.

But there is no lack of evidence tending to prove that Jesus did not die, at the time of his crucifixion. Circumstances enough are related, to render it in a high degree probable that, [52] when he was taken down from the cross, an intelligent person would not even have supposed him dead.

In the first place, it does not appear that he received any mortal wounds. Those in his hands and feet, of course, were not; and as respects the one in his side, we know not that it was a dangerous one. It is certain that his apparent death was caused solely by his protracted torture on the cross, because it took place before his side was pierced. It is also certain that, if he died at all, he did not die so soon as the bystanders supposed, because they thought he was dead before his side was pierced; but when that came to be pierced, his blood was still in circulation. (John 19—33 and 34). Now this suspension on the cross appears to be precisely that kind of torture, that would naturally cause fainting, a suspension of animation, and apparent death, before real death. And it is further evident that Jesus was taken down very soon after the first swooning, or indication of death, for Mark says (15—44) that when Joseph of Arimathea went to Pilate to get permission to take the body into his care, “Pilate marvelled if he were already dead,” but being told by the centurion that he was dead, he thereupon gave Joseph permission to take the body, which he would undoubtedly do immediately. Now the fact, that when Joseph came to him, Pilate marvelled that Jesus could have died so soon, is sufficient evidence that he had but just then given signs of death. There can therefore be no reasonable doubt that he was taken down very soon after the first swooning, that was caused by his suspension on the cross. Would any intelligent man now-a-days suppose that a person, in this situation, and at this time, was dead beyond recovery?

Let now the following facts be considered, 1st, that Pilate marvelled at hearing that Jesus had died so soon; 2d, that when he was supposed to be dead, those, who were crucified with him, were still alive, (John 19—32 and 33); 3d, that in order to insure the death of those who were crucified, it was customary (and therefore probably considered necessary) to break their legs, and that his legs were not broken; 4th, that he was undoubtedly taken down very soon after the first signs of death; 5th, that he probably received no dangerous wounds: and 6th, that he was not dead at the time his side was pierced, (as is proved by the circulation of his blood), although the people had previously considered him dead; let all these facts be considered, I say, and it appears to me that the evidence is abundant to satisfy any intelligent and reasonable man of the probability that Jesus was not at this time dead; that he was in fact in such a condition, as he would have been likely to recover from, without any artificial aid at all.

But he was not left without artificial means of recovery. The blood-letting, caused by the wound in the side, would naturally tend to revive him. John says also (19—38 to 41) that the body was laid in an open tomb, (by Joseph of Arimathea and Nicodemus), confined by nothing but linen clothes, and that, with it, was wrapped, in the linen clothes, a large quantity of strongly scented gums, viz. myrrh and aloes. The odour of these gums would act as a restorative of considerable power. These circumstances sufficiently account for the restoration of this man from such a condition as I think he has satisfactorily been shewn to have been in.

How next did Jesus escape from the tomb? There are two ways, in which this may have been done. In the first place, he himself may have been able to force open the door, and make his escape alone. In the second place, Joseph and Nicodemus, who had taken so much pains in regard to this body, would not be very likely to let one day and two nights pass away without their going to the tomb to ascertain the condition of its inmate, and if they found him recovered, he had then nothing to do but to walk off; and if they found him still insensible, they had nothing to do but to carry him away, and take the necessary measures to restore him.

But here the Christian will say that neither of these things could have been done, because a watch was set there for the express purpose of preventing any thing of that kind. This matter of the watch must therefore be inquired into. And it so happens that there is abundant evidence to shew that, if there were any watch there, they were asleep.

In the first place, the stone was rolled away from the door, and the door was open. If these acts had been done physically by an angel, as Matthew (28—2) says they were, the watch, if awake, would have been as likely to observe them, when being done, as if they had been done by Jesus himself, or by Joseph and Nicodemus; and the single fact, that they did not see these acts done, alone proves that they were asleep.

But even if Jesus was restored to life supernaturally, he of course walked out at the door, for an angel is represented to have been sent from heaven to open the door and let him out. Now, if the watch had been awake, they would have been just as likely to have discovered Jesus when he came out then, as they would if he had recovered naturally, and had then come out alone, or as they would to have detected any one (Joseph and Nicodemus for instance), who should have come and taken the body; but the fact that they did not see him at all when he came out, is alone sufficient evidence that they were asleep.

Again. It was perfectly natural that the watch should sleep. If they saw a corpse safely deposited in a tomb, the door closed, and a stone placed against it, they would not be made very wakeful by any fear, either that the body itself would return to life and make its escape, or that it would be stolen by men, who should know that a watch was near—and it was probably their feeling of security, that made them sleep so soundly that neither the noise of the rolling of the stone, nor the opening of the door, by whomever caused, awaked them.

But Matthew says (28—4) that when Mary came to the sepulchre, an angel had rolled [53] away the stone from the door, and sat upon it, and that “for fear of him the keepers did shake, and became as dead men.”

Few probably will believe that an angel was there, simply because a simple, superstitious and timid woman imagined she saw one—at such a time and place too, where a woman, who believed in angels, would be more likely to see one than at any other. But there is no certainty, I think I may say probability, that she even imagined that she saw one sitting on the stone, for Mark says nothing about her seeing an angel without the sepulchre, but says (16—5) that the woman saw a young man clothed in a long white garment within the sepulchre; and Luke only says (21—3 & 4) that after they had entered into the sepulchre; “two men stood by them in shining garments,” &c. John says nothing about Mary’s seeing an angel at all the first time she went to the sepulchre.

But perhaps the Christian will ask, if there were no angel there, why did these keepers appear “like dead men?” Why, for the very good reason that they lay on the ground asleep, as I have supposed them to have done; and this undoubtedly is as far as they did resemble dead men. But Matthew says these “keepers did shake,” and it may be argued that this could not be if they lay on the ground. To this it may be replied, that neither could they have “become like dead men,” and yet continued standing. The unbeliever has a right to take his choice of these contradictory statements—I therefore take the last, that they “became like dead men,” and then account for it by saying that they were asleep. The time when Mary saw these men in this situation was just at dawn of day, Matthew says; (John says (20—1) that the time of Mary’s being there was “when it was yet dark”), and that is the time when they would naturally be asleep.

Matthew acknowledges that the watch told the Governor that they had been asleep; but he says that this story was a falsehood, and that the soldiers were bribed by the Chief Priests to tell it. But it is pretty certain that Matthew either manufactured this story, so far as it relates to the falsehood and bribery, or that he adopted it without knowing any thing of its truth—for how could he know that they had not slept? or how could this outcast fisherman, or any of his feather, know any thing about the Chief Priests making a bargain with these soldiers? was he, or such fellows as he, let into their counsels?

The simple declaration of these soldiers is sufficient evidence that they were asleep,—for it is not in human nature that men, in their situation, knowing that Jesus had pretended to he the Messiah, the Son of God, &c., should see an angel come and roll away the stone from the door of the sepulchre where he was buried, that they should feel such fear, on account of seeing this angel, as to “shake and become like dead men,” and then that they should all go away and deny all this, and say that they had been asleep.

Still less, if possible, is it in human nature, that the Chief Priests, who knew what Jesus had claimed to be, when they learned that he had risen from the dead, and knew also, as they then of necessity must, that he was a being not to be controlled or baffled in his designs by them, should think of giving “large money” to these soldiers to hire them to say that the body had been stolen. Men never would have dared do such a thing. But supposing them to have dared to do it, what could they expect to gain by such a fraud? or how long could they expect to conceal it? If they knew that Jesus was alive, they could not but have been assured that the fact would be immediately known; and they must also have been aware that as soon as the fact should have become public, the falsehood of the soldiers would be exposed, and their own knavery in the greatest danger of detection. The absurdity of pretending that men would act thus, under such circumstances, is so gross as to be perfectly disgusting.

I here take it for granted that it has been established, by evidence, which Christians must abide by, that, if there were a watch at this tomb, they were asleep. There is still another subject of inquiry, viz. whether there were any watch at all there? The evidence is very strong tending to shew that there was none.

In the first place, nobody but Matthew says any thing about there being any, and his reputation for truth is decidedly too bad to have any thing improbable, which, if true, would make for his cause, believed on the strength of his assertion. He has told too many stories about soldiers being bribed to tell a falsehood, about Chief Priests’ bribing them, about the earth quaking, rocks rending, graves opening, dead rising, about sermons on the mount, &c. &c. to be entitled to any mercy when his statements are to be examined, or any credit when those statements are improbable.

Matthew had a strong inducement to make up a story of this kind, if it were false. It appears (28—13 & 15) that, at the time he wrote, it was the current opinion among the Jews that the body was stolen from the tomb in the night. And he knew that this would be the natural inference of people in general, unless something were told by the friends of Jesus to prove that such could not have been the case. He therefore says that there was a guard there. But even when he has said this, he seems to be aware that he has not relieved his case from all embarrassment, and that it is necessary for him to account, in some way, for the fact, that the circumstance of a guard’s being there did not satisfy the Jews, as well as himself, that the body was not stolen. He could account for this in no way but by charging the soldiers with having told a falsehood, by which the Jews were deceived. He therefore declares that they did tell a falsehood, and in making this declaration, he shews that he himself was a man too dishonest to be trusted, because he certainly could not have known that they [54] did not sleep. On his own showing, therefore, he, without any certain knowledge of the facts in the case, contradicts those who did know them perfectly, and asks us to believe, merely because he says so, that those others were all liars; although he acknowledges that the Jewish nation believed, and continued to believe, that they told the truth. A very modest man truly!

But even when he has accused the soldiers of lying, he has not done all that was necessary to be done. He must, in order to make this story against them believed, show that they had some motive for lying. He therefore makes another charge, which he could not have known to be true, even if it were true, against the Chief Priests, and says that they bribed the soldiers to do it. But even when he has done this, he has not cleared his case of all difficulty in which it is involved. It is necessary that he should also account for the fact that the soldiers were not punished for sleeping, when they had been set as a guard. One falsehood more, if it be but believed, will now make out his case—he therefore represents that the Chief Priests—those wicked Chief Priests, who were full of all manner of iniquity—interfered for these soldiers, according to agreement, and made such representations in their favor (false ones, of course, unless he means to charge the Governor also with corruption) as saved them.

Such is Matthew’s story—a story, that might have been valuable to Christianity, were it not that, like many other stories of the same author, it failed to “keep probability in view.”

The circumstance that neither Mark, Luke nor John make any mention of the guard, is very strong evidence that there was none; because they must almost necessarily have known that the way, in which the Jews accounted for the absence of the body from the tomb, was by supposing it to have been stolen; and, if they had common sense, they must have known that this supposition was a reasonable one, and that therefore, if there were any facts tending to contradict it, it was immensely important to their cause to state them. Yet they have said not one syllable on the subject. Besides, if there had been a guard there, that of itself was an incident so prominent, one would think, that these men would have been likely to have mentioned it, even if they had not seen its particular importance.

Another ground for believing that there was no watch there, is, that there seems to have been no good reason why there should have been one. The man was dead, as they all supposed, and the body had been taken down and given to its friends, and what more was necessary? But Matthew says (27—63 &c.) that the reason assigned by the Chief Priests and Pharisees, who wished to have a guard set, was, that “they remembered that Jesus had said that in three days he should rise again.” Now this story is perfectly ridiculous, because it is evident that even the disciples, not only had never heard him say plainly that in three days he should rise again, but that they had not even heard him say any thing, which they considered equivalent to such a declaration—how supremely absurd then is it to pretend that others had heard such a statement from him. If then the Chief Priests had never heard any thing about his rising again, the motive, which Matthew says induced them to get a watch set, did not exist; and if that part of the story, that relates to the motive be false, the whole is probably false.

There is still another circumstance, which, in my mind, stamps this story of the watch as a fabrication—and that is, that all the preparations for having the watch set, &c., are said to have been made on the sabbath day, (Mat. 27—62 &c.). There seems to have been an attempt to conceal the fact of this being done on that day, by calling it, instead of the sabbath, “the next day that followed the day of preparation.” If the story, instead of running as it does, had run thus, “now, on the sabbath day, the Chief Priests and Pharisees came together unto Pilate” &c. the improbability would have been so glaring as to be dangerous; a man would notice it at the first glance; but “now, the next day that followed the day of preparation, the Chief Priests and Pharisees came together unto Pilate” &c. does not suggest the improbability so readily, and was therefore the better form of expression, in this particular instance, notwithstanding it is awkward and unnatural.

For my part I believe the whole of this story to have been the work of a knave, and probably of a more modern knave than Matthew. Some pious priest (before priests had become as honest as they are now) probably saw what was wanting, and attempted to supply it.

One consideration is here worthy of notice, viz. that if there were no watch, it is not improbable that Jesus went, or was carried, from the tomb even sooner than the second night. It is indeed probable even that when Joseph and Nicodemus (who appear to have been more intelligent men than the friends of Jesus generally) had him taken down from the cross, and asked of Pilate the privilege of taking the body into their care, they believed that he could be restored; that their object in seeking to get the body was to restore it; and that, on the very first night, as soon as the women and the other friends of Jesus, whom it would not do to trust with a secret, had gone, and it had become dark, they took measures to recover him. It is evident that the disciples did not go to the tomb on the sabbath day—so that if the body had been absent on that day, they would not have known it. All they knew about the time of the exit of Jesus from the tomb, was, that very early on the second morning he was gone—but of the length of time he had been gone they knew nothing.

If it be true that the individual, seen by the disciples, was really Jesus, his whole course, after his re-appearance, tends to confirm all I have supposed in relation to his natural restoration. Had he actually risen from the dead, he would undoubtedly have shown himself in [55] the most open manner, so as to have made the fact of his resurrection notorious. But he kept himself timidly concealed from the public eye. He skulked about like a fugitive, who had luckily escaped the clutches of the executioner. He saw none but his friends. Peter says (Acts 10—41) he did not shew himself “to all people,” but (only) to his disciples. His first interview even with them was had in the evening and within closed doors, (John 20—19). Eight days afterwards he met them again, and within closed doors, (John 20—26). Perhaps he saw them a few times more, but he carefully avoided being seen openly. He lurked about among his former adherents for forty days, and at the end of that time he was among the missing.

It is now incumbent upon those, who maintain that he was supernaturally restored to life, to show, by reasonable evidence, what became of him at the end of these forty days. Those, who believe only that animation was naturally restored in him, can easily satisfy themselves as to his fate, by supposing that he was detected and privately slain; that he sought a residence where he might be safe from a second crucifixion; or that he went off with the intention of living concealed for a while, and then returning at a more favorable time to renew his attempt to make himself king of the Jews, and that he died before such an opportunity presented itself. But neither of these suppositions will answer the purposes of those, who maintain that he was supernaturally revived. They must dispose of him in a more dignified manner. Now, on what evidence can they do it? Matthew and John give no intimation that they ever knew what became of him. Nor do any of the eleven ever speak of having witnessed this miraculous “ascent.” Yet Mark and Luke, who are our only authority for believing that he ascended at all, both say (Mark 16—19. Luke 24—50 to 51. Acts 1*) that he did it in presence of his disciples. Now is it to be believed for a moment, that if he had thus ascended into heaven in the presence of his disciples, no one of them would ever have given us his testimony to the fact? or that Matthew and John, who were of the twelve, when they undertook to write biographies of him, would have omitted all allusion to such an event as this, if it had ever happened? The thing is incredible. It would have been better for their case to have omitted the whole of their other accounts of the supposed miracles and wonderful works of Jesus, than to have omitted this single one, for without this, the rest, under the circumstances, are utterly incredible, and good for nothing. There is no excuse for attempting to support a story of this kind on the mere hearsay declarations of Mark and Luke, who could have known nothing of the fact, when the alleged eye-witnesses are silent. The imposition is too gross to deserve the toleration of society for a moment. And that class of men, who dare get their living by palming off this abominable deception upon the understandings of the simple and confiding, have little more excuse for their conduct than that other class of swindlers and cheats, against whom we have laws to protect the community.† The disciples perhaps (as some of their observations indicate) supposed that Jesus had gone to heaven, and well they might suppose so, and for these reasons, viz. that they thought that the proper place for him, and perhaps they remembered that he had once before told them that he was going to the Father, and they knew not now where else he could have gone to. (They did not dream that he could run away). But they never speak of having seen him ascend. Certainly the bare conjectures of these eleven are not to be taken as evidence of his ascension. The believer then is left with a risen Messiah on his hands, whom he has not disposed of, and whom he cannot dispose of, by any reasonable evidence, that can be found in the Bible.

But supposing any one should still say that he will nevertheless continue to believe that Jesus went to heaven, let me ask him whether he supposes that the body of Jesus went there? that human body, which is supposed to have been prepared solely for him to live in while on the earth? Surely he will not pretend that this flesh and blood, this lump of matter, this corporal system went to the land of souls. What then did become of it, unless it walked slily off one day out of the reach of danger?

Besides, what became of the dress he had on? Did he wear that into the world of spirits? But this is not all. There is, in this story, still another absurdity, gross as any preceding one. The testimony of the witnesses is, that he ascended “up” into heaven. Now, which way from the earth is up?

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Where is men’s reason, when they talk of the probability of such stuff as this?

The second solution of this alleged resurrection from the dead, supposes Jesus never to have been seen by his disciples after his crucifixion, but that they were duped by some one who pretended to be Jesus. There are some improbabilities attending this solution, yet none of them, I think, will be found to bear any comparison with that of a man’s returning to life after he had once died.

The testimony tending to prove that he was seen alive, is but the statements of two men, (Mark and Luke) who do not pretend to have seen him, and of three other men, (Matthew, John and Paul), who say that they did see him.

As the return of the dead to life would be a supernatural event, it is so improbable that it appears little less than ridiculous to regard at all any stories told by men, who do not pretend to have seen the man, and who only relate what they heard, probably years afterwards. Few words only will therefore be devoted to the testimony of Mark and Luke. But since Matthew, John and Paul say that they saw him, their testimony will be more particularly examined—although, if the same fact had been related of any person but Jesus, or in any other book than the Bible, it would not be regarded as in the slightest degree probable, whether testified to by two, by ten, or even ten thousand men. If, in the case last supposed, we were not to doubt the honesty of the witnesses, we should still disbelieve their testimony, however, direct and positive it might be—for we should say, and say it too with the most entire confidence, that they must in some way or another have been mistaken, even though the circumstances had been such as that the witnesses should deem it impossible that they could have been, and such that we could not tell how they were. We should believe that they had seen an individual, who so nearly resembled the deceased, that they were in an error as to the identity of the person, or we should say that some delusion had seized on and deceived them.

No possible amount of human testimony could make us believe for a moment, that Mahomet rose from the dead, although the fact were universally believed by his followers. Even if it were said that Mahomet, after his death, was seen alive again and again, daily and hourly for years, by great multitudes who had known him intimately before his death, we could not be made to believe that the individual seen was he. Even if it were said that this individual assumed to be Mahomet; to fill the place, and take the station, which he had occupied; that he conversed about having been dead, and gave a reason for having suffered death; that he had marks about his person that resembled those about the person of Mahomet; still we should not believe; we should say that the man was an impostor; that he had disguised himself so as to resemble Mahomet as nearly as he could, and that he was by this art, deceiving all who credited his pretensions, however numerous and respectable those persons might be.

But this is supposing a much stronger case than that related by the biographers of Jesus. The individual, whom they supposed to be Jesus, did not show himself as such to the multitude, although, if he were really Jesus, and a belief in him as a Saviour were necessary to their future happiness, he would seem to have been bound by the strongest principles of moral obligation to have thus shown himself, that he might have inevitably convinced those who had before been incredulous—and the fact that he did not show himself to the world as the one who had been dead, is very strong evidence of itself that he was not the real Jesus.

This individual was seen by eleven, who had been followers of Jesus, and perhaps also the same individual was seen by three or four other persons, although it is very doubtful whether the person seen by the eleven was the one seen by Mary.

This individual was seen (as John says) by a part of the disciples of Jesus at three different times, and unless he were the one whom Mary and the two going to Emmaus saw, we have hardly a shadow of evidence that he was seen and recognised as Jesus, at any other times, or by any other persons, after the crucifixion. And yet Luke says (Acts 1—3) that Jesus was on the earth forty days after that event. If he himself were on the earth forty days, where was he, and what was he doing during all this time, that he should be seen not at all by the public, and but three times by his own disciples? If he were the genuine Jesus, a tenth part of this time was sufficient for him to have shown himself so publicly to the Jews, and proved his identity so unequivocally, as that the conversion of the whole Jewish nation would have been the probable result. Yet he did not thus exhibit himself, but left about sixty generations of a whole nation, as believers must say, eternally to perish, merely because they were not convinced that he was the Messiah. Even if he were really the Messiah, and did actually exhibit a disregard of men’s happiness so inhuman as he is here represented to have done, a man must have an exceedingly degraded moral taste, or very obtuse moral perceptions, to be capable of feeling any respect for his character.

But let us look more minutely at the evidence.

We are told (Mat. 27—66) that the sepulchre was made sure, the stone placed against the door being sealed, or made fast, and a watch set. The inference, which the believer draws from these facts, is, that no one could have stolen the body without being detected. But the reader will here recollect the evidence, before offered, to prove that, if there were any watch, they were asleep, and also to prove that there was no watch. I shall here take it for granted that that evidence was satisfactory to prove one or the other of those positions. There was then opportunity enough to steal this body; and if it were possible to steal it, the single fact that [57] it was absent, is conclusive proof that, if it were dead, it was carried away; because, as long as we can imagine a natural way in which this body could be removed, we are not to suppose it to have been supernaturally done.

Let us now look at the evidence of Jesus having been seen by Mary. Matthew says (28—9 & 10) that as Mary Magdalen and the other Mary were going from the sepulchre, Jesus met them, and commanded them, saying, “All hail,” (precisely as a man, who, on seeing these women coming from the tomb, should infer that they had been followers of Jesus, and should feel disgusted at the thought of their believing that he would rise again,* would have done, if he had wished to impose on them on account of their superstition); that they then came and held him by the feet and worshipped him, and that he then told them to not be afraid, but to go and tell his brethren to go into Galilee, and that they should see him there. Such is Matthew’s account of the interview with Mary. Mark’s story is somewhat different. He says that the angel, whom he says the women saw in the sepulchre, told them to go and tell the disciples that Jesus had gone into Galilee, and that they should see him there. And all that he says about Mary’s seeing Jesus, is simply this (16—9) that early in the morning on the first day of the week, “he appeared to her”—but says nothing of the place where he appeared to her, or of what he said to her. Luke’s account is still different from either. He says that Mary, and other women, went to the sepulchre, and saw two angels, but does not say a word about Mary’s seeing Jesus at all after his death. John’s account is still very materially different from that of either of the other three. He says (20—1 to 18) that Mary went first to the sepulchre, (making no mention of any other women going with her); that she saw the stone rolled away from the door; that she then returned and told this to Peter and John; that they (Peter and John) then went to the sepulchre, and saw the grave clothes &c. and then went away, (not having seen Jesus); but that after they (Peter and John) had gone, Mary remained behind at the sepulchre weeping; that she then looked into the sepulchre, and saw two angels, in a different position from that represented by Luke, viz. sitting one at the head and the other at the feet where the body had lain; that as she turned herself back from this sight, she saw a man whom she did not know, but whom she supposed to be the gardener; that this supposed gardener asked her why she wept, and whom she sought; that she answered him in a manner that indicated that she had been a believer in Jesus; that this supposed gardener then said to her “Mary;” that at the utterance of this single word she believed the man to be Jesus, (although she had seen him before, and had spoken to him, and he to her, without her knowing him); that she then addressed him in a manner that showed that she thought him to be Jesus; that he then, (probably to impose on her, and see how he could keep up and continue the delusion which he saw her superstition and her then excited imagination had led her into) said to her (assuming to be Jesus) “touch me not! for I am not yet ascended to my father! but go to my brethren, and say unto them I ascend unto my father and your father, to my God and your God.” And here ended the interview.

If John’s story stood alone, and uncontradicted, it contains enough to show that there was no Jesus there. If there were, why did he not show himself to Peter and John, instead of Mary alone? Why did not Mary know him at first? Why did he not suffer her to touch him? How did it happen that he had not as yet been to his father? He had told his disciples, (John 14—28), “I go away, and come again unto you. If ye loved me, ye would rejoice, because I said I go unto my father.” And yet John represents him as telling Mary, after his supposed resurrection, that he had not yet been to his father. Where, then, if he were Jesus, had he been during that time which he had allotted to go to the Father?

Mary’s mistake in supposing this man to be Jesus, is easily accounted for. She was an exceedingly simple and superstitious woman, as is proved by the facts that she supposed Jesus had cast out of her seven devils, (Mark 16—9) and that she imagined she saw angels at the sepulchre. She would naturally, at such a time and place, be in the greatest trepidation of mind, and her imagination would be filled with superstitious fancies. When therefore the man addressed her by her own name, and doubtlessly in a tone a little more emphatic or authoritative than he had before used, it is not at all strange that she should at the moment imagine him to be Jesus, and address him as such. He then, seeing her simplicity and delusion, took advantage of her state of mind to dupe her farther, and told her not to touch him, &c. Here the interview closed before she had had time to recover her self-possession, and discover her mistake.

But the stories of all are so dissimilar, and in some of the most, if not the only, important particulars, so inconsistent with each other, that we cannot determine how much or how little of either may be true, or how much of all may be false: but we may safely infer from either alone, or from all together, that she really saw no Jesus there. We are laid under the stronger necessity of coming to this conclusion by the circumstance that the apostles themselves did not, at the time, believe her story, (Mark 16—10 & 11—Luke 24—10 & 11) but considered it an “idle tale.”

The next time that he is said to have been seen, was when two, who had been his followers, were going to Emmaus. Luke says (24—13 to 31) that Jesus, on the same day that he [58] rose from the dead, fell into the company of these two men, and conversed with them on the way, and yet that during all this time they did not know him. Luke accounts for the fact that they did not know him, by saying that “their eyes were (miraculously) holden that they should not know him.” But to perform a miracle to prevent an individual from being recognised, would be a singular way of making it manifest that that individual had risen from the dead. Be that as it may, this man walked with them, and they told him that they had been believers in Jesus. And furthermore they told him that certain women had, that morning, been to the sepulchre, that the body was missing, and that the women said they had seen angels, who told them that Jesus was alive. The supposed Jesus must have by this time discovered what sort of persons he was talking with. He must have seen that they were strongly inclined to believe that Jesus really was alive, and thus he must have been satisfied that they could easily be imposed upon. He therefore attempts it, and in order to bring their minds into such a state as to be easily duped by any artifice he might choose to adopt, he tries to convince them entirely that Jesus was alive, by attempting to show from their scriptures that “Christ ought to have died,” (and of course to rise again). Before they had reached the place where the two were to stop, he had undoubtedly brought them to believe that the story of the women was true, and that Jesus was really alive. They were then ready to be caught by his trick, which was this, viz. after they had set down to eat, he took bread, “and blessed it, (in the maner of Jesus) and brake, and gave to them.” The result was such as might have been expected, viz. “their eyes were opened, and they knew him.” His conduct was then such as might be expected, viz. “he vanished out of their sight.”

Mark tells the story more briefly. He merely says (16—12 & 13) “and after that, he appeared, in another form, unto two of them, as they walked, and went into the country. And they went and told it unto the residue—neither believed they them.” And well they might not believe them, and well may we not believe them, for if he appeared “in another form,” how could the witnesses themselves know that it was he?

Mark and Luke, who were not of the twelve, tell these stories, but Matthew and John, who were of the twelve, say nothing about the matter—which circumstance is pretty good evidence that they always supposed there was some deception or mistake in it.

Another circumstance, which renders it probable that this individual was deceiving these simple men, is, that it is difficult, if not actually impossible, to conceive of any reason, that he could have had, if he were Jesus, for not wishing to be known by them at the first.

Still another circumstance, of the same strong character, is the language, which he employed to bring them to believe that Jesus was alive. He even went so far as to call them “fools,” (language not very well becoming a Saviour), on account of their backwardness to believe the strange stories they had heard. If he had commended their good sense in not believing them, he would have shown himself a man of more judgment or more honesty. But such language as he used, when it comes from a superior, is often, with simple men, who doubt their own capacity to judge, the most persuasive of all arguments.

Although neither Matthew, Mark nor Luke (in his gospel*) speak of Jesus’s being seen but once by his immediate disciples after his death, yet John says that he was seen by a part of them at three different times. Let us see whether it were so.

I have before said that no number of witnesses, however respectable themselves, and however direct and positive their testimony, would be sufficient to convince us that any man but Jesus ever rose from the dead. Although they were to testify to circumstances, which we should be unable to account for in any other way than by supposing the man to have risen from the dead, still we should believe, we should know, as absolutely as we can know any thing, that there was a mistake or a deception somewhere. In these three cases, related by John, of Jesus’s being seen by his disciples, there is abundant room for mistakes and deception.

Of those numerous pretended Messiahs, who were about in the days of Jesus, it was perfectly natural that some one should seek to avail himself of the notoriety which Jesus had acquired, and of the additional notoriety that might be acquired by assuming his name, and pretending to have risen from the dead. Such an one, knowing the superstitious character of these disciples, would see, that if he could disguise himself so as to resemble in any degree the person of Jesus, he could pass himself off to his disciples as him. This too would be an easy matter for him to accomplish, for they were so superstitious, and so ready and eager to believe any thing marvellous in relation to Jesus, that if they were to see one whose looks or dress did but remind them of him, they could, by persuasion and the power of their imaginations, be brought to believe what they must have so earnestly desired to believe, viz: that the individual was really Jesus. If such were the motives, that governed the one, who, at three different interviews, assumed to be Jesus, he then probably found that it would be impossible longer to keep up the deception, and never attempted it again.

There is a different motive that might have induced some one to attempt this deception. The credulity and ignorance of these simple fishermen must have been well known among the [59] more enlightened part of the community. If some one, after having witnessed the delusion which had led them on before the death of Jesus, should, from a mere waggish curiosity to learn the extent to which they might be still further duped, disguise himself so as to resemble Jesus so far as to recal him to their minds when they should see him, and then, taking advantage of their flurried imaginations, should stoutly declare himself to be Jesus, the deception, with such men, would certainly succeed.

It appears that the individual, who had passed himself off as Jesus with the two going to Emmaus, was the same who afterwards appeared to the disciples, because Mark says (16—14) that he upbraided the eleven for not believing those, who had said that they had seen him. If then the one, who went to Emmaus, was an impostor, the one, whom the eleven saw, was also—and probably his success in duping the two induced him to try the same experiment with the eleven.

Very little disguise would be sufficient for his purpose—because the eleven were well prepared, by the stories of the women, and of the two, to believe that Jesus was alive. The success of the artifice, at the first interview, was aided also by other circumstances. The time chosen was the most favorable for the plot that could have been selected, viz: evening, (John 20—19). The place was favorable, for the doors were shut. The state of their minds, in other respects than the one above mentioned, was favorable, for they had assembled “through fear of the Jews,” and their thoughts were undoubtedly engrossed by the idea of his being alive—and they were undoubtedly querying with each other whether he were alive; and probably nearly all had come to the conclusion that he actually was. In the midst of this state of things the man enters, and says, solemnly, “Peace be unto you,”—the best language he could have chosen to impress their imaginations. Soon he repeats. “Peace be unto you—as my father hath sent me, even so send I you.” Then he “breathed on them! and said receive ye the Holy Ghost.” What means such disgusting mummery, unless it were a studied imposition? Breathing on them! He then closes the interview by one of the most arrant pieces of humbug that was ever attempted, viz: by pretending to confer on them power to forgive sins!* a pretence which probably, at the present day, hardly deceives a single Protestant in all Christendom.

To proceed with the evidence. John says he showed unto them his hands and his side. John would have us believe, from this language, that the disciples plainly saw the scars or wounds; yet he does not say absolutely that they did; and if they only saw his hands and his side, without any scars or wounds, the prevarication would hardly be more palpable than the one which John was convicted of on a preceding page. But even the story, that he offered to show them his scars, is very improbable for several reasons,—such as, in the first place, that it is not likely that it was necessary, for they would generally believe him readily enough without seeing them. In the second place, if he were to show them his hands, he would not be likely to show them his side—the real Jesus would certainly be able to prove his identity, to men so ready to believe as they were, without submitting to so critical an examination. A third reason is, that it was probably so dark that they could not have seen the scars even if there were any—for John says it was in the evening, and that the doors were shut through fear of the Jews. If they were so fearful of being discovered by the Jews, they would not be likely to have light enough in the room to enable them to detect a scar on a man’s hand.

Eight days after this affair, John says (20—26) they were together, probably in the same place, for he says they were “within,” and also that the doors were shut, as before. The individual comes again, and says to them—as before—“Peace be unto you.” He then said to Thomas, “Reach hither thy finger, and behold my hands, and reach hither thy hand, and thrust it into my side, and be not faithless, but believing.” Then, says John, “Thomas answered and said unto him, My Lord, and My God.” Now here is room again for another of John’s equivocations. He does not say that Thomas actually did examine either his hands or his side—he only says that the man proposed that he should do so. Thomas, having been half incredulous and half believing, would not be likely, after such a proposal had been made to him, to do any thing that would imply so much doubt, not only of the reality of the person, but also of the truth of the man’s declaration, as, after the offer had been made to him in a tone of confidence, then to proceed to make the examination in earnest. Probably the man’s apparent willingness to be examined confirmed Thomas in the belief that he was Jesus without any examination—if so, it would have appeared to him indecent irreverence to make the examination, and he would be satisfied without making it, as the others had been.

But supposing he actually did put his hand upon the side, and even suppose (what would not be very probable) that the side was naked, it is hardly possible that there should have been such a scar there as that a person, who expected as a matter of course (as Thomas by this time must have done) to find the scar there, would not be very liable to be deceived in just placing his finger for a moment on a substance so yielding as flesh. Besides, such a spear as those used for piercing the sides of those, who were executed, would undoubtedly be but a small instrument, and would leave but a trifling mark, and not such an one as John speaks of, into which a man might “thrust his hand.”

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Or supposing that Thomas did go so far as to look at, or feel of, the hand of the man, and supposing he actually did discover some appearance of a slight wound there; we must remember that it had been eight days since this man had been seen by the others, and if he were one of the spurious Messiahs, and designed at this time to attach this sect to him, he would naturally think that some new corroborating circumstance would at this time be necessary to keep up the deception which he had practised once, and might slightly wound his hand so as to give it just enough of the desired appearance to impose on the credulity of a man like Thomas, who was nine-tenths imposed on before.

The fact that the man had not been seen for eight days is very strong evidence that some cheat of this kind was practised on Thomas, if it were true that he examined the hand at all—a circumstance, which I entirely disbelieve. This whole story of Thomas’s examination of Jesus is an exceedingly suspicious one. It is such an one as might be most easily manufactured, and one too very necessary to be manufactured, or otherwise supplied, in order to make out any thing of a plausible case in favor of a resurrection.

But even if Thomas did proceed to examine both the hand and the side, and even if he found marks there which satisfied him, still, the fact that he made so critical an examination, would argue most forcibly that the personal appearance of the individual did not well correspond with that of Jesus, and, of course, that the marks were counterfeit.

There is still another objection to the whole testimony of these alleged scars or wounds, and that is, that if a divine being were to be restored to life miraculously, it appears a little probable that he would be restored unblemished, and bearing no mark of man’s violence, instead of thus bringing back his scars or wounds with him—otherwise the work of restoration would seem to have been but half performed. Supposing his legs had been broken on the cross, as the legs of the others were, would he have come back with broken legs?

John says again that this man was seen by a part of the disciples a third time. This appearance must have been thirty days or more after the last, if the individual was seen by the disciples but three times in all, (and we have none but hearsay evidence to show that he was seen more than three times); because Luke says (Acts 1—3) that Jesus was on the earth forty days, and the second time that he was seen was only eight days after he was supposed to have risen, and they could not have known that he was on the earth forty days, unless they saw him at the end of that time.

This individual, whoever he might be, appeared to them standing onthe shore in the morning, after they had been fishing through the night, (John 21—3 and 4). John acknowledges that when they first saw him on the shore, they did not know that the man was Jesus. It is evident also that, even after they had come to him on the shore, they were in doubt as to the identity of the man, for John says (21—12) that “none of his disciples durst ask him, who art thou? knowing that it was the Lord.” Now if they knew that it was Jesus, how happened it that they thought of asking him who he was? yet the fact that they did not dare to ask him, proves that they desired to ask, or thoaght of asking, him; and the fact that they thought of asking, or desired to ask him, proves that they were in doubt. So that here is another case (only one of many as I believe) where John has attempted to make his story stronger than the truth. He probably, in years afterward, on recurring to this incident, and dwelling upon it, brought himself to believe that the man seen was Jesus.

There are some good reasons for believing, that John has colored his whole account of this supposed Jesus much beyond the reality. He was under strong temptation to exaggerate. His object, as was stated before, in writing his narrative, was to prove that Jesus was not a mere man.* It was important to the progress and dignity of the system that he should prove this—and it was important also to his own reputation and influence among the early converts, because he had undoubtedly always held that doctrine to them. But to establish this fact a strong story was necessary. Forty years experience, in the labour of convincing men of the truth of such improbable facts as his system rested on, had taught him that a very plausible and unhesitating story was absolutely necessary to gain credit, and the same experience had taught him how to tell such a story—and furthermore, many of those stories of his, which differ from any told by the others, are of such a kind as could be easily manufactured from very slight circumstances. He was also a man of a low, contemptible and itching ambition, as is proved by the facts that he wished to have the promise of sitting next to Jesus in heaven, (or in his kingdom on earth), (Mark 10—35 to 37), and that he repeatedly pretends, by speaking of himself as “that disciple whom Jesus loved,” to have been his favorite over the others—a fact, which I am not aware that any, but himself, ever discovered. A disposition so low, and so craving of notoriety, as this, is almost always associated with a propensity to practice duplicity and deception—and therefore, even if there were no circumstances, out of his narrative, to oppose his statements, his own character is a sufficient reason why we should not credit a word that he says, which looks improbable.

The testimony of Paul is (1 Cor. 15—5 to 8) that Jesus was once seen by five hundred at once, and that lastly he was seen by himself. I contend that it is not at all probable that even the individual, who pretended to be Jesus, ever made that pretension in the presence of five [61] hundred, and for these reasons among others, viz: first, that we have only Paul’s word for it, and as he has, as the reader will recollect, been already convicted of direct falsehood in one instance,* of probable falsehood in another, and in another of deliberate deception, which is equally falsehood, though accomplished by actions instead of words, his word is good for nothing as evidence of any thing improbable—and, second, that, of the four, who pretend to give the most minute accounts, which have ever been given, of the life, death, supposed resurrection, &c. of Jesus, not one says a word of his having ever been seen by the five hundred, or by any except his eleven disciples and four or five other individuals. John, in particular, has been very minute in his account of the several times when the man was seen by a few persons only, and of the circumstances attending each of those exhibitions, yet he has said not a word of his being seen by the five hundred, although he would most certainly have done so (supposing him to have had common sense) if he had known of any such occurrence—and he, from his situation, must have known of it, if it had happened. Perhaps Paul heard that he was seen by that number, and perhaps he did not—it would however be nothing improbable that he should hear so, even if there were not the slightest truth in the statement.

But supposing that the individual were seen by five hundred persons—we should not then know whether they believed him to be the real Jesus or not. Even Paul does not go so far as to say that they did—and, in the absence of further proof, the probability is altogether that they did not. John says (11—45, 46) that many Jews saw Lazarus raised from the dead, but also virtually says that a part of them believed that Jesus only attempted to practice a cheat upon them. So also some of the Pharisees saw the pretended miracle of restoring the withered hand, but, instead of believing it a miracle, evidently believed it a hoax. This case of the five hundred is very likely to have been another of those, where men saw, but did not believe, and therefore the fact that the individual was seen by five hundred, if such were the fact, would be worth nothing to prove that that individual was Jesus, unless it be shown also that the five hundred recognised him as such.

But Paul says also that he himself once saw him. Now since all the evidence heretofore offered of Paul’s dishonesty, and of his readiness to assert positively any thing that was necessary for his cause, if it had the slightest foundation in hearsay, might go for nothing, in some men’s minds, against the positive declaration of so great an apostle as he, I esteem it fortunate that he has in this instance, by contradicting his own testimony, saved me the necessity of laboring to do it in any other way than by referring to his own acts. I say therefore, that he has proved, by his own conduct, that if (what is not very probable) he ever saw the individual who pretended to be Jesus, he did not at the time believe him to be him, because, if he had, he would of course, have been converted at once—whereas he was not converted until long afterwards, nor until he had been accessary to the murder of Stephen, on account of his preaching in the name of this same Jesus.

Perhaps Paul might have seen an individual, who pretended to be Jesus, and, though he did, not at the time, believe him to be the real one, he might nevertheless, after his conversion, on recurring to the circumstance, have brought himself to a different belief, and then in his reckless manner declare positively that, which he believed, but which was nevertheless untrue. This appears to me the most charitable supposition that the case will admit.

Another circumstance, in addition to those heretofore mentioned, against the fact that Jesus ever rose from the dead, is, that he is not said, in either of the four gospels, to have shown himself, even to his most intimate friends and followers but three times for forty days. Where was he during all this time? Where is it possible that the real Jesus could have kept himself so long concealed?

Another circumstance, and one of the strongest character, against the same fact, is, that he did not show himself to the world. Could any man be so destitute of common sense, as to suppose that reasonable men would believe that a corpse came to life, on the bare assertion of those ignorant fishermen, who had all along been viewed, by the most enlightened part of the community, as deluded fanatics?—and that too, when no good reason could be imagined why, if the man were really alive, he should not exhibit himself personally?

Every motive of duty, and every argument of expediency would seem to have conspired to induce this man to show himself to the world, if he were alive—yet he did not. Is it possible for the ingenuity of man to conceive of a reason why he should remain on the earth forty days, unless it were for the express purpose of exhibiting himself openly, and thus furnishing as much testimony as possible, for the benefit of succeeding generations, of the reality of his resuriection?

But the different accounts given by these narrators are sufficient to show that there were various and disagreeing stories afloat even among those who had been his most immediate and confidential followers, as well respecting his resurrection and ascension, as about his acts before his death. For example, Luke, in his chapter on the resurrection, (the 24th), says nothing of Jesus having but one interview with his disciples, and he says (24—50 & 51) that (manifestly at the close of this first interview) “he led them out as far as to Bethany, and he lifted up his hands, and blessed them. And it came to pass while he blessed them, he was parted from them, and carried up into heaven.” This is a manifest contradiction of his [62] declaration, in the first chapter of Acts, that Jesus was on the earth forty days. Mark also, immediately after detailing the particulars of the first and only interview, of which he speaks as having been had by Jesus with his disciples, says (16—19) “so then, after the Lord had spoken unto them, he was received up into heaven, and set on the right hand of God.” These representations contradict the story of John, who says that he was seen once eight days after the first interview, and again after that time. Again—Matthew does not speak of his being seen by his disciples but once after his death—John says he was seen three times. Further-more Mathew and John say not a word about his going up into heaven, although they most assuredly would have done so, if they had seen him, and Mark and Luke represent them to have seen him. Such differences of testimony show that there were unfounded reports in circulation about him, and believed among those who ought to have known the truth and the whole truth; that these reports differed materially from each other; that therefore no confidence is to be placed in any of them, and that we, of course, are without evidence that can be relied on.

There is another circumstance, which, of itself alone, ought to decide this question, in opposition to all the evidence together that can be found on the other side. It is this, that at the only interview, which Matthew (28—16 & 17) represents this supposed Jesus to have had with the eleven, who had been his immediate and confidential followers, a part of those very eleven doubted whether the individual were he. If any one of these eleven, after having once been an implicit believer in Jesus, after having been reminded of the intimations that Jesus had given that he should die and rise again, after knowing that the body was missing from the sepulchre, after having heard the stories of the women who had been to the sepulchre, and of the two going to Emmaus, after having gone “into a mountain where Jesus had appointed” with the expectation of meeting him, would then, on seeing the individual, doubt, while the rest believed, it is madness, it is the height of superstitious folly, for us to believe, on such testimony, that an individual rose from the dead.

I will mention another circumstance bearing upon this point—one very insignificant and unimportant standing alone, but which, considered in relation to the resurrection of Jesus, must, it appears to me, if men have a spark of reason in judging of this question, put an extinguisher upon the last pretence that he ever rose from the dead.

John says (20—1 to 7) that he himself (“the disciple whom Jesus loved” is the language used) was the first one of the disciples, and undoubtedly the first person, who arrived at the sepulchre after Mary had told them that the stone was rolled away from the door—and he says that “the napkin, which was about his head, was not lying with the linen clothes, but was wrapped together in a place by itself.” Did Jesus, when rising from the dead, leave a part of his grave clothes in one place, and a part in another. Did he stop to wrap up and lay aside this napkin? or was it done by some one, who carried, or assisted in carrying away the body? Which is the most probable? If a chimney sweep were to rise from the dead, he would no more think of wrapping up and laying aside the napkin that had been about his head, than he would of waiting in the tomb for his breakfast. But if the Son of God, or a Saviour of a world, or any such being, when rising from the dead to “bring life and immortality to light,” should do an act of this kind, such an incident would present the most remarkable illustration, that the world ever furnished, of the truth of the adage, that “there is but a step between the sublime and the ridiculous.”

Finally, the fact that no one of the eleven ever knew what became of this individual, whom they supposed to be Jesus, is invincible evidence that he did not rise from the dead. ’Tis not a question to be argued, whether a Son of God, or a man who had risen from the dead, would have served his friends and followers the trick, which this man did the disciples, of going off and leaving them forever, without letting them know where he had gone.

Endnotes

*

This promise was probably understood, at the time it was made, as referring to temporal thrones; but after the departure of Jesus, was applied by the apostles to heavenly ones.

*

See his ridiculous boast (2 Cor. 12—1 to 5) that he was the man who had been caught up into the third heaven, (query—how many heavens are there in all?) and had there heard certain sounds, which he declined repeating, on the pretence that it would be unlawful for him to do so. This journey to paradise, therefore, was labor lost, unless the story of it, united with his declarations (2 Cor. 11—5—2 Cor. 12—11) that “he was not a whit behind the very chiefest of the Apostles,” and his other boastful pretences, of which the last named chapters are full, served some purpose in gaining him credit among those, whose backwardness to regard him, he virtually says, (2 Cor. 12—11) “compelled him” to brag a little; although, modest man! he would not for the world be thought “to glory of himself, but in his infirmitics.” (2 Cor. 12—5.)

†

Perhaps some explanation may be given to this declaration of Paul; I here state only what appears on the face of the matter.

‡

2d. Cor. 11—8. “I robbed other churches, taking wages of them, to do you service.” It may well be doubted, one would think, whether the last clause of this verse gives his real reason for an act, which he seems to admit, in the first clause, to be unjust.

*

I trust the time is not far distant, when the moral courage of the more intelligent and independent portion of the community will be sufficiently aroused to expose, without reserve, the dishonest and cowardly practices of these men; when their attempts to dissuade weak and timid minds from the examination of evidence; to keep the reasons and arguments of their opponents out of sight; and to so fill the minds of their dupes with vulgar and superstitious fears and prejudices as to deprive them of all mental liberty on this subject, will receive their merited condemnation; and when the efforts, which, instead of meeting the arguments of men, they are now so zealously making, by Sabbath-schools and otherwise, to forestal the judgments and permanently rivet the faith of the young, by impressing and deluding their imaginations, before they are capable of reasoning, will be regarded as a nefarious artifice for perpetuating their own influence by depriving the human mind of its rights, and truth and reason of their power.

*

Some may perhaps believe that this verse was not intended to convey such a meaning as I have at tributed to it—but can such persons tell us what other definite idea can be gathered from it?

†

We have evidence that there actually were in circulation after his death, and in credit among his followers,a great variety of stories about miraculous occurrences of the most ludicrous character imaginable, though hardly more ludicrous than some related in the four gospels. That evidence is furnished by those books, (now published under the title of the “Apocryphal New Testament”) which were discarded as not being canonical, or at least as doubtful, by the Council of Nice, about three centuries after Christ. As they are now admitted by Christians to be false, on that admission they prove all I wish to prove by them, viz. that after the death of Jesus, there were many stories in circulation respecting him, which rested on no authority but the tongue of rumor, and we are to judge whether these narratives, which are now esteemed by Christians, canonical—considering how many years after the death of Jesus they were written—are not as likely to have been gathered in part from simple rumor, as those others.

*

For a more full account of these Messiahs, see Rev. Thomas Newton’s Dissertations on the Prophecies, Chap. 19, also Josephus, Book 2d. Chap. 13. Several of them were finally put to death. Some of them succeeded in gaining a much larger number of followers than Jesus, in his lifetime, ever had.

*

Some of the expressions, employed by the writers in relating this affair, appear to have been so unreasonably “glorified,” that in order to put together a story which should appear natural and unstrained throughout, I have selected the most natural expressions from each of the accounts, instead of quoting the whole of any single one.

*

Both Matthew and John are supposed to have written their narratives more than thirty years after the crucifixion. See Rees’ Cyclopædia.

*

I might here safely leave the question of Jesus’s miracles, without any further argument, were I so disposed; because no thinking man would for a moment believe them to have been real ones, unless he could see, or should fancy he could see, that it was important that they should be wrought for the purpose of proving a Revelation—yet, as has been shown, the purpose, for which they are said to have been wrought, cannot logically be taken at all into the account, when judging of their reality.

*

Such facts as the above would furnish a complete answer to all the arguments—founded on the importance of the alleged purpose of establishing in men’s minds a belief in a revelation—(supposing such arguments to be admissible), that Christians have ever urged in favor of the probability and propriety of miracles; because the very testimony (the Bible), relied on to prove that miracles were employed for that purpose, declares also, explicitly and unequivocally, that, at the same time, and among the same people, other miracles, equally real, and equally wonderful as far as men’s senses could discover, were performed, which are not pretended to have any connexion with a revelation, or any other important design. In order, therefore, to support the Bible history of these events, there is just as strong a necessity for arguing in support of the probability and propriety of God’s giving miraculous power to some individuals for no discoverable purpose at all, as in favor of his giving it to others to enable them to convince men of the truth of a revolution, because, according to the Bible, he gave it in the former case as certainly as in the latter.

If the Bible be true, it is as certain also that God gave miraculous power to a pool of water, as it is that he gave it to Jesus or any of his disciples, (John 5—4.)

*

See Lempriere’s Biographical Dictionary.

†

See Newton on the Prophecies Chap. 18.

‡

See Lempriere’s Biographical Dictionary, also Newton on the Prophecies, Chap. 18.

*

The pretended discoverer of animal magnetism.

*

In further support of the reasonableness of this explanation, I quote the authority of Dr. Combe, who says, in his work on Physiology, that “so powerful, indeed, is the nervous stimulus, that examples have occurred of strong mental emotions having instantaneously given life and vigor to paralytic limbs.” This extract may be found in No. 71, Harpors’ Family Library, page 112.

*

In confirmation of the truth of this explanation, I quote from Carne, a recent Christian traveller in Palestine, who says, in describing this lake, that “the boats used on it are, in some seasons of the year, much exposed from the sudden squalls of wind, which issue from between the mountains.”

I have taken some pains to procure “Carne’s Travels in the East,” (or Letters from the East,) so as to be able to refer the reader to the page where this fact is stated; but the book is a rare one, and I have not found it. I can therefore only refer to an extract published in the American Traveller (Boston) Oct. 29, 1833, Article, Lake Tiberias.

†

Mark 11—21. Master, behold the fig-tree, which thou cursedst is withered away.

*

What evidence is there of the deliberate villainy of Mahomet, Matthias or Joe Smith, that can compare with this evidence of similar conduct on the part of Jesus?

Or what stronger evidence of his knavery can be wanted than his pretence of calming the tempest?

*

Luke says (2—52) that as Jesus grew up to manhood, he “increased in favor with God and man.” Now this affair took place in “Nazareth, where he had been brought up,” (Luke 4—16). He seems therefore never to have got into very high “favor” with the people of his own village; for had he done so, they would not have been likely, on this occasion, to have treated him quite so shabbily.

*

A rite grosser even than that of drinking from the skull bone of Odin, and more appropriate to be observed by cannibals than civilized men.

*

If the reader wish any further confirmation that this view of the miracles of Jesus is correct, let him read the “Apocryphal New Testament,” from which he will at least learn what kind of miracles it was common for the early Christians to believe in, and will thus be enabled to judge whether such works, as I have supposed the pretended miracles of Jesus to have been, would not have been likely, at that time, and among so suporstitious a people, to have passed for true miracles.

*

He pretended to them that the Almighty wrote the ten commandments “with his own finger,” on the two tables of stone, and gave them to him—although he acknowledges that he was absent in the mountain forty days—a time sufficient for him to have written them himself, and a little longer than would probably have been necessary for the Almighty, (Deut. 9—9 to 11).

He also, when there were thunder and lightning and a cloud (and nothing more, as any body may satisfy himself by reading the verses hereafter referred to) on Mount Horeb, told the Israelites that the Lord was speaking to them, out of the fire. He also stood between them and the mountain, and pretended to interpret the thunder, and to give to them the meaning of the Lord in their own language, (Deut. 4—11 and 12—also 5—4, 5, 22 to 28).

*

See Newton on the Prophecies, Chap. 19.

†

Same.

*

Connected with this prediction about a Messiah is one circumstance, that shows that Daniel knew nothing of what he was talking about; and that is, that when predicting that Jerusalem should sometime be destroyed, he says “the end thereof shall be with a flood”—whereas (unluckily for inspiration) such happened not to be the fact.

*

Such angels probably as he referred to when he said he could call upon his father, and he would give him more than twelve legions of angels to protect him, (Mat. 26—53).

*

Luke is said by Christians to have written the Acts.

†

Yet it is not that they thus get men’s money, that I would oppose the Clergy; although that would be a sufficient reason for opposing them, if there were not other reasons stronger. The waste of money, immense though it be, I considered as among the slightest of the evils attending the existence and support of Christianity. It is because the Clergy, by means of their infamous doctrines, appal, delude and enslave the imaginations of the young; deprive men of their mental liberty, of their judgment, reason and candor; fill their minds with prejudice, and their imaginations with vulgar and disgusting superstitions; rob truth and reason of their power, and resist totis viribus their progress whenever they conflict with the vile delusion and imposture, which it is their interest to advocate; and because they thus make men dupes, fools, slaves, cowards, bigots and fanatics, that I would oppose and expose them and their system. It is, in short, because Christianity is nothing but a miserable and disgusting superstition; because its pretended evidences are false, many of them grossly and glaringly false; because the Clergy seem to understand all this, and yet have the audacity to impose upon men by pretending the contrary, and to degrade and govern them by thus imposing upon them, that I would awaken opposition to the Clergy and Christianity.

*

I here admit, for the sake of the argument, that Jesus did predict that he should rise again, and that this fact was known abroad, as Matthew (27—63) represents it to have been.

*

In the Acts (1st c.), (if he were the author of the Acts as he is generally supposed to have been) he represents that Jesus was seen many times—but he was not one of the twelve, and what he heard is good for nothing as testimony.

*

John 20—23. “Whosoever sins ye remit, they are remitted unto them, and whosoever sins ye retain they are retained.

*

See Lempriere’s Bing. Dict.

*

See Chapter 1st, on the Spread of Christianity.

T.4 Supreme Court of United States, January Term, 1839. Spooner vs. M'Connell, et al. (1839).↩

Title

[4.] Supreme Court of United States, January Term, 1839. Spooner vs. M'Connell, et al. (n.p., 1839).

- also online Shorter Works, vol. 1: </titles/2290#lf1531-01_head_013>

Text

SUPREME COURT OF UNITED STATES, January Term, 1839. }

SPOONER vs. M’CONNELL, et, al.

COPY OF BILL AND INJUNCTION.

To the Honorable Judges of the Circuit Court of the United States, within and for the Seventh Circuit, and District of Ohio, sitting in Chancery:—

Your orator, Lysander Spooner, a citizen and resident of the State of Massachusetts, represents that he is the proprietor of the following described tracts or parcels of land, to wit:—A part of the northeast fractional quarter of section seven, township five, range nine east, upon the south side of the Maumee river, and bounding thereon, consisting of eighty acres more or less;—also of island numbered two in said river, opposite the tract above mentioned, containing two and four-fifths acres more or less; both of the said tracts being at the Head of the Rapids above the Maumee bay, and on what are usually called the Grand Rapids of said river, in the county of Wood and state of Ohio.

He further represents that from partial personal observation, and from the information of credible persons, he verily believes that said river is navigable, during a large part of the year, from the said Head of the Rapids above mentioned, upwards continuously and without interruption for a distance of about one hundred and twenty miles to Fort Wayne in the state of Indiana—that within the past year there has been a steamboat plying on said river throughout the whole distance referred to—that a number of keel boats carrying from fifteen to twenty-five tons burden have been in like manner employed—that said river was open and navigable as early as the 15th day of March in the spring of eighteen hundred and thirty-seven; and your orator is informed and believes that during the year 1837 the navigation of that part of the river referred to, was not prevented, or very materially obstructed by low water, for a period of more than eight or ten [2] weeks—that the river between the Head of the Rapids and Fort Wayne is, and from the earliest settlement of the country has been navigated as the common and principal thoroughfare for the conveyance of produce, merchandize and other articles of transportation between the points mentioned.

Said Rapids extend down the river from the said Head of the Rapids towards the Maumee bay, a distance of about sixteen miles, in falls at short intervals;—around these Rapids is a portage. From the foot of said Rapids to the confluence of said stream with the Maumee bay (a distance of about twelve miles) the navigation is uninterrupted, and that part of the river is navigated by steam boats and other lake vessels of large size.

The said river is one of the streams of the region formerly designated as “The North Western territory.” It leads into the St. Lawrence river through Lake Erie, and is embraced by the ordinance of the congress of the confederation, passed the 13th of July, seventeen hundred and eighty-seven, entitled “An ordinance for the government of the territory of the United States north-west of the river Ohio.”

Your orator further represents that that ordinance provides, among other things, that certain articles therein specified should be considered “as articles of compact between the original states and the people and states in the said territory, and forever remain unalterable, unless by common consent.” One of those articles contains the following provision, viz:—“The navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways and forever free, as well to the inhabitants of the said territory, as to the citizens of the United States, and those of any other states that may be admitted into the confederacy, without any tax, impost or duty therefor.”

The right of unobstructed free navigation of the navigable streams of said territory, was again recognized and affirmed by an act of the congress of the United States, entitled “An act providing for the sales of the lands of the United States in the territory northwest of the river Ohio, and above the mouth of Kentucky river,” passed May 18, 1796; and the bed of said river, within the distance before mentioned, between the said Head of the Rapids and Fort Wayne, it is believed has never been included in any survey or sale, by the United States, of the lands bounding upon the same.

Your orator further represents that the legislature of Ohio has passed an act entitled “An act to authorize the locating and establishing of so much of the line of the Wabash and Erie canal as lies within the state of Ohio, and to authorize the selection, location, [3] sale and application of the proceeds of the sales of its lands,” bearing date March 3d, 1834, whereby, and by other acts of legislation on her part, it is provided that a navigable canal, according to the title of said act, shall be constructed. A canal has accordingly been located from the state line separating the state of Ohio from Indiana, to the mouth of the Maumee river, and the work upon the same is now in active progress.

Your orator further represents, that Alexander M’Connell, Timothy G. Bates, Leander Ransom, William Wall, John Harris, and Rodolphus Dickinson, a body entitled, “The Board of Public Works,” created by the legislature of Ohio, are charged with the management and execution of said work; and, under pretence of a right in the state of Ohio to control, and at her discretion obstruct the navigable rivers within her limits, claim to be authorized by her laws to erect any dam or dams upon said Maumee river, which they may deem necessary or expedient for the purposes of the canal aforesaid.

Your orator further represents, that the individuals above named, pretend that it is necessary or expedient to construct one or more dams upon said river, between the said Head of the Rapids and the said state line between Ohio and Indiana, for the purpose of supplying a section of said canal with water, and that they threaten and declare their intention to do so. And that, if not arrested by the action of this court, he doubts not they will speedily cause one or more such structures to be commenced, on the part of the stream referred to, and to be completed as early as conveniently practicable.

Your orator further represents, that he purchased the property above mentioned, situated at the head of the Rapids, at a very large price, with a view to the benefit of the navigation of that part of said river extending from the said Head of the Rapids to Fort Wayne, and especially because it is situated at the lower terminus thereof—which benefits he claims are secured to him by the ordinance and law of congress before mentioned, and the consitution of the United States.

There is an extensive and valuable water power upon your orator’s said property, afforded by the Rapids of said river, which commence at that point. Two extensive saw mills, and one flouring mill have already been erected thereon—and it was the expectation of this complainant, that many others would speedily be erected—and he believes they still would be, but for the anticipated effects of said dam or dams, which are threatened to be located above.

Your orator further represents, that said dam or dams are intended to be erected some miles above his property; and that [4] the effect thereof would be to greatly obstruct, if not entirely cut off and destroy, the navigation of the river, throughout the entire distance between the said Head of the Rapids and Fort Wayne. The value of your orator’s property would be thereby greatly lessened, if not wholly destroyed; and his right, as a citizen of the United States, to navigate said river, without obstruction, hindrance, or the payment of toll, would be violated, and rendered of little or no practical value whatever.

In every aspect of the case, he avers and insists that said dam or dams across said navigable river would be a public nuisance; and that as such their erection should be arrested by the interposition of this honorable court.

He therefore prays that the said Alexander M’Connell, Leander Ransom, William Wall, Timothy G. Bates, John Harris, and Rodolphus Dickinson, both in their private capacity and official character, may be made parties defendant to this bill—and may be compelled, under their several and respective corporal oaths, to make full, true, and perfect answers to all the matters and things herein set forth as fully as if the same was here again repeated, and they in relation thereto particularly interrogated.

And your orator prays that a writ of injunction may be immediately issued, directed to said defendants, enjoining them and their successors in office, and all other persons to desist from placing any dam or dams, or other obstruction whatever to the navigation thereof, in said river, at any point between said Head of the Rapids and the state line between the states of Ohio and Indiana; and that upon the final hearing of this cause, said injunction may be made perpetual, and that your orator may have such other and further relief in the premises as to your honors may seem meet, and equity and good conscience may require.

SWAYNE & BROWN,

Solicitors for Complainant.

(A Copy.)

John Mclean

Mclean, John

February 5, 1838

Washington City.

I allow an injunction in this case, unless cause be shewn against it by the third day of the next circuit court at Columbus.

Let a copy of the above be served on defendants.

JOHN McLEAN,

Justice Sup. Court U. States, and of the 7th Circuit.

February 5, 1838

.

[5]

COMPLAINANT’S ARGUMENT.

The complainant supposes that the decision of the Supreme Court of the United States, in the case of Gibbons and Ogden, is of itself sufficient to sustain the injunction; but, as the ordinance of 1787—the laws re-enacting that ordinance—the law of 18th May, 1796, and the several laws in addition thereto, respecting the lands and navigable waters of the N. W. territory, furnish other and independent grounds, which he also considers sufficient, he will examine these latter first, and that decision afterward.

On the 13th July, 1787, fifteen years before Ohio became a state, and while the land in the whole Northwestern territory still belonged almost entirely to the United States, the congress of the confederation passed an ordinance, [See journal of old congress for 13th July, 1787—also Story’s Laws, vol. 3, p. 2073,] entitled “An Ordinance for the government of the territory of the United States northwest of the river Ohio.” The object of that ordinance was declared to be, among other things, “to provide for the establishment of states,” (to be formed out of said territory) “and permanent government therein, and for the admission to a share in the federal councils, on an equal footing with the original states, at as early periods as may be consistent with the general interest.” And in order to carry out these, and the other purposes intended by said ordinance, it was “ordained and declared by the authority aforesaid,” (that is, the authority of the congress of the confederation,) that certain “articles” expressed in the ordinance, should “be considered as articles of compact between the original states, and the people and states in the said territory, and forever remain unalterable, unless by common consent.” The fourth of these articles contains this provision, to wit:—

“The navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways, and forever free, as well to the inhabitants of the said territory, as to the citizens of the United States, and those of any [6] other states that may be admitted into the confederacy, without any tax, impost or duty therefor.”

Is this ordinance valid? The congress of the Confederation; at the time of passing this ordinance, were unquestionably both the proprietors of the territory, and the supreme legislative power over it—and as such had a right to exercise such government over it as to them seemed best, provided it were not inconsistent with the articles of confederation. We are not aware that any inconsistency with these articles is pretended to be found in the ordinance—and the fact that it was passed [See journal of old congress of 13th July, 1787] with but a single dissenting vote, is pretty good evidence that there is no such inconsistency. The ordinance, therefore, so far as it was in the character of a legislative enactment, was unquestionably valid so long as the confederation lasted. Did it continue its validity under the constitution of the United States? The congress of the United States, under the constitution, succeeded to all the rights of territory and of jurisdiction over it, which had been possessed and exercised by the congress of the Confederation—and the laws of the Confederation, so far as they were not inconsistent with the new constitution, would of course continue in force until repealed. The adoption of the constitution worked a change, of form merely, in the organization of the sovereign power over this territory—it did not annihilate any rights of property or jurisdiction that belonged to the United States, or abrogate any existing laws, unless in cases where such rights, jurisdiction, or laws were inconsistent with the principles or provisions of the new form of government. A change in the organization of the supreme power in a country, does not, of itself, change or repeal existing laws, any further than those laws are repugnant to the new form of government. The ordinance, therefore, would have continued valid under the new constitution, so far as it was consistent with that constitution, even without any re-enactment.

But, in point of fact, the ordinance was re-enacted at the first session of congress under the constitution. An act entitled “An act to provide for the government of the territory northwest of the river Ohio,” was passed August 7, 1789, (Story’s Laws, vol. 1, page 32)—the preamble of which runs thus—“Whereas, in order that the ordinance of the United States in congress assembled, for the government of the territory northwest of the river Ohio, may continue to have full effect, it is requisite that certain provisions should be made, so as to adapt the same to the present constitution of the United States: Be it enacted,” &c. Then follow certain provisions for the appointment of the officers of said territory by the president and senate, instead of the [7] congress, as had before been the law. In this preamble the object of the act is expressly declared to be, that “the ordinance may continue to have full effect.” This form of enactment we suppose to be as effectual in law, as though the act had contained a clause in this form, “Be it enacted that the ordinance shall continue to have full effect.” The intention to continue it in force is clearly expressed, and that we suppose is sufficient for all legal purposes.

In addition to this re-enactment in 1789, congress has also, by subsequent recognitions, in at least three several instances, virtually re-asserted the validity of this ordinance, to wit:—In the act passed April 30th, 1802, (Story’s Laws, vol. 2, page 870, sec. 5,) authorizing the people of the territory, which is now Ohio, to form a constitution, preparatory to their admission into the Union; in the act passed April 19th, 1816, (Story’s Laws, vol. 3, p. 1567,) authorizing the people of what is now Indiana to form a constitution; and in the act passed April 18th, 1818, (Story’s Laws, vol. 3, p. 1675,) authorizing the people of what is now Illinois to do the same. In each of these three several acts, it is provided that the state constitutions, about to be formed, shall not be “repugnant” to the ordinance. Congress, therefore, on its part, has evidently entertained no doubt of the validity of the ordinance, and has repeatedly evinced the intention of maintaining it in force.

Let us now look at the conduct of the states themselves, that have been formed out of this territory, and see how far they have assented to the validity of this ordinance.

The representatives of the people of Ohio assembled in convention by virtue of the authority granted by the law of April 30th, 1802, before mentioned, which contained the provision that the state constitution to be formed should not be repugnant to the ordinance—(See Preamble to Ohio Constitution, Chase’s Ohio Statutes, vol. 1, page 75.) By assembling under authority of that law, they virtually admitted the validity of that provision. Here then is one recognition. They then proceeded to adopt a constitution, the preamble of which they made to read thus:—“We, the people of the eastern division of the territory of the United States, northwest of the river Ohio, having the right of admission into the general government, as a member of the union, consistent with the constitution of the United States, the ordinance of Congress of one thousand seven hundred and eighty-seven, and of the law of congress,” (of April 30, 1802, before mentioned,) &c. Here again they refer to the ordinance in a manner that virtually recognizes its validity. The people of Ohio, therefore, in their sovereign capacity, have twice virtually assented to the authority [8] of this ordinance. The people of Indiana and Illinois also both did the same, in a manner substantially similar, at the time they adopted their constitutions.

In addition to all these legislative recognitions of the validity of this ordinance, we have a judicial one. The Supreme Court of Ohio, (in the case of Hogg et al. vs. Zanesville Canal and Manufacturing company, 5 Hammond 410,) after quoting from the ordinance the clause before cited in relation to “the navigable waters,” say, (page 416,) “This portion of the ordinance of 1787 is as much obligatory upon the state of Ohio as our own constitution—in truth, it is more so—for the constitution may be altered by the people of the state, while this (the ordinance) cannot be altered without the assent both of the people of the state, and of the United States through their representatives.”

Thus the state of Ohio, by her highest judicial tribunal, as well as in her highest legislative capacity, has recognized the validity of this ordinance. And it surely will not be pretended, in the face of this accumulation of legislative and judicial evidence, coming from both the general and state governments, that this ordinance is not operative, at least within the state of Ohio, unless it be on the ground of some inconsistency with the constitution of the United States.

The next question, then, that arises in this stage of the argument, is, whether the ordinance be inconsistent with the constitution of the United States? And here, for the sake of the argument, we might admit that some parts of it are inconsistent with the constitution. The ordinance purports to establish fundamental rules on a variety of subjects, and a provision of the ordinance in relation to one particular subject may be unconstitutional and void, while the provisions pertaining to all the other subjects may be constitutional and valid. If, therefore, we were to allow that certain portions of the ordinance were void, we might still contend, as we do, that the clause in regard to “navigable waters” is consistent with the constitution, and therefore valid. Still, we do not admit, in reality, that any portion is unconstitutional; and although it may perhaps be necessary for our cause, only to shew the constitutionality of the single clause, in regard to “navigable waters,” yet, in order to sustain the general character and authority of the ordinance, we will briefly advert to a few of its other provisions.

The objects of the ordinance, we have said, were various. The provisions contained in the first part, and comprising about one half of the instrument, are of a temporary character, their object being merely the establishment of a territorial government to continue until the territory should be formed into states. But the remainder of the ordinance was declared to be of permanent [9] force and operation, even so far as “to fix and establish (certain) principles as the basis of all laws, constitutions and governments, which forever hereafter shall be formed in said territory.” The paragraph containing this declaration of object, is inserted by way of preamble to the “articles,” which are enacted by the next succeeding clause, and which constitute the whole of the remaining portion of the ordinance.

The first of these articles provides for religious liberty. The second, that “the inhabitants of the said territory shall always be entitled to the benefit of the writ of habeas corpus, of trial by jury, of an equal representation in the legislature,” &c. The third, that the “lands and property of the Indians shall never be taken from them without their consent.” The fourth, that “the said territory, and the states that may be formed therein, shall forever remain a part of this confederacy of the United States of America;” that “the legislatures of those new states shall never interfere with the primary disposal of the soil by the United States;” and that “no tax shall be imposed on lands, the property of the United States.” This article also contains the provision quoted in complainant’s bill, that the “navigable waters” in the territory should remain “common highways,” for the free use of all citizens of the United States “forever.” The fifth article fixes the future boundaries of some of the states to be formed out of the territory. The sixth and last article prohibits slavery, and provides for the restoration of fugitives from service and labor. Some of these articles contain still other provisions than those here enumerated.

The only pretence set up against the constitutionality of any of these provisions is, that some of them trespass upon the constitutional sovereignty of the states. The articles that are considered most strongly inconsistent with that sovereignty, are those which assume to prescribe certain principles to be observed in the local or domestic legislation of the states. But the constitution of the United States provides, in the 4th sec. of 4th art., that “the United States shall guaranty to every state in this union a republican form of government”—and this clause, of course, gives to the general government the power of defining, at least, the essentials, if there be any essentials, of a republican government—and of coercing an observance of them, if it so please, however reluctant they may be supposed to be to exercise such a power against the will of the state. Congress have assumed the power of determining what are the essentials of a republican government in the case, it is believed, of every new state that has been admitted into the union, as well of those not of the northwestern territory, as those that are. It is true, their definitions [10] have not, in all cases, been uniform; but those states, whose constitutions are most restricted, have no more right to say that, in their case, the standard has been unconstitutionally curtailed, than they have to say that, in the case of the other states, the standard has been unconstitutionally enlarged; and until a general standard shall be made an article of the constitution of the United States—or shall be declared by a law intended for universal application, it is not seen how any one state can determine, or any tribunal determine for her, (unless in extraordinary cases,) whether her powers in regard to her domestic polity have been unconstitutionally curtailed, or whether the powers of other states have been unconstitutionally enlarged. It must therefore, for the present, at least, we think, be admitted, (if for no other reason, because the contrary cannot be shown,) that these provisions of the ordinance, which prescribe certain principles of republicanism to be observed in the legislation of the state, are constitutional.

These remarks, in support of the validity of the most doubtful parts of the ordinance, are made, not because they appear to the complainant to have any very important bearing upon the main question at issue in this cause, (because the ordinance may be void in one part, and valid in another.) but chiefly with a view of sustaining the general character of the ordinance for validity, constitutionality and authority.

We pass now to the consideration of the particular provision, quoted in the bill, pertaining to “navigable waters.” Is this provision of any validity?

The ordinance purports to bear a twofold character:—1st, that of a simple law—and 2d, that of a compact.

We will first consider it in its character of a simple law, which is evidently its most important and appropriate character—for, although it is declared that the articles there enumerated shall be “considered as articles of compact,” yet the terms of the compact were imperatively prescribed, and authoritatively dictated. It can hardly be said that any free choice was left to the other parties to ratify or not to ratify it; it was in its inception, entirely an exparte matter. Congress, by virtue of its own power alone, “ordained and declared,” that it should have legal force and effect. This, too, was done before the organization of any state governments in the territory, and of course before there was any other party in existence, capable of ratifying such a compact with the United States. It, therefore, had so much of the character of an absolute law, as, at least, to reserve to the United States any rights of property, in the territory, which they had the right to reserve, and which, by the terms of the compact, were to be reserved by them. On this point there can be no doubt.

[11]

By an ordinance of this character, then, congress, the then proprietors of the territory, declared a reservation of a right of “common highway” over all the “navigable waters” of the northwestern territory, for the use of the citizens of the then United States, and of all other states, that might thereafter be added to the confederacy, “forever,” or until the right should be voluntarily surrendered. The only question that arises, as to the validity of this reservation, is, whether it be consistent with the constitutional sovereignty of the states that have since been formed out of this territory, and in which these rivers lie.

Without attempting to define precisely how far the constitutional sovereignty of the States does extend, it will be sufficient for our case simply to show to what it does not extend.

On this point it is clear, that it does not extend to the exclusion of any right of property in the United States, which they succeeded to from the confederation, or which, for the purpose of executing their constitutional powers, congress may have since acquired by purchase or otherwise, within the limits of a state. If the government of the United States find it “necessary and proper,” for executing their constitutional powers, to purchase property within the limits of any state, such as post offices, court houses, custom houses, dock yards, &c., they may constitutionally do so, and exercise a special jurisdiction over the property so acquired, sufficient to protect it from the operation of state legislation, and secure it to the uses of the general government, and the constitutional sovereignty of the state is not thereby infringed. It is true that general civil and criminal jurisdiction over the territory so acquired, cannot be exercised by the general government, without the consent of the state. But a special jurisdiction, sufficient to protect the property itself from the operation of state laws, and secure it to the uses for which the general government designs it, may be exercised in defiance of all state power. Such exemption of the property of the general government from state power, is essential to the very existence of the general government—and this doctrine was explicitly and fully maintained by the supreme court of the United States, in the case of McCulloch vs. Maryland, 4th Wheaton, 316, 317 & 432. The absolute and supreme power of the general government over their property, is also fully declared in the third section of the 4th article of the constitution, in these words: “The congress shall have power to make all needful rules and regulations respecting the territory or other property belonging to the United States.”

Proceeding upon these principles, congress having the power to regulate commerce, may, in carrying out that power, buy sites for, and build dry docks for the use of merchant ships, and may [12] enact that such docks shall be free for all merchant ships belonging to citizens of the United States. And the state, although it would retain its general civil and criminal jurisdiction over the spot occupied by the dock, could not legally touch the dock itself, or place the slightest impediment or obstruction in the way of the free use of it by those for whom it was intended. So, also, if a state owned any navigable rivers, which did not, by the necessary operation of the constitution, come under the control of congress, but which might nevertheless be made subservient to the purposes of that commerce which congress has power to regulate, congress would have the right to purchase that river of the state, declare it a “common highway” for all the citizens of the United States, and exercise such special jurisdiction as might be necessary to secure it to that use, and the constitutional sovereignty of the state would not be infringed thereby. And the same might be done in regard to any other property that congress might purchase, provided such purchase were “necessary and proper,” for the purpose of executing any of their constitutional powers. They, of course, have no power to make purchases of property within the states for any other purposes.

The power of congress over the territory which they succeeded to from the Confederation, is equally absolute with that over the property which they may constitutionally acquire, by purchase or otherwise, within the limits of a State. The power is declared in the same clause of the constitution, (the 3d sec. of 4th art.) and in the same terms, to wit: “The Congress shall have power to dispose of, and make all needful rules and regulations respecting the territory, or other property of the United States.”

In pursuance of this absolute power over the territory, Congress may reserve wild lands from sale within the limits of a State that has been erected out of territory once belonging to the United States, and protect such lands from taxation, and from all other interference on the part of the State. They may lease those lands, as in some cases they have authorized to be done, (Story’s Laws, Vol. 1, page 789, sec. 15,) grant pre-emption rights, reserve lots for light houses, dock yards, custom houses, hospitals, court houses, post offices, and post roads, or appropriate them to any other uses whatever that they may deem “needful”—(that is, so long as they retain the title in themselves—they of course cannot control them after they have parted with their right of property in them)—and the State, although it may in all other respects, exercise a general civil and criminal jurisdiction within the territory so leased, reserved, or appropriated, can nevertheless do nothing that shall in any manner obstruct, or interfere with the use to which these lands have been thus dedicated by Congress.

[13]

It is by virtue of this power that Congress have reserved, (in the State of Ohio for thirty-six years, and in other states for many years,) and still own and control wild lands, salt springs, mines, and so forth, within the limits of all the new States—and by the same right that they have reserved them thus long, they may reserve them forever, if they please.

To apply these principles to “navigable waters.” Such waters are as much “property” and “territory,” as are lands, or any thing else. They are described as property by Vattel, (Book 1, Ch. 22)—(and if they were not so at common law, they would be made so by any statute reserving them)—and like lands, or other property, may be reserved from sale during the pleasure of their owners. Those in the N. W. Territory originally belonged to the United States—no rights in them, either of soil or use, inconsistent with a paramount right of “common highway,” have ever been sold. So far from it, such a right of “common highway” over them has been expressly and repeatedly declared to be reserved. The constitutional sovereignty of the State is not infringed by such reservation. They are, therefore, still the property of the United States, so far as the right of “highway” over them is concerned—(we claim for the United States no other property in them)—and Congress has a right to exercise a special jurisdiction over them, sufficient to protect that right of “highway” from invasion.

But, it is said to be a common principle, that navigable rivers belong to the sovereign of the country in which they lie. This we grant is true, in the absence of any reservation by an antecedent sovereign—but such a reservation, we apprehend, would be binding even as between nations having nothing else in common. If England, for example, should cede one of her colonies to France, with a special reservation of a perpetual right of “highway” (in the technical sense of that term) for all English ships, over the navigable rivers in such colony, unless or until the right should be voluntarily surrendered by her, any violation or impediment offered to that right by the French government, would be a just cause of war—and if such a reservation would be legal between two nations, otherwise independent of each other, how much more, if possible, is it so between governments having so many interests in common as our general and state governments have, and exercising their powers, and capable of holding property, within the same boundaries?

But, again. We say that even on the principle that navigable rivers do belong to the sovereign, the right of way over this river would belong exclusively to the general government—because, for all purposes of “commerce among the several states,” Congress [14] is the exclusive sovereign (Gibbons & Ogden 9th Wheaton 1)—and, as this river extends into two states, that circumstance would necessarily make it the property, and bring it under the control, of the power having the control of commerce between those states.

But, it is said that the old states have the control of their navigable rivers; and, therefore, unless the new states have the control of those within their boundaries, they are not on a political equality with the old states.

We are willing to admit that the old states, before the adoption of the constitution of the United States, had the control of their navigable rivers—especially of those which were entirely within their own limits. But, we doubt whether, even when they were independent states, they had a right to place any impediment to navigation in a river that extended into a neighboring state. Before the purchase of Louisiana, the American government contended for the free navigation of the Mississippi to its mouth—and if that doctrine was correct, it would have applied, before the adoption of the constitution, to a river that extended into two states. Still, we are willing to admit, for the sake of the argument, that the states respectively had the sole ownership and control of all navigable waters, of every kind, within their boundaries. How did they acquire that control? It was, in the first instance, say the Supreme Courts of Pennsylvania and Massachusetts, by grants from the crown—(Carson vs. Blazer, 2 Binney, page 476—and Commonwealth vs. Charlestown, 1 Pickering 182.) It was then only by virtue of a proprietary right,—by force of actual ownership of them as property—that those states, so long as they were colonies, controlled their navigable rivers. After the revolution they held them by an additional right—that acquired by forcibly expelling all other claimants from their limits. Ohio cannot claim to control the rivers within her limits, by virtue of either of these titles. The United States have never granted these rivers to her—nor has she ever ejected the United States from the possession of them. Furthermore, in the act of congress which admitted Ohio into the Union—or which (if the other side like the term better.) acknowledged the sovereignty of Ohio, the United States did so with the special limitation, and on the special condition of the United States retaining the right of “common highway forever” over these rivers, according to the terms of the ordinance, (Story’s Laws, vol. 2, page 870, sec. 5)—and Ohio assented to this limitation and condition, as will be hereafter shown.

Further—The political equality of the States, in the view of the Constitution—to which (inasmuch as it has been assented to [15] by all the States) all adverse provisions of the ordinance, if there are any such, must yield—does not depend at all upon the fact, whether the U. S. own the same amounts, or the same kinds of property in each, to be exempted from the operation of the legislation of the State. Congress may own millions of acres of wild lands within the limits of one State, and that land be exempted from State legislation—and may not own a single acre in another State, and yet the two States are on a political equality in the view of the Constitution. So Congress may own a custom-house, court-house, or an hundred or five hundred post-offices in one State—in which case all these buildings would be exempt from the operation of State laws—& not own a single one of the same kind of buildings in another State, and yet the two States will be on a political eqality in the view of the Constitution. Because the Constitution provides that the power of Congress over “the territory and other property” of the U. S. shall be absolute, in whatever State such territory or other property may lie. By virtue of the same principle, Congress—provided they succeeded to the possession of them from the Confederation, or purchased them for the Constitutional purpose of “regulating commerce”—may own the navigable rivers, or a right of “common highway” over the navigable rivers, in one State, and not own them in another, without affecting the political equality of those States in the view of the Constitution.

Inasmuch then, as the United States were once the undisputed owners of these rivers, and have never sold or granted to Ohio their property in them—but, on the contrary, have, by the ordinance of ’87, the law of ’89 re-enacting that ordinance, and the law of 1802 admitting Ohio into the Union, specially reserved a right of “common highway” over them—and inasmuch as there is no constitutional impediment to their continuing to hold that property in them forever if they please, or to their exercising such special jurisdiction over it as is necessary to protect it from infringement—this right, or property in these rivers must be regarded as still belonging to, and under the control of the government of the United States.

We have thus illustrated the effect of the ordinance, and the subsequent laws confirming it, regarding them in the light of ordinary statutes. We will now consider the ordinance in the other character, that of a “compact,” which it also purports to possess.

It is declared that the articles enumerated in the ordinance “shall be considered as articles of compact with the people,” as well as “the States” of the N. W. Territory. We suppose that this compact with “the people” was, of course to continue only until the formation of States and State governments—for it is not [16] to be supposed that Congress intended, even if they had had the power, to tie the hands both of the U. S. and of the State Governments in this territory, from ever altering any one of these articles, without first obtaining the consent of every individual citizen that might forever after reside in the States to be formed out of the territory. And even during the territorial government, it could certainly have no legal effect beyond the pleasure of Congress. The people, in their individual capacity, were incapable of ratifying such a compact—and for this reason the compact, as between the U. S. and the “people” of the N. W. Territory, was not binding even upon the faith of the U. S.—they might retract their pledge at any time they should see fit. The ordinance in this respect, was like the last tariff law, commonly called the compromise act, which it was declared should continue a certain number of years, and was intended, at the time it was passed, to operate as a sort of pledge—so far as that particular Congress, had power to make such a pledge—to all parties interested, of what the policy of the government should be for the term of years therein mentioned—but which might nevertheless, be at any time legally repealed. So the ordinance, in its character of a “compact with the people,” was merely a deliberate and solemn declaration, on the part of the U. S., and intended as a sort of pledge (so far as that Congress had power to make such a pledge,) to the people of the territory, as to the kind of Government that should be extended over them, until they were permitted to form State governments of their own. Such a pledge was repealable at the will of any subsequent Congress—and “the people” took no rights under it, which could not be retaken by Congress at will. It was also finally superseded by the “compact with the States,” so soon as those states were formed. Of course we have now nothing to do with this “compact with the people.”

But the ordinance purports also to be a “compact with the States.”

Perhaps there may be sufficient grounds for saying that this compact has been ratified, or rather assented to, on the part of Ohio. The Convention that formed the constitution of the State, assembled, as we have before had occasion to remark, under authority of the law of Congress of Ap. 30, 1802, which provided that the Constitution to be formed by them, should “not be repugnant to the ordinance.” By assembling under authority of that law, they acknowledge the validity of that provision. In the preamble also to their Constitution, they again recognize the validity of the ordinance. Her Supreme Court also has declared, at least one “portion” of the ordinance to be obligatory upon the State.—(Hogg & Zanesville Co. 5 Hammond, 416.)

[17]

If it should be said that until a State government was actually formed, no compact could be entered into that should bind the State after it was formed, and that therefore the assent of the Convention was of no validity—the answer would be, that, by the law of Congress (of April 30, 1802) authorizing them, on certain conditions to form a Constitution, the people of the territory were invested, prior to the formation of their State government, with the independence necessary to enable them to assent or dissent to the conditions of the ordinance and law. The people exercised this independence by electing members of the Convention under, and with reference to, the provisions of the law. The members of the Convention, therefore, constituted, in fact, quoad hoc, a government—for they had the authority of the people to act for them in the premises. Under these circumstances the Convention assented to the conditions of the ordinance—and although they at the same time established a new form of government, and assumed a corporate name, they could not thereby relieve their constituents from the obligations they had just assumed—especially as the people have ever since sanctioned the doings of the Convention by acquiescence.

Congress also, by the same law, that authorized the assembling of the Convention, (Story’s Laws, Vol. 2, p. 870, sec. 7), submitted to that body, “for their free acceptance or rejection,” certain “propositions” in relation to school lands and salt springs, by which the State, on certain conditions, was to acquire valuable benefits. These “propositions” were accepted by the Convention in behalf of the people of Ohio—(See “Ordinance and Resolution,” to that effect, passed by the Convention, Nov. 29, 1802 Chase’s Statutes of Ohio, Vol. I, page 74)—and Ohio has ever since enjoyed all the valuable privileges thus acquired. But if it should now be maintained that that Convention had no right to make a compact with the U. S., then those school lands must now be accounted for to the U. S. and the possession of the salt springs restored.

We think, therefore, it must be held that that Convention had power, in behalf of the people, to assent, and that their recognitions before mentioned of the validity of the ordinance, virtually constituted an assent, to the terms of the ordinance—or, in other words, they thus ratified the compact contained in it, and thus bound the State.

What, then, was the effect of this “compact”? Why, it threw open to the people of the whole U. S. the free use, “forever,” as “common highways,” of all the rivers in Ohio, that were then navigable—or, rather, the State thereby assented to the reservation of this right of highway, as expressed in the ordinance, and precluded [18] herself from the right of ever afterward objecting to it. This was the effect of the compact, not merely in relation to such rivers as Ohio might suffer to remain navigable—but in relation to all that were navigable at the time of the compact—and this ratification of the compact would have had this effect, even if Ohio, instead of the U. S., had at that time been the real owner of the rivers.

The people of all the U. S. then, were thenceforth to have “common” rights with Ohio, in the use of these rivers, so far as the navigation of them was concerned. It was also a part of the compact that the rivers should remain “highways”—that is, open ways. No impediment, therefore, could be placed in them by either party without the consent of the other. And such, we apprehend, are now the respective rights of these parties to these rivers—(that is, if we consider the ordinance merely in the light of a compact between equals, and not of a law by the superior power—or, rather if we consider the rights of the U. S. to these rivers as acquired, instead of reserved, by compact—for in the case of reservation they would still continue to have sole authority over them. Such, we repeat, (subject to the proviso just stated), would, we apprehend, be the respective rights of these parties to these rivers, unless the compact, on this particular point, have been annulled or modified.

It was provided in the ordinance, that the articles of compact might be altered “by common consent.” Has this been done? We maintain that by the adoption of the Constitution of the U. S.—to which Ohio, as well as the other States, has assented—this compact has been so far modified or superseded, as to give to the General Government the same exclusive power (instead of the modified one, which perhaps it would have held under the compact,) over all such “navigable waters” as extend from Ohio into any neighboring State, as by the Constitution, it possesses over all other navigable rivers, which extend into two States. We suppose the decision of this Court, in Gibbons and Ogden, that the power of Congress “to regulate commerce among the several States,” was an exclusive power over “navigation” between two or more States, establishes the point that Congress has exclusive jurisdiction over the right of way of all navigable rivers extending into two or more States. If, however, the Court should decide that the compact expressed in the ordinance, has not been thus far superseded or modified by the Constitution, we then fall back upon the compact itself, and say that that covers all navigable rivers of every kind, whether they extend beyond the limits of the State or not—and maintain that, even under that compact, the U. S. have equal rights with Ohio in this river, [19] and that therefore Ohio has no right to convert this “highway,” or open way, into any thing different from an highway, or to obstruct or impede the navigation of it without first obtaining the consent of Congress.

We will however, offer one or two suggestions in support of the opinion, that this modification of the compact has been made by the constitution. And one suggestion is, that unless such a modification or alteration have been made, congress has not the power of making any such improvements in these livers as should make them any thing but “highways,” or open ways—they cannot, for instance, erect dams in them for the purpose of improving the navigation, without first obtaining the consent of the states in which the rivers lie. If the provision of the ordinance, that these rivers should remain “common highways,” that is, open ways, was strictly a compact, and not merely a reservation of certain highways by one party, and assented to by the other—and if that compact, so far as it relates to waters extending into two states, have not been superseded by the constitution—then, both parties having equal rights in the rivers under the compact, and having agreed that they should remain “highways,” or open ways, neither party, the United States no more than a state, could place any structures in them that should alter them from highways—though with a view to the general improvement of the navigation, without having first obtained the consent of the other party to the compact. And, therefore, if this compact have not been altered, so far as it applies to rivers extending into two states, by the adoption of the constitution, but is still in force against the United States, it imposes such a restriction upon the constitutional power of congress in “regulating commerce among the several states” of the northwestern territory, as that power does not lie under in other portions of the union—for elsewhere, as we shall hereafter attempt to shew, congress may improve the navigation of rivers that extend into two states, by dams or otherwise, at pleasure.

The other suggestion is, that the ordinance was first enacted under the Confederation. The States being then independent of each other, compacts became necessary to secure freedom of navigation within each other’s boundaries. Such a compact, to a certain extent, was expressed in the 4th of the articles of Confederation, as existing between the States that were parties to the Confederation. But the freedom of navigation into each other’s territories being now secured by the constitution of the United States, subject only to such regulations as the general government may prescribe, compacts on that subject are no longer applicable to our condition. They would constitute exceptions [20] to the operation of the national constitution—and would but disturb the uniformity and equal operation of the system intended to be established by it. Ohio, and the other States of the northwestern territory, have assented to this national constitution—and the only reasonable doctrine would, therefore, seem to be that such compacts, with these new States, have been superseded or annulled by that constitution, in all cases coming within its sphere.* In fact, we suppose it entirely clear that the ordinance, by virtue of its original enactment in ’87, could not deprive succeeding Congresses under the constitution, of any power intended to be granted by the constitution. The only question is, whether Congress, by the re-enactment of the ordinance under the constitution in ’89—or by the laws permitting the states of the territory to form constitutions “not repugnant to the ordinance,” intended to surrender any portion of their exclusive and constitutional power of regulating commerce and navigation among these States? or, what is the same thing, of their exclusive control over navigable waters extending into two of the States? We do not think it necessary to make an argument on this point, for we cannot suppose that it will be pretended on the other side, that any intention to part with, or suspend the operation of, one of their most important constitutional powers, so far as it might operate upon this particular portion of the union, can reasonably be inferred from the informal language of those acts. It would certainly require something more explicit to pledge the faith of Congress, that they would not exercise their constitutional powers in a particular portion of the union—more especially as they have repeatedly evinced the opposite of any intention to make such a pledge, by enacting various laws for disposing of and controlling these rivers.

Assuming then, that the compact contained in the ordinance, has been superseded or annulled, so far as it applied to “navigable waters” extending into two or more States—there is nothing else left for that compact or reservation to operate upon, except those “navigable waters,” if any such there are, which lie entirely within the limits of one State, and connect with no waters of other States, but which may nevertheless be useful to the citizens of other States for purposes of navigation. The United States would have, under the compact, at least, an equal right with Ohio, to the control of these last named waters—and Ohio could [21] not, without the consent of Congress, erect in them any structures that should alter them from “highways,” or open ways, even though she were to do it for the purpose of improving the navigation.

The conclusion then, to which we have arrived in regard to the effect of this ordinance—re-enacted as it has been under the constitution—is, that—if it have not been in part superseded or annulled by the constitution—it has, either in its character of a law, or a compact, or both, had at least this effect, viz:—To reserve to the United States such a right of “common highway” over all those rivers within the limits of Ohio, as well those lying entirely within the state, as those extending beyond it, that were navigable when Ohio was admitted into the union, and are still useful to the citizens of other states for purposes of navigation—as that Ohio can offer no obstruction or impediment to the navigation of them, without first obtaining the consent of congress. And this, the complainant supposes, is sufficient for his case.

There is however a different view, that may be taken of this matter of the “compact,” so far as it relates to these rivers—a view, which, if correct, ejects Ohio from all right that she may set up, or that her Supreme Court may set up for her,* to an equal voice with Congress in the control of any of these navigable rivers—as well of such as lie entirely within her limits, as of those that extend into other states.

If Ohio have the right to an equal voice with Congress in the control of any of these rivers, that right is, in effect, an equal right of property in them, or in the right of way over them. The right of perpetual control is a right of property. Or, at any rate, a right of perpetual use of navigable rivers as highways, and of veto upon any alteration of them from highways to private ways, or to no ways at all, constitute a valuable property right. This right of property in them, if the State have it at all, must have been acquired, at some time, from the United States. Have the United States ever granted her that right? If they have ever made such a grant, it was made by, or in pursuance of, this “compact,” that is expressed in the ordinance. Let us see whether this “compact,” or the laws made in pursuance of it, have ever actually passed any such right to Ohio:—

At the time the ordinance was first enacted, there was no such State in existence as Ohio, that could ratify the compact, or, of [22] consequence, that could take any rights under it. The ordinance, therefore, at the time of its enactment, so far as it related to a grant of valuable rights of property to States afterward to be formed, was not a “compact;” for a compact supposes the actual existence of two parties. It was, then, in effect, merely the suggestion of a compact, or the mere promise of a compact, for the benefit of a party not then in existence. Such a suggestion or promise was entirely gratuitous, and not binding upon the party making it. It was not merely voidable—it was actually void—and could never be of consequence unless actually executed.

Was the re-enactment of the ordinance in 1789, an execution of this promise? or did it pass any rights of property to Ohio? No; for the State of Ohio had not even then come into existence to ratify the compact, or to take any rights under it. This re-enactment, then, so far as it promised any valuable rights in these rivers to Ohio, whenever she should come into existence, was, at most, like the original enactment, merely a gratuitous and void promise—it bound no one—it passed no rights of property in the rivers. The right of property, then, in these rivers, still continued to remain—at least until 1802, when Ohio became a State—perfectly, legally and solely in the United States. At any time previous to 1802, Congress had a perfect right to make, at pleasure, a final and absolute disposal of the property in these rivers—they had a right, for instance, to sell them to individuals, if they had so pleased—without the least regard to any gratuitous promises or one-sided compacts, that had previously been made or suggested for the benefit of a party not in existence at the time.

The question now remains: Did the United States, in 1802, when Ohio became a State, or have they since, executed this promise, by which they were to grant to Ohio equal rights with Congress in the property or control of these rivers? We say no. We say that Congress have chosen to disregard that void promise, and to dispose of these rivers in another way. On the 18th May, 1796, six years before Ohio became a State, and six years before any rights could have vested in Ohio, Congress evinced the intention of disregarding this promise, and proceeded to act upon that intention, by enacting, on the strength of their own rights of property and jurisdiction, and without reference to any will or any claims that Ohio might ever afterward set up, that a portion of these rivers should “be and remain public highways”—(Story’s Laws, vol. 1, page 421.) This absolute and arbitrary legislation in regard to a portion of these rivers, evidences their intention to retain their right of exclusive control over the whole of them, without regard to any previous promise that had [23] been made to the contrary. And they have followed up this policy, from that day to this, by the same kind of legislation (as will hereafter be shown) in regard to all the other navigable rivers in the territory, and without reference to, or consultation with, Ohio, or any other of the States in which the rivers lie. In doing this, they have only done what they had a perfect right to do. They have only done what the new form of government, and the new situation of the States under the Constitution, made it proper that they should do. Indeed this whole idea of a “compact” in regard to these rivers, had its origin solely in the nature of the Confederation, and in the want of any supreme power, that, legislating in its own sphere, could secure the rights of all parties to the use of them. When this requisite power was brought into existence by the adoption of the Constitution of the United States, all occasion for a compact vanished at once—and with the occasion doubtless vanished all intention of executing it. Its obligation also, if it ever had any, expired at the same time, for no rights had become vested in other parties under it, and the promise or compact could have no force beyond the pleasure of the party making it, until some other party had actually availed itself of it, and acquired rights under it. In fact, the provision of the new Constitution, (art. 4, sec. 3,) which declares that Congress shall have sole and absolute power over the territory of the United States, to do with it whatever should to them seem “needful,” was a virtual retraction of any promise, that had previously been made, to dispose of it in a particular way, or to give to any States that might afterwards be formed, an equal right with Congress to the property or control of the rivers that made a part of that territory.

But, it may be said that the law of Congress of April 30, 1802, allowing the people of Ohio to form any constitution “not repugnant to the ordinance,” is equivalent to a permission to them to assume an equal power with Congress in the control of these rivers. But we think the object of this provision in the law of 1802, was merely to fix the republican character of the constitution to be formed, and not to invest the state gratuitously with any valuable rights of property, at the expense of the United States, and merely in the execution of a void promise, after all the circumstances that gave rise to that promise, and all occasion for the fulfilment of it, had passed away. We think that, even if Congress had never manifested any intention to the contrary, this merely negative provision in the law of 1802, which evidently referred to the political character of the constitution to be formed, and contained no express reference to any grant of property to the state, could not have had the effect of executing that void [24] promise, or of passing any valuable property rights from the United States to the state. We are confident that a direct and explicit grant—such as has never been made—would have been necessary for such a purpose. But, however, that may be, the fact that Congress had previously manifested an intention of not executing that promise—as by the law of 18th May, ’96, making an arbitrary and absolute disposal of a portion of these rivers, they had done—and the further fact that they have ever since continued to dispose of the rest of these rivers according to their own will and pleasure, and without reference to any claims or wishes on the part of the states in which they lie, rebut any presumption, that they intended, by the law of 1802, to grant any special rights of property in these rivers to Ohio.

To illustrate this point, let us suppose that the present Congress should pass a law, that whenever hereafter a state should be formed in the territory west of Missouri, such state should become joint proprietor with Congress of a certain tract of land within its limits. Such a promise would obviously be entirely gratuitous and void—and we say that it would require a new and explicit grant, after the state should have come into existence, to pass this right of property from the United States to the state. But, admitting that this express legislation would not be necessary, still, if Congress should at any time previous to the state’s coming into existence, manifest an intention of not executing the promise, that circumstance would be sufficient to rebut every presumption founded on the original promise, and would make an express grant necessary. If, for instance, Congress, before this supposed state had come into existence, should sell a part of the tract referred to, that act would be sufficient evidence of their intentions in regard to the remainder of the tract. It would avoid the whole promise, and Congress might then go on, after the formation of the state, and sell the remainder of the land, without any reference to the claims of the state. So we say in regard to these rivers. Previous to any rights vesting in the states, Congress manifested an intention of retaining, in their own hands, the exclusive control of these rivers during their pleasure, by making permanent laws in relation to a portion of them—and they have ever since, notwithstanding the formation of states, continued to act upon that intention, by making similar laws in relation to other portions of them. We say, therefore, that this promise of a grant to Ohio, of special rights of property in these rivers, has not only never been executed, but has been in fact repudiated.

If this view of the compact suggested in the ordinance, be correct, so far as it relates to rivers, then the compact (on this particular point) was never executed, nor ever took effect, so far as [25] to pass any rights to any of these rivers, from the United States to the states in which the rivers lie—not even to those rivers that lie entirely within a single state; and, therefore, that particular portion of the ordinance, which relates to rivers, is now of no validity whatever, so far as its object was to grant valuable rights to Ohio. It is valid only in its character of a law, designed to reserve the rights of the United States, and we are to look at it solely in this latter character, and especially are we to look at any subsequent legislation on the part of Congress, to determine the present ownership of these streams.

There is still one other point, having relation to the ordinance, which is worthy of consideration. The constitution of Ohio, was professedly made in subordination to the ordinance, as its preamble shews. Now, whether the ordinance itself had power to bind the people of Ohio, against their will, in the formation of their constitution, or not, is a question of no consequence in determining the present power of their legislature, under that constitution. It is sufficient that, for some reason or another, the people of Ohio, by their constitution, gave their legislature no power to transcend the provisions of a certain instrument called “An Ordinance of Congress,” &c. We submit, therefore, that—whether the people of Ohio have power to adopt, at pleasure, a new constitution, that shall be paramount to the ordinance, or not—yet, so long as they permit their present constitution to continue, their legislature is bound by it, and have no powers beyond it. If such be the case, the legislature of Ohio has no more power to obstruct these “highways” within her limits, than the legislatures of Maine and Massachusetts have to establish slavery in those states, in defiance of their constitutions.

Again—It is to be considered that the people of Ohio, at the time of adopting their constitution, were in a territorial state, and had no legislative powers, other than those specially granted to them by Congress. Congress, in the law of April 30, 1802, authorizing a convention, saw fit to limit the powers of that convention to the formation of a constitution, consistent with a certain instrument called “an ordinance,” &c. Now, they might, if they had so pleased, have said that the powers of that convention should be limited to the formation of a constitution consistent with the declaration of independence, or with John Locke’s constitution for Carolina, or with any other instrument whatever—and, although, such legislation on the part of Congress, would have been arbitrary, capricious, and perhaps unconstitutional, still that particular convention would have been bound by it—because all their powers were derivative, and could be exercised only in conformity to the authority granted. They must act thus, or not at [26] all. If, therefore, the ordinance was not obligatory upon the state at large, either by force of its original enactment, or by force of the re-enactment in 1789, still, the law of Congress of 1802, authorizing the convention, made it obligatory upon that particular convention, by refusing them power to go beyond it. The convention might have refused to act at all, under such restrictions, but they could not act in conflict with them. Under these circumstances, they saw fit to act in conformity with the powers granted to them; and, the people, by their subsequent acquiescence, have adopted and sanctioned that action; and even if the people have power to adopt a new constitution to-morrow, that shall be paramount to the ordinance, still their legislature is governed by the one in existence, until a new one shall be formed.

Upon this question of the powers of the legislature, we quote the opinion of the Supreme Court of Ohio, given in the case before referred to, of Hogg vs. Zanesville Company, which grew out of a dam, which the legislature had licensed that company to build across the Muskingum river. The court, after citing from the ordinance, the clause in regard to “navigable waters,” say: “This portion of the ordinance of 1787, is as much obligatory upon the state of Ohio, as our own constitution. In truth, it is more so—for the constitution may be altered by the people of the state, while this cannot be altered without the assent both of the people of this state, and of the United States, through their representatives. It is an article of compact, and until we assume the principle, that the sovereign power of the state, is not bound by compact, this clause must be considered obligatory. Certain ‘navigable rivers’ in Ohio are ‘common highways.’ Of this character is the Muskingum river. Every citizen of the United States has a perfect right to its free navigation—a right derived, not from the legislature of Ohio, but from a superior source. With this right the legislature cannot interfere. In other words, they cannot, by any law which they may pass, impede or obstruct the navigation of this river. That which they cannot do directly, they cannot do indirectly. If they have not themselves the power to obstruct or impede the navigation, they cannot confer this favor upon an individual or a corporation.” (5 Hammond 416.)

This opinion, we suppose will be considered decisive as to the powers of the Legislature of Ohio—for although this Court may, in some cases, curtail the powers of a State Legislature, as expressed in their Constitution, in order to reconcile them to the Constitution of the U. S.—yet it is believed that it will never enlarge those powers beyond the limits established by their own tribunals.

[27]

The complainant is not disposed to rest his case upon any doubt that may exist as to whether the Commissioners have received the authority of the Legislature to erect this dam. The powers granted to the Canal Commissioners, by the law of 1825, “to take possession of, and use all and singular any waters, streams” &c. “and to make all such dykes, locks, dams and other works and devices as they may think proper,” (General Laws of Ohio vol. 23-page 56—also Chase’s Ohio Statutes Vol. 2, page 1475, Sec. 8.) were evidently intended to apply as well to navigable waters as to others. This intention is to be presumed from the unlimited terms of the grant, taken in connexion with the fact that the Legislature have ever assumed to control navigable rivers, and to license dams across them, as may be seen by the laws referred to under the head of “Dams,” in the Index to Local Laws in Chase’s Statutes, Vol. 3, page 2149. It is also well known that this power has been exercised by the Commissioners, and sustained by the Legislature, in very numerous instances. The Legislature also, by “an act to improve the navigation of the Muskingum river by slack-water navigation,” passed March 9, 1836, (Local Laws of Ohio, Vol. 34 page 346) authorized the Commissioners to erect dams and locks across that river. The Legislature also, at its last session, refused to grant the request of the Complainant, that the erection of this dam in the Maumee river might be forbidden. The only question therefore, which the Complainant raises, is as to the powers of the Legislature.*

One or two suggestions in reply to arguments urged in the Circuit Court, and we will have done with the ordinance. It was there argued, that because the “carrying places” between the rivers, which, equally with the rivers, were, by the ordinance, made “common highways,” had been obliterated and lost, the right to the rivers was lost with them, notwithstanding the rivers have been in constant use as highways up to the present time. One answer to this argument is, that if these carrying places have been lost in consequence of their use having been voluntarily abandoned by the public, that constitutes an alteration, so far, of the compact, according to its provisions, viz. “by common consent.” The right of “highway” is not a right of soil, but of use, and may be forfeited by non-user. But the right to any particular portion of a highway is not forfeited, so long as the common use of that portion [28] is continued, although the use of the remaining portions be abandoned. Another answer to the argument is, that if these portages have been obliterated and destroyed, either by negligence or design, such a loss does not at all involve the loss of any other rights, which remain, and can be identified. Because a man’s house is destroyed by accident or an enemy, that loss does not involve a forfeiture of his farm also. Yet such is the amount of the argument on the other side.

Another argument, urged in the Circuit Court, was, that Ohio and the U. S. were joint owners of these rivers, and that, as joint owners, each party might exercise control over them to the extent of the destruction of the object. But we doubt whether the Court will concur in the opinion, that Ohio, in her capacity as a State, is a joint owner with Congress, or has any control, or even a right to a voice in the control, of any of the navigable streams within her limits—and especially of any that extend into another State. But even if she have a right to an equal voice with Congress in the control of them, she obtained and still holds that right solely by virtue of a compact, one part of which stipulates that the rivers should remain “highways” or open ways, until the “common consent,” that is, the consent of both parties, should be obtained to their alteration. This consent, on the part of Congress, has never been given. In addition to this, the laws of Congress, (which will be hereafter referred to,) enacting that these rivers “shall remain highways,” would, until repealed, operate as an express refusal, on the part of Congress, to consent to the alteration.

We have now done with the ordinance, and will pass to the consideration of the question, as it would stand, if the Ordinance were laid entirely out of the case.

And here it becomes necessary to repeat several propositions, which have been stated before, viz. 1st, That the U. S. originally owned these rivers, as property, along with the rest of the territory. 2d, That there is no constitutional impediment to their continuing to hold and control them, as property, forever, if they so please. And 3d, That they have never sold or explicitly granted them to Ohio. We ask, then, whether, under this state of facts, these rivers would not necessarily have remained the property of the U. S. even if no law had ever been passed making a reservation of them? Most certainly they must, unless there be some ground, on which an inference or implication could be based, that the U. S. intended to part with them. What legal ground is there to sustain such inference or implication? Is it, that these waters can no longer be useful to the U. S.? but may be useful to the State? Certainly not, for although they may be useful to [29] the State, it is clear that some of them, at least, may be useful to other States also. Suppose a navigable lake or river, extending nearly across the State of Ohio from east to west—approaching nearly to Pennsylvania on the east, and Indiana on the west—yet lying entirely within the State of Ohio, and communicating with no other water that extended out of the State. Such a water, in one of the old States, might possibly be maintained to have not been granted to Congress, by the clause of the Constitution giving them power over “commerce among the several States.” Yet it is evident that such an extent of free navigation in Ohio, might be highly useful to the people of other States than Ohio—and that it even might properly be considered of very great importance by Congress, as affording facilities for that “commerce among the several States,” which Congress has the power of regulating. It even might properly be considered of such importance to that commerce, as to justify the purchase of it by Congress, if it were the property of the State. Under these circumstances, is it to be held, by force of some vague inference or implication merely, that Congress have seen fit to surrender their legal right to their property in this water gratis to Ohio? That they have given her the right to shut it up against the commerce of Indiana and Pennsylvania, or to exact contributions for its use from all the other States of the Union, that may wish to avail themselves of its navigation? Certainly such an inference or implication would be as unreasonable, as it is baseless. It might, with much more reason, be inferred or implied that Congress had gratuitiously surrendered to Ohio a tract of land of the same extent—because such a tract of land probably could never be made of one hundredth part the value, to the people of the U. S., of such a navigable water. On the other hand, inasmuch as such a water would afford great facilities for “commerce among the several States,” there would be much more reason in implying a grant (under the Constitution) of such a water to the U. S., in case it lay in one of the old States, that own their streams, than in implying a gratuitous grant of it by Congress to a State, when Congress were the real owners, as they were of the streams in the N. W. Territory.

Even in the absence then, of any special reservation by Congress, Ohio could certainly lay no claim to the ownership or control of any navigable waters within her limits, unless it were such as, from their unfavorable location, or the smallness of their extent, were useless to the people of every other State: and none could be called useless or worthless to the people of other States, which, when free to be used, were in the habit of being used by them.

[30]

But Congress have not left their right to these rivers to stand upon this ground alone—although they might safely have done so. They have seen fit to guard and declare their rights by special enactments. So early as the 18th of May, 1796—six years before Ohio became a State—Congress passed an act, entitled “An act providing for the sale of the lands of the United States, in the territory northwest of the river Ohio, and above the mouth of Kentucky river”—(Story’s Laws, Vol. 1, page 421.)

This act provided for the sale of all those lands, within the district which is now Ohio, to which the Indian title had, at that time, been extinguished. The 9th section of the act provides “That all navigable rivers, within the territory, to be disposed of by virtue of this act, shall be deemed to be and remain public highways.”

The Indian title had not, at that time, been extinguished to but a small portion of the N. W. Territory; but this law continued the standard of the regulations and conditions upon which all lands subsequently acquired, were ordered to be sold; and so fast as the Indian title was extinguished, and the lands brought into market, laws were passed specially referring to this act of 18th May, 1796, and the acts in addition thereto, and enacting that the lands should be sold under the same regulations, and “upon the same terms and conditions, in all respects,” as had been provided by those primary laws—except in certain cases where some special alterations were made by those subsequent acts. But no alteration of that portion of the original law, that related to navigable rivers, was ever made in any subsequent act—(Story’s Laws, vol. 1, p. 783, sec. 1; vol. 2, p. 926, sec. 1; p. 929, sec. 5; p. 1011, sec. 1; p. 1066, sec. 2; p. 1186, sec. 2; vol. 3, p. 1586, sec. 3; p. 1596, sec. 3; p. 1744, sec. 3; p. 1786, sec. 2, &c. &c.)

The Indian title to the territory embracing so much of the Maumee river as lies in Ohio, was extinguished by a treaty, called the treaty of Detroit, made on the seventh of November, 1807—(See Lowrie & Clarke’s edition of American State papers, 1st vol. of Indian affairs, page 747, sec. 1)—and by a treaty made 29th September, 1817, “at the Foot of the Rapids of the Miami of Lake Erie”—(Amer. State Papers, 2d. vol., Indian affairs, p. 131, secs. 1 and 2.) In these treaties, this river is called the “Miami of Lake Erie”—one of the several names by which it has formerly been known. These lands were subsequently brought into market, by a law passed March 3d, 1819—(Story’s Laws, vol. 3, p. 1743)—and were included in what were then designated as the Piqua and Delaware districts. In this act it was provided, (sec. 3.) that the lands should be sold “on the same terms and conditions, in every respect, as are or may be provided [31] by law, for the sale of lands of the United States in the States of Ohio and Indiana.” These “conditions” of course embraced the one, contained in the original act of 18th of May, 1796, in regard to “navigable rivers,” requiring that they should “be and remain public highways.”

By a law also, passed March 26, 1804, (Story’s Laws, vol. 2, p. 929,) it was provided, (sec. 6,) “that all the navigable rivers, creeks and waters, within the Indiana territory shall be deemed to be and remain public highways.” The Maumee river extends twenty miles into what was then the Indiana territory, and what is now the State of Indiana. It also has two navigable branches, (the St. Mary’s and St. Joseph’s) lying partly in that territory. This reservation of that portion of the river lying in Indiana, would have been sufficient evidence, in the absence of all other, that the intention of Congress was to reserve the whole river; and any evidence of such intention, we suppose would have been sufficient for our case.

It is evident that it was the intention of Congress to give these provisions effect, not merely while the territorial governments continued—but forever. As Congress has fixed no limitation to the time, it must be considered unlimited. The intention of Congress on this point may also be gathered from the fact, that it has been their uniform policy to reserve all navigable rivers within all the lands originally owned by the U. S.—and have subsequently, in no case, (so far as we are aware), granted or surrendered one of them to the State in which it lay. By a law passed March 3, 1803, (Story’s Laws, vol. 2, p. 900) Congress enacted “that all navigable rivers within the territory of the United States south of Tennessee, shall be deemed to be and remain public highways.” An act passed February 15, 1811, provided “That all the navigable rivers and waters in the territory of Orleans and Louisiana, shall be, and forever remain public highways.” (Story’s Laws, vol. 2, p. 1183, sec. 12.) An act of February 20, 1811, “for enabling the people of the territory of Orleans to form a Constitution,” &c., provides “that the river Mississippi, and the navigable waters leading into the same, or into the Gulph of Mexico, shall be common highways and forever free” “to the inhabitants of the State and the citizens of the United States.” (Story’s Laws, vol. 2, p. 1184, sec. 3.) Another “Act for the admission of the State of Louisiana into the Union,” &c., provided “that it shall be taken as a condition upon which the said State is incorporated in the Union, that the river Mississippi, and the navigable rivers and waters leading into the same, and into the Gulph of Mexico, shall be common highways, and forever free,” &c. to the inhabitants of the whole U. S.—(Story’s [32] Laws, vol. 2, p. 1224 sec. 1.). This provision, being a part of the very act admitting the State into the Union, was necessarily intended to apply after the State government was formed, and is sufficient evidence that all other laws on the same subject, were intended to remain in force after State governments were established, as well as before.

It is believed that laws have been passed making the navigable rivers of all the territories and new States in the Union, “public highways.” The various laws on this subject are referred to in the index in the fourth volume of Story’s Laws, under the head of “Lands, public,” in the respective States and Territories. They leave no doubt as to the intentions of the Government to make these “highways” perpetual.

On the ground then, of express statutory reservation, the right of the public to the use of the Maumee river, as a “common highway,” is indisputable.

We have still one other ground, on which we claim that the control of this river belongs exclusively to Congress, viz:—the decision in the case of Gibbons and Ogden (9th Wheaton 1.) That decision was, that the Constitutional power of Congress to “regulate commerce among the several States,” was a power over navigation. The language of the Court in that case, is (page 193) that “the word” (commerce) “used in the Constitution, then, comprehends, and has been always understood to comprehend, navigation within its meaning: and a power to regulate navigation, is as expressly granted, as if that term had been added to the word “commerce”. (We may then, in the further discussion of this cause, consider commerce and navigation as synonymous terms.)

This power of Congress over “navigation among the several states,” is declared to be an exclusive power, (page 198,) and to comprehend the whole subject of such navigation. It therefore comprehends the navigation of all navigable fresh water rivers, that extend into two states, as well as to all lakes and tide waters. We find that Congress have understood their powers as embracing navigable fresh water rivers that extend into two states. They have annually made appropriations for rivers of this kind. At the last session, appropriations were made for improving the Hudson river above Albany, the Cumberland river in Kentucky and Tennessee, below Nashville, and many other fresh water rivers—(Statutes of 1837-8, Ch. 171, pages 115, 118.) It is believed that at every session of Congress, there have been more or less appropriations of this kind—all proceeding upon the assumption that Congress had the right to take possession of these rivers, and do with them what they pleased, without asking the consent [33] of the states in which the rivers lie—and this has been the case in regard to rivers in the old states, as well as in the new. At the last session of Congress, (March 23, 1838,) a report (House of Reps. Doc. 343,) which had been called for, was made to Congress, of a survey of Alleghany river from Olean, in New York, to Pittsburg, in Pennsylvania, with a view to its improvement. What was done with this report, we have not yet had an opportunity of ascertaining. But this is a strong case to shew that Congress consider their power as embracing all navigable rivers, even within the old states, if they but extend beyond the boundaries of one state.

If it should be said that these appropriations are made on the supposition, not that the states, in which these rivers lie, must, but that they voluntarily will, tolerate these improvements, and let all the citizens of the United States have the free benefit of them—the answer is, that such a supposition is by no means so probable a one as to justify Congress in the expenditure of money upon them, without first obtaining the consent of the states. If the states have the power to control these rivers, it may oftentimes be for their interests to do it. They may, for instance, wish to charge toll for the use of them, as they have a right to do—as much as for their canals—if they are the private property of the state. Ohio is now about expending a large amount of money upon the Muskingum river, and intends hereafter to demand toll for the use of it. After she shall have expended this money, she cannot be presumed willing to surrender the possession of the river to Congress, and be deprived of the privilege of taking tolls.

Again—if a State have the right to put in dams and locks, and charge toll for the use of them, in rivers that extend into another State, then Congress have no conflicting right, and cannot prevent the State from taking such toll as she pleases. Congress would have no right to interfere with the improvements or obstructions which the State is making—nor with the rate of toll which the State may exact for the use of the river, any more than with the toll the State might charge for the use of its turnpikes, railroads or canals. The consequence would be, that the State, under the name of toll for the use of the State’s property, could indirectly, but as effectually, exercise the power of “regulating navigation or commerce among the several States,” as it could if it had power to levy a direct tonnage or impost duty, on imports and exports—a power that is expressly prohibited to the States by the constitution. If, therefore, Congress have not the control of all waters, naturally navigable, that extend into two States, they have no power “to regulate commerce among the several States,” that cannot, at any time, be defeated by the [34] States themselves. These naturally navigable waters are the only avenues, except roads and canals, for carrying on commerce. The roads and canals may all be the private property of the State—and if navigable rivers are also the property of the States, then the States have control of all the avenues of commerce, and, of course, by means of tolls for the use of those avenues, can, in defiance of Congress, regulate commerce as they please.

Again—if these rivers belong to the States, and Congress make improvements in them, the States have a right to say, we do not like the plan of these improvements, and we will, therefore, prostrate them. But, will it be pretended that, if Congress should improve the navigation of the Allegany, as proposed in the report before mentioned, New York and Pennsylvania may prostrate the dams, buoys, and locks at pleasure?

Or, again—if these rivers belong to the States, then the States, after Congress shall have made improvements in them, may say, we are very thankful to Congress for having expended so much money in benefiting our property—we shall now be able to charge a higher rate of toll than formerly, for the use of our rivers, and shall derive greater profit from the expenditure which Congress has gratuitously, (though rather inconsiderately,) made upon our waters. Can this doctrine be true? It must be true, if these rivers are the private property of the States in which they lie, because the States certainly have a right to do what they will with their own property. On the other hand, if they are not the property of the States, then they belong to Congress—that is, so far as the right of way over them is concerned; and Congress have the exclusive control over that right of way.

If it should be said that the rivers belong to the States, but that Congress may assume the control of them, on the principle of taking private property for public use, the answer would be—that Congress, in that case, must pay the State the value of the river—and that value would probably be estimated by the amount of tolls that the State might derive from the use of the river. But never, we presume, have Congress thought of such a thing as making compensation to a State, when they have improved a river and declared it free to all citizens of the United States.

Again—if the improvements made by Congress in rivers, are merely tolerated by the States, and the general government have not within itself the legal right, the constitutional power, to control the navigation of them, then the agents of Congress are, legally, trespassers, whenever, in making the improvements ordered by Congress, they touch private property on the banks of the rivers. They also commit a nuisance, whenever they erect a [35] dam in the bed of a river—for these agents are, in these cases, mere volunteers, acting without license from the only competent authority. Supposing Congress should send men to repair the banks of the Erie canal, or to put locks in it, without the permission of the State of New York, and those men should go upon the adjoining lands for stone and earth—would they not be trespassers? And would it not be the same in the case of the Allegany river, if that river belongs to the States of Pennsylvania and New York?

Again—if these rivers belong to the States, the States have the same right to shut them up entirely, that they have to shut up their canals and roads. They may shut them up by dams, and if by dams, by embargo laws, or otherwise, at pleasure. Virginia, for example, may, by law, forbid boats that come down the Muskingum, and other rivers within the State of Ohio, from entering the Ohio river. (It was decided in Handley’s case, [5 Wheaton 374,] that Virginia still owned to the northwest bank of the Ohio river.) Indiana, Michigan, and Pennsylvania may also forbid Ohio boats the use of their waters—and thus they may shut Ohio up within her own boundaries; or, Ohio may, if she pleases, shut herself up, by forbidding the boats of other States from coming within her borders—and thus make herself at once an independent nation, so far as commerce is concerned. All the other States of the union might do the same. We should, in short, present the paradox of a general goverment, with power “to regulate navigation among the several States,” while the several States had, at the same time, power to prohibit such navigation entirely. And the consequence probably would be, that we should very soon become twenty-six independent nations for all purposes of commerce—and when we shall have become so for purposes of commerce, we shall not be long in becoming so for all other purposes. The prohibitory and retaliatory legislation of the States of New York, New Jersey, and Connecticut, which was quashed by the decision in Gibbons & Ogden, gave us a foretaste of the manner in which the several States would “regulate navigation” among themselves, if they had the power.

It was further decided, in Gibbons & Ogden, (page 210) that the power of the States “to regulate their domestic trade and police,” did not extend to any act that might conflict with the perfect freedom of navigation among the States. No matter how important to the wealth and prosperity of the State, such “domestic trade and police” might be, it must not be suffered to come at all in conflict with the freedom of navigation among the States. This was decided to be the law, even in cases where Congress had [36] made no specific regulations—it being considered that where Congress had not specially regulated navigation, they intended it should be entirely unrestrained.

The Court even said (pages 205 & 6,) that the States could not execute their quarantine laws, against any special provisions of Congress—and Congress seem to have had the idea that the State laws could not be executed without express authority from Congress—for by enacting that the State quarantine laws should be observed, they proceed on the supposition that State power was of itself incompetent to give those laws any vitality.

This decision then, in Gibbons & Ogden, is, of itself, all-sufficient for our cause. It covers all “navigation among the several States,” whether on rivers, lakes or tide waters, and gives exclusive control of such waters to Congress—that is, so far as the use of them for navigation is concerned.

On the supposition, then, that the Maumee is a “navigable” river, and extends into two States, the complainant has at least five, and perhaps six, distinct grounds, on either one of which he apprehends he might securely rest his case. These grounds are:—

First—The ordinance of 1787, in its character of an absolute law—re-enacted as it has been under the Constitution by the law of 1789, and the law of April 30, 1802.

Second—The ordinance, in its character of a compact—ratified as it has been by Ohio—that is, if it now have any validity as a compact in relation to these rivers.

Third—The incapacity—imposed upon the Legislature of Ohio, by the State Constitution—of transcending the ordinance.

Fourth—The original right of property, in these rivers, necessarily remaining in the United States, because never specially or impliedly relinquished to Ohio.

Fifth—The express reservation of this original right of property, as made, on the part of the United States, by the various statutes that have been referred to. And

Sixth—The exclusive power of Congress over all “navigation among the States,” according to the decision in Gibbons & Ogden.

The question that next arises is, what constitutes a “navigable river,” within the meaning of the ordinance, the several laws of Congress, and the Constitution?

And, first, what constitutes a navigable river within the meaning of the ordinance, and the several laws that Congress have passed in relation to these western rivers?

There are but two classes of navigable rivers known to the common law of this country—one, in which the tide ebbs and [37] flows—the other, in which there is no tide, but which are nevertheless navigable in fact.

It is evident that the makers of the ordinance and laws did not intend the former class, when they legislated in regard to the “navigable waters” of the N. W. Territory—because they knew that the tide ebbed and flowed in none of them. They must therefore have meant the latter class, to wit: those that were navigable in fact.

The question then arises—what degree of navigability is necessary, in a fresh water stream, to make it, or rather the right of way over it, public property? Probably no better rule can be adopted in this case, than that which has been adopted by the old States in regard to their streams of this kind. Indeed this rule must be adopted, or an entire new one be established, for this and similar cases, without regard to precedent. And what new rule can be created, if this be discarded.

In Shaw vs. Crawford, (10 Johnson’s N. Y. R., p. 236,) it was proved only that the river had been used for rafting—and yet it was held to be a navigable one in the eye of the law. In that case, the Court (Kent being Chief Justice, and probably delivering the opinion) said, “When a river is so far navigable as to be of public use in the transportation of property, the public claim to such navigation ought to be liberally supported. The free use of water, which can be made subservient to commerce, has by the general sense of mankind, been considered a thing of common right.”

Kent, in his Commentaries, also (vol. 3, p. 344) says: “The public, in cases where the river is navigable for boats and rafts, have an easement therein, or a right of passage as a public highway.”

Spencer, Ch. J. (17 Johnson 209 and 10) quotes the following passages, for the reason, as he says, that the treatise from which they are taken, “is universally considered of high authority, of itself, and because it defines, with more precision than any other work, what constitutes a public river.” “Lord Hale, in his treatise de jure maris et brachionum ejusdem, edited by Mr. Hargrave, (pages 8 and 9) says: ‘There be some streams or rivers, that are private, not only in propriety and ownership, but also in use, as little streams or rivers, that are not a common passage for the king’s people: Again, there be other rivers, as well fresh as salt, that are of common or public use for carriage of boats and lighters; and these, whether they are fresh or salt, whether they flow and reflow, or not, are prima facie, publici juris, common highways, for a man or goods, or both, from one inland town to another.’ ‘Thus, (he observes) the rivers of Wey, of [38] Severn, of Thames, and divers others, as well above the bridges and ports as below, and as well above the flowing of the sea, as below, and as well where they are become private property, as in what parts they are of the king’s property, are public rivers, juris publici; and therefore, all nuisances and impediments of passage of boats and vessels, though in the private soil of any person, may be punished by indictment, and removed.’ ”

In the same case, (page 211) Ch. J. Spencer adds, that “The distinguishing test between those rivers which are entirely private property, and those which are private property subject to the public use and enjoyment, consists in the fact whether they are susceptible, or not, of use as a common passage for the public.” And he adds that “this distinction was adopted by Chief Justice Kent, in Palmer vs. Mulligan, (3 Caines’ Rep. 319.)”

The same doctrine is laid down in numerous other cases, (20 Johnson, p. 100; N. Y. Digest, vol. 2, p. 299; Johnson’s N. Y. Digest, vol. 2, p. 8; also Arundel vs. McCulloch, 10 Mass. R., p. 71; and in Wheeler’s Practical Abridgment of Am. Com. Law Cases, vol. 8, p. 369 to 375, where most of the American cases are cited.)

We see not upon what ground any abatement from, or modification of these principles, can be made in determining what rivers were intended, by the ordinance and laws of Congress, to be made “public or common highways,” for the people of all the States—unless, perhaps, in one single particular, to wit: The case of a river, or other water, if any such there be, lying entirely within the limits of one State, and navigable for so short a distance, or lying in so disadvantageous a position, as to be useless to the people of any other State than that in which it lies.

It is true, that the doctrine of these cases may perhaps at first view, appear rather rigid to be applied against a State where her sovereignty over the streams within her limits is in question. But no other rule can be applied, unless a new one can be created—and, as was before suggested, what are the principles on which a new rule can be founded, if this old one be given up? It is, moreover, far more proper that, under the ordinance and laws of Congress, the rule of interpretation, as to what constitutes a navigable river, should be applied strictly against the State, than strictly against the General Government, because, on the one side depend the rights of the people of the whole United States, in common with the people of Ohio—on the other, depend only those of Ohio to the exclusive possession. Furthermore, the General Government undoubtedly meant to reserve a right of free navigation over all rivers that could be useful to the people of the United States, for purposes of trade. Besides, if [39] it should be found that the rule adopted by the Court was more strict against the right of the State than Congress intended, Congress can give a dispensation from the rule, to such an extent as they see proper. But if, on the other hand, it were decided too strictly against the right of the United States, the people of the United States would have no remedy, because Ohio would of course refuse to give back any sovereignty of this kind, which had once been adjudged to her. If it should be said that the U. States would be no more disposed to relinquish their sovereignty over any particular river to Ohio, than Ohio would to the General Government, that argument would go to shew that the river was one which the United States had always intended to include in their reservation—because it is not to be presumed that Congress are any more grasping of power now, than they were at the time of passing and re-enacting the ordinance of 1787, or the laws that have been referred to. In short, Congress have no interest to retain, and therefore cannot be supposed to wish to retain, the control of any rivers except such as it is for the welfare of the whole country that they should retain: and all such they must be presumed to have intended to reserve by the ordinance and laws. On the other hand, it is evidently for the interest of Ohio, for obvious reasons, to get the control of all the rivers that she possibly can, both great and small, and to keep the control of all she can get. Congress, by reserving “all” navigable rivers within the territories that once belonged to the United States, have shewn that they intended, as they had an undoubted right to do, to retain in their own hands the power of judging what waters it will be for the interests of all to have remain “public highways.” The States therefore can claim authority over none of these “navigable waters,” except by virtue of express grants from Congress.

The intention of Congress, as to the extent of their reservations, may be gathered from the law of March 26, 1804, (Story’s Laws, vol. 2, p. 929, sec. 6,) in regard to the waters in the Indiana territory. In that law, they include every water, great and small, that can be called “navigable.” Their language is “all the navigable rivers, creeks and waters.” The Courts can make no exception where the law thus enumerates every thing. Congress have since made no special grants to the States of any of these waters. Every navigable one, then, still remains as the laws of Congress left it—that is, subject to the sole control and disposal of Congress.

But it is not necessary for our case, that we should insist upon this strict rule against Ohio, however correct the rule may be in itself. The Maumee, in its natural state, is navigable, not merely [40] for rafts, but for keel boats of large size, and for small steam boats. It is also capable of being cheaply improved so as to be navigable by craft of an hundred or two hundred tons burden. Neither is the navigation confined to a downward passage. The boats used on it, pass and repass, upwards as well as downwards, a distance of more than an hundred miles.

Again—The Supreme Court of Ohio decided (5 Hammond 416) that the Muskingum was a navigable river, within the meaning of the ordinance—and that river is not materially, if any, larger than the Maumee.

So much for what constitutes a navigable river within the meaning of the reservations expressed in the ordinance and laws of Congress. There is another question, viz: as to what is a navigable river within the meaning of the Constitution, or within the decision in Gibbons & Ogden?

On this point there seems to be no limitation. The decision is that the power of Congress embraces the whole subject, “the entire result,” of “navigation among the several States.”—(page 209.) It of course embraces all rivers, however small, that extend into two States, and that are used and useful for “navigation.” The Court say, (9th Wheaton 197,) “The power of Congress, then, comprehends navigation within the limits of every State in the Union—so far as that navigation may be, in any manner, connected with commerce among the several States.”

In the legislation, which Congress has had in pursuance of their power to regulate “navigation among the several States,” we may also find a definition, sufficient for our purpose, of what constitutes a navigable river. In a law that was passed at the first session of Congress under the Constitution, (Story’s Laws, vol. 1, p. 40, sec. 22,) we find a provision for licensing vessels of only five tons burden. Whatever therefore may be said of still smaller streams, all that are capable of being navigated by craft of five tons burden, must be considered as rivers of the United States. The Maumee, in its natural state, is navigable for craft of five or ten times the necessary tonnage—and can easily be made navigable for boats of twenty or forty times that size.

In another law passed May 1st, 1802, (Story’s Laws, vol. 2, p. 873, sec. 4,) Congress authorized a Collector’s office at Marietta on the Ohio, and, in the words of the law, “established a district, to be called the district of Marietta, which shall include all the waters, shores and inlets of the river Ohio, on the northern side, and the rivers, waters and shores connected therewith, above or to the eastward of, and including the river Scioto, from the mouth thereof upwards as far as the same may be navigable.” Now the Maumee is a larger river than the Scioto—and the extent of [41] navigation on the Maumce, and its several branches—the St. Mary’s, St. Joseph’s, Auglaize and Tiffin river or Bean creek—is probably twice as great as that on the Scioto. Now, although there may no longer be customs collected on rivers of the size of the Scioto, and some of the others embraced in this law, it by no means follows that Congress have surrendered their power over the navigation of them—because, according to the decision in Gibbons & Ogden, it is a part of the system adopted by Congress, to leave all navigation entirely free, which is not specially regulated. The system extends as much to what is left free, as to what is regulated—(9th Wheaton 209.) By the 8th section of this same law of 1802, that established the district of Marietta, (Story’s Laws, vol. 2, p. 875,) Congress enacted that “no duty on the tonnage of any boat, flat, raft or other vessel of less than fifty tons burden shall be demanded or collected,” &c., “on the Mississippi or any of its branches.” Now it cannot be inferred from this enactment that Congress intended to abandon, or surrender to the States, the control of all navigation carried on by craft of less than fifty tons burden, merely because they liberated such craft from tonnage duty. On the contrary, they intended to give a special protection to such craft against regulations, that would be more vexatious to commerce, than profitable to the nation. And when, by the 4th section of this law, (page 873,) they included the Scioto river within the Marietta district, it is not likely that they supposed that that river was navigated by craft of fifty tons burden, or that they expected to derive one dollar of duty from the navigation of that river—but that they only intended to secure to that navigation the protection of the laws, by putting it under the care and supervision of an officer of the general government.

This incidental mention of the Scioto river, in this law of Congress, is a test, sufficient for our purpose, of what constitutes a navigable river, and one from which, it seems to the complainant, there can be no appeal.

Again—If the regulation of the smallest craft that sails from one state into another, do not belong to Congress, it must belong to the states—and then Congress would not have “exclusive” power over “navigation among the several states.”

Again—The court say (9th Wheaton 194) that “commerce,” (or navigation, for commerce includes navigation,) “as the word is used in the constitution, is a unit, every part of which is indicated by the term.” And still again (page 215) the court say, “The subject of navigation is transferred to Congress, and no exception to the grant can be admitted, which is not proved by the words, or the nature of the thing.”

[42]

Further, still—It was decided, in Gibbons & Ogden, that commerce means not merely traffic, but intercourse also (page 189)—and that the power of Congress extends to vessels employed merely in the transportation of passengers, (page 215.) All rivers, therefore, that are of sufficient depth only for passenger boats, must be embraced by the power of Congress.

Again—The court say specially that “the deep streams, which penetrate our country in every direction, and pass through the interior of almost every state in the Union,” are embraced by the power of Congress, (page 195.) By “the deep streams” here mentioned, must have been meant simply navigable streams. Perhaps, however, it may be argued that no streams are here intended other than those that “penetrate the country” directly from tide waters. But this would be a very narrow view of the subject, and founded upon any thing but practical reason. Such a construction would take from Congress the control of navigation on all our great lakes. It would also take from Congress the control of navigation on the Mississippi and its branches, if there were but such an interruption of the navigation, by falls at the mouth of that river, as to make a transhipment of goods necessary, within the body of a state, from the tide water vessels to the river craft.

But the court have superseded all necessity for further argument on this point, and settled every question of power pertaining to the subject, by declaring, in the broadest terms, (page 195,) this doctrine, that the power of Congress extends to all navigation, except that which is “completely internal,” “within a particular State.” This doctrine covers the whole ground that the complainant contends for. It leaves nothing to be argued or questioned, except the simple fact, whether a particular navigation extends into two states?

In the laws of Congress, establishing Collector’s Districts, we have an evidence of their opinions in regard to the extent of their powers, for they include in those districts all navigable waters, down to those of the smallest capacity. As, for example, in establishing the district of Yorktown, (Story’s Laws, Vol. 2, p. 873, sec. 1,) they enact that that district “shall comprehend the waters, shores, harbors and inlets of north and east river,” “and all other navigable waters, shores, harbors and inlets within the county of Mathews.” In the law passed in 1789, at the first session of Congress under the constitution, (Story’s Laws, Vol. 1, page 6,) establishing Collector’s Districts along the whole Atlantic coast, we find that the smallest class of waters are considered as being under the control of Congress. As, for example, (on pages 12 & 13,) in establishing the several districts in Virginia, [43] the enumeration, in one case, is, of “all waters, shores, bays, rivers, creeks, harbors and inlets.” In other cases, the enumeration is substantially the same. This minuteness of enumeration is significant. It shows the understanding of the first Congress to be, that their powers included every water, of whatever size, that could be called navigable. We see no good reason why the constitutional power of Congress over the interior “navigation among the several states,” should not be as comprehensive as over the exterior.

The navigability of the Maumee, to the extent set forth in the bill, is not attempted to be denied by the other side. On the contrary, one of the counsel for the state, admitted before the Circuit Judge, that he had himself seen a steamboat or steamboats on the river, within the distance described in the bill. Nor is it denied that this river has been constantly used, from the first settlement of the country, up to the present time, as the common and principal thoroughfare for the transportation of the produce and merchandize of the country, as set forth in the bill.

Further evidence of the navigability of this river may be found in a report, made in 1822, to the Ohio legislature, by the Hon. James Geddes, of New York, then an engineer of perhaps the very highest reputation of any in the country. He was employed by the State to examine and ascertain the best route for a canal to connect Lake Erie with the Ohio river. In his report, he said that a canal on one of the routes that had been contemplated by the State of Ohio, would find a “formidable rival,” in “the Wabash and Maumee navigation”—and also, that this navigation, aided by a canal connecting the two rivers, and by a canal around the rapids, near the mouth of the Maumee, would be the cheapest in proportion to its value, (that is, the best in proportion to its cost,) that could be had between Lake Erie and the Ohio river. [See history of Ohio canals, p. 44.]

In the first grant of land by Congress, for the purpose of this Wabash and Erie canal, a part of which Ohio is now constructing, we find evidence of the same fact. This grant was made to Indiana in 1824, [Story’s Laws, vol. 3, p. 1955]—and the grant was for a canal, not extending from the Wabash to Lake Erie, but only for one “to connect the navigation of the rivers Wabash and Miami of Lake Erie.” (The latter river, now called Maumee, was then usually called the Miami of the Lake.) This shews that both Congress and the State of Indiana considered the Maumee a navigable river—and that they supposed the navigation afforded by it would be sufficient for the wants of the country. But it would seem to have been afterwards found that if the river were used, a canal would have to be constructed [44] around the rapids, near the mouth of the river—that is, from the Head of the Rapids, mentioned in the bill, to that portion of the river that opens into the Maumee bay. The consequence would be, that the navigation from each end of the navigable portion of the river—that is, from Fort Wayne westward to the Wabash, and from the Head of the Rapids eastward towards Lake Erie, would have to be by canal. If, therefore, the river, between the Head of the Rapids and Fort Wayne, were used under these circumstances, a transhipment of goods from canal boats to steamboats, and from steamboats to canal boats, would be necessary at each end of the hundred and twenty miles, for which the river is here navigable.* In order also to make the navigation of the river constant through the season, for boats of the necessary burden, some expenditures in improving the river would be necessary. The distance by the river would also be thirty or forty miles greater than by a direct route. It was undoubtedly for these reasons that it was deemed best to make a canal for the whole route from “the navigable waters of the Wabash to those of Lake Erie,” and avoid the necessity of transhipments altogether. And by a law of March 2, 1827, [Story’s Laws, vol. 3, p. 2064,] Congress made a further grant of land, and authorized such a continuation of the canal.† Now, in all this Congress have manifested no intention of surrendering their right to the navigation of the river—nor have they made any admission that the river was not navigable for this hundred and twenty miles. They have, at most, only expressed the opinion that in making a continuous and constant navigation from Lake Erie to the Wabash, it was not expedient to avail of this extent of river navigation, which was circuitous, and which, being situate between two sections of canal navigation, would require transhipments at each end. The first grant being merely for a canal to connect the Wabash and Maumee rivers, is conclusive evidence that both Congress and the State of Indiana considered the Maumee not only a navigable, but an important river.

But in fact, Ohio herself has admitted the navigability of this river, by forbiding its obstruction. The Legislature, on the 20th March, 1837, passed an act entitled “An act to incorporate the Defiance Bridge Company, on the Maumee river.” By this act they licensed the building of a bridge across the river, about three or four miles above the place where the commissioners now [45] propose to erect their dam. And, in the 7th section of the act, they inserted this proviso, to wit: “Provided always, that the navigation of said river by steamboats or other craft, be not impeded or obstructed by the erection of said bridge.” [Local laws of Ohio, vol. 35, p. 279.]

We have now, we think, certainly produced evidence enough to make out this river a “navigable” one, within the meaning both of the ordinance and laws of Congress, and of the constitution. We will answer one or two objections, and then leave this part of the subject.

It has been argued, that because there is an interruption in the navigation by rapids near the mouth of this river, it is not to be held navigable above, although it is navigable in fact. But such a doctrine would shut up the Mississippi and its branches, if there were but falls at the mouth of that river. It would also shut up all the navigable lakes and waters above the falls of Niagara. The test of a navigable river is its usefulness for navigation. Falls at the mouth of a river may more materially diminish its usefulness then falls near its head—but unless they entirely destroy its usefulness, the river remains a navigable one for such distance as it is useful. Wherever the navigation of a river is interrupted by falls, the navigable portion above the falls, is, to all practical purposes, another river, and, as another river, its navigability is to be tested by the same rule that the navigability of other rivers is tested—that is, by its usefulness. The only reasonable doctrine then, and the only one consistent with the principles on which the law of navigable rivers is founded, is this, that where a river, in any portion of its course, is navigable for such a distance, and to such a degree, as to be useful for navigation, it should, for such distance, be held navigable in law. The Maumee, above the rapids, is, in its natural state, navigable continuously, and without interruption, for more than one hundred miles. This distance, we suppose to be amply sufficient for all legal purposes. But it also—as ought to have been set out in the bill—has four navigable branches, which fall into it between the Head of the Rapids and Fort Wayne: These branches are the Auglaize, Tiffin river or Bean creek, the St. Mary’s, and St. Joseph’s rivers. These branches are navigable, several months in the year, for boats of considerable size, about fifty or sixty miles each—thus making, with the main river, between three and four hundred miles of continuous navigation. The complainant, however, does not rely upon the navigability of these branches, (if the other party object to it,) because it was not set forth in the bill—still, he is ready to produce what will probably be satisfactory evidence of the fact to the court, if the court desire it.

[46]

It may perhaps also be argued, that because the navigation of the river is impeded by low water during a period in the summer, it is not to be considered navigable. But it is believed that the navigation by small boats is at no time suspended. Still, if it were, it is not seen how that could affect the question. The test of usefulness, before referred to, is applicable to this case, as well as to all others. If, then, the river is navigable for such a length of time, as to be useful for navigation, that is sufficient. That such is the case here, there is no doubt. The River is navigable so as to be highly useful at least six or seven months in the year. Its usefulness is proved by the fact that it is used—a kind of proof from which there is no appeal. The Ohio river, for a considerable period in almost every season, is so low as to be very nearly, if not entirely useless for navigation—but will it be said, that therefore the Ohio is not a navigable river in law?

In addition to all the evidence that has been presented, of the navigability of this river, we have found two acts of Congress, specially embracing this river. These acts were not discovered until all the preceding evidence had been prepared. Although we suppose these laws would alone have been sufficient for our purpose, we have thought best, even at the risk of being tedious, to present the evidence already given, in order to place the matter more entirely beyond the reach of any possible objection.

By a law of Congress, passed March 3, 1805, (Story’s Laws, vol. 2, page 973) establishing certain ports of entry, it is provided (Sec. 3) “That from and after the thirty-first day of March next, all the shores, rivers and waters of Lake Erie, within the jurisdiction of the United States, which lie between the west bank of Vermillion river, and the north cape or extremity of Miami Bay, into which the river Miami of Lake Erie empties itself, and including all the waters of the said river Miami, shall be a district to be called the district of Miami,” &c. (The Maumee, it will be recollected, was formerly called the Miami of the Lake.) No objection can be taken to this law, on the ground that the whole river was not then within the “jurisdiction” of the United States, for, although the United States had not, at that time, extinguished the Indian title to all the lands in Ohio, yet they had previously extended their “jurisdiction” over the territory. The State of Ohio had previously been admitted into the Union, with the same limits that she has now, which include a large portion of this river.—(See 2d sec. of Law of Ap. 30, 1802—Story’s Laws, Vol. 2, p. 869.) Congress had also, two years before, by a law passed Feb’y. 19, 1803, (Story’s Laws, Vol. 2, p. 882,) “to provide for the due execution of the laws of the United States within the State of Ohio,” enacted “that the (whole of) said state shall [47] be one district, and be called the Ohio district,” &c. “All the waters of the said river Miami,” it will be observed, are also included in the law of 1805, establishing the “district of Miami.” The portion above the rapids is therefore included as well as that below.

As early also as March 2d, 1799, (three years before Ohio had any state rights,) Congress passed an act, establishing various districts and ports of entry, (Story’s Laws, Vol. 1, page 573,) and among others (page 585; sec. 17) they established one to be called the district of Erie, which it was enacted should include, among other waters, “the river Miami of Lake Erie.” (It appears also, that by this (pages 585 & 586,) and a subsequent act, (Vol. 2, page 873, sec. 4,) all the rivers of Ohio, many of which are much smaller than the Maumee, have been, and, so far as we know, still remain, included in the districts that have been established.) It was also provided by this act of 1799, (sec. 105, page 661,) that navigation might be carried on in the above districts, “in vessels or boats of any burden, and in rafts or carriages of any kind or nature whatsoever.” This shows that Congress consider their power as extending to the humblest kind of navigation.

The Complainant supposes that these acts settle all questions, both in regard to this river’s being a navigable one, and also in regard to Congress having extended their power over it. They also constitute a seventh distinct ground, on which the complainant supposes he might safely rest his case.

We will now pass to another question.

It was argued before the Circuit Judge, that Congress, by licensing the construction of this Wabash and Erie canal “through the public lands,” had impliedly given Ohio permission to obstruct this river with a dam, if it should be found convenient or necessary in the construction of the canal. But Indiana (nor Ohio, who has since taken the place of Indiana, in regard to such portions of the canal as lies within the limits of Ohio,) cannot, of course, claim by virtue of that act, to use or convert any more of the property of the U. S. to the purposes of the canal, than she was specially authorized to do by Congress. Now all the authority over the property of the U.S.—(in additiou to that of constructing the Canal “through the public lands of the U. S.”) that was granted to Indiana by the acts of Congress relating to this canal, was simply this. She was “authorized, without waste, to use any materials on the public lands adjacent to said canal, that may be necessary for its construction.” (Act, of 26th May 1824, Story’s Laws vol. 3, page 1955, and act of March 2, 1827, Story’s Laws vol. 3, page 2064.) It will be observed, on reference to these acts, [48] that this grant of permission to go upon the lands of the U. S. and “take materials,” was given only by the first of them. And the second, if construed strictly by its terms, would seem to have been an entirely new grant, and on new terms; instead of an additional grant on the old terms. In this latter view of the case, the State would not be entitled even to go upon the lands of the U.S. adjacent to the canal and take “materials,” for no such permission is given in the last act. And it is very likely to have been the intention of Congress that this should not be done—for, as by the last act, every alternate section of land, along the whole line of the canal, was granted to the State, it was not likely there would be any great necessity for the State’s going off her own sections for materials. But, however this may be, the State cannot, at any rate, enlarge the license beyond the terms of the first grant. These were simply to go upon the public lands adjacent, and take “materials.” If a State, under such a license as this, can take a legal right to obstruct, or, what is the same thing, appropriate, any portion of a navigable river, it may, on the same principle, appropriate the whole river to the purposes of the canal. This conclusion follows inevitably. And thus, according to this doctrine, whenever Congress—partially with a view of raising the price of the public lands—passes a law licensing and aiding a State to construct a Canal through them, the State, instead of constructing the canal “through the public lands,” according to the intentions and law of Congress, may make at once for the nearest or most valuable navigable rivers of the U. S.—seize upon them—dam them up at intervals, and thus convert them into State property, and levy contributions upon the navigation of the whole U. S. for the privilege of passing over them.

Again. The grant was of a privilege to construct a canal “through the public lands.” Navigable rivers are not “lands,” in legal contemplation—they are not included in surveys, or sold as lands by the acre. It is otherwise with rivers not navigable.

Again. No real or supposed necessity, if there were any, (as in this case, none is pretended, or at any rate proved—the location of the canal in the present position being evidence only of convenience not of necessity,) could avail to enlarge the terms of the grant. The grant was conditional—and like other grants by statute, was in the nature of a written contract—not to be enlarged by implication. The U. S. would give so many “lands,” on condition that Ohio (or Indiana) would construct such a canal, and in a particular place—that is “through the public lands.” If those lands, with her other resources, are insufficient to enable the State to comply with the proposal of the general government, or if the location proposed by the general government be found impracticable, then the State must decline the offer, or solicit a further [49] grant. She can no more claim, as a matter of legal right, that the U. S. give her a navigable river, or any portion of one, in addition to the original grant, in order to enable her to complete the canal, than she can that they give her an hundred thousand dollars in money, or an additional quantity of “lands.”

Again. It is unreasonable to suppose that Congress anticipated that the navigation of this river was to be obstructed—and for this reason, if for no other, that in constructing a canal from the navigable waters of the Wabash to Lake Erie, it is necessary to go out of a direct course, in order to cross this river.

But even if a grant had been made for a canal “through the public lands,” from a point on one side of a navigable river, to a point on the other side, so as that Congress must have known that the canal boats would have to cross the river, still no grant could be implied of an authority to obstruct the river—and for two reasons—first, because the grant was literally to construct the canal “through lands” only, and could not be enlarged by implication—and, secondly, because it would be unreasonable to suppose that any necessity could exist for constructing a canal in the river, inasmuch as a boat would ordinarily be presumed capable of crossing a navigable river, without the aid of any artificial structures sufficient to impede the navigation.

Again—When a river has been specially declared a “public and common highway,” (as all navigable rivers in the N. W. Territory have been,) canal boats, if they have occasion to cross them, have, by the already existing law, a right to use or cross them, as highways, and in common with other boats—but they can by no means claim that this “common and public highway for all citizens of the United States,” specially established by law, has been abolished for their sole benefit, unless they show an express law to that effect.

But it was argued that Congress must have known that water would be wanted for this canal, and that therefore they must be presumed to have intended that navigable rivers should be obstructed, if necessary to obtain it. One answer to this is, that this question, like all others, must be settled by the terms of the grant—which were for the canal to go “through lands” only. Rivers and streams not navigable, are “lands,” and it is reasonable to suppose that Congress believed there were enough of these to feed the canal. Besides, if the Commissioners wish to take water from a navigable river, they have a right to do so, by means of a wing dam, that shall not extend so far into the stream, as to be any impediment to navigation. Or they may take it out by deep cutting through the bank, provided always they do not take out so much as to impair the navigation of the river. [50] A riparian owner, on a fresh water stream, has a right to do thus much for his own use.

It was argued in the Circuit Court, that because Congress had made a grant of lands (May 24, 1828, Story’s Laws, vol. 4, page 2141) to aid in constructing another canal (called the Miami canal) from Cincinnati and Dayton to Lake Erie, in partial compliance with a memorial presented to Congress three years before by the Ohio Legislature, (See Memorial in History of Ohio Canals, page 170,) which canal forms a junction with the Wabash & Erie canal above the place where it is proposed to cross the river—therefore Congress have impliedly granted liberty to obstruct this river. But it will be remarked that in this memorial the Legislature gave Congress no intimation that the river was to be crossed, or even touched by this Miami canal. They only describe the route as “commencing at the city of Cincinnati, and terminating at the foot of the Rapids of the Miami of the Lake”—that is, on the Lake level, for the foot of the Rapids is on the Lake level. They also mention certain counties through which it will pass. But all these counties lie, in whole or in part, on the south side of the river—that is, on the same side with Cincinnati and the main body of the canal. In order therefore to construct the canal through these counties, and terminate it at the foot of the Rapids, as indicated in the memorial, it was not necessary to touch the river except at its termination—and of course it was not necessary to cross it there—for they would there form a junction with the Lake navigation without crossing the river. Congress therefore derived no intimation from this memorial, that the river was to be crossed. The object of the Legislature too, in presenting this memorial to Congress, was, not to obtain permission to cross the river, but simply to obtain a grant of “lands,” and liberty to go through those of Congress. Besides, as an inducement to Congress to make these grants, they say (page 171) that the lands of Congress, through which the canal will pass, will be “much increased in value, and command an enhanced price when they shall be brought into market.” Now this enhanced value, which is urged on Congress, by the Legislature, as an inducement to the grant, could not apply to navigable rivers—because a navigable river would not be “much increased in value,” by having its navigation destroyed or impaired. Neither the grant, nor the memorial, therefore, can be understood as applying or referring to any thing but “lands.”

Congress finally made a grant of lands in aid of this Miami canal, and of liberty to go “through the public lands”—(May 24, 1828, Story’s Laws, vol. 4, page 2141)—but the grant extended, at most, only to the Maumee river, “at the mouth of the Auglaize,” [51] which is on the south side of the river. And it is evident that Congress considered it doubtful whether the canal would extend even so far as to the Maumee river—for the grant is of a certain quantity of land “on each side of said canal, between Dayton and the Maumee river, at the mouth of the Auglaize, so far as the same shall be located through the public lands.” So that, at any rate, here is no permission given, either expressly or impliedly, to obstruct the river.

It may perhaps be argued that the canal, which Ohio is building, will be a better channel of communication than the river, and that therefore there is no harm in shutting up the river. But it may be very well doubted, one would think, whether a canal, on which boats must pay toll, and also travel at a slow rate, is a better channel than a river that is free, and on which, when it is in a navigable condition, boats may move at any speed they please. But even if the canal were the better channel, that would not alter the legal complexion of the case at all. A man has no right to shut up a public highway, merely because he has opened a better way through his own land, on which he offers to let people travel on paying him toll.

We will now take it for granted that we have established the point that Ohio has no right to erect any structure that shall actually and entirely shut up or destroy the navigation of this river.

But another question here presents itself, viz: whether the State of Ohio, without the consent of Congress, can, under any pretence, or for any purpose whatever, legally assume the power of placing in this river a dam, provided they put a lock in it, and tend and open the lock, for the accommodation of the passenger? The discussion of this question has been rendered necessary by one part of the decision of the Supreme Court of Ohio, in the case before referred to, of Hogg vs. Zanesville Co., (5 Hammond 417.) The court there decided that, although the right of way over that river was the common property of the people of the whole United States, yet the State of Ohio had a right to license the erection of a dam across it, provided a lock were put in the dam, and promptly tended and opened for the passenger. We suppose this part of the decision is clearly erroneous—for the reason that if Ohio have not the sovereign power over this right of way, she has no power whatever to license any interference with, or obstruction in it. But although we suppose there is really no necessity for argument on this point, we will cite the opinion of the Supreme Court of Massachusetts, as given in Commonwealth vs. Charlestown, (1st Pickering, page 184.) The court there say “none but the sovereign (legislative) power can authorize an interruption of such passages, because this power alone has the right [52] to judge whether the public convenience may be better served by suffering bridges to be thrown over the water, than by suffering the natural passages to remain free.” And again, in the same case, (page 185,) “There must be some act of sovereign power, direct or derivative, to authorize any interruption of them.”—The principle which, in this case, was held to apply to bridges, would apply equally to dams, because the public would be incommoded by dams, unless the locks were opened, in the same manner that they would by bridges if the draws were not raised.

It was held in this case in Massachusetts, that the State Legislature was the “sovereign power” over the navigable river then in question. This part of the decision may or may not be correct. The decision was given before that in Gibbons & Ogden, and no question was raised, either by the counsel or the court, as to whether the control of their waters had not been surrendered to congress by the constitution; nor do we know whether the waters over which this bridge was built, were accessible from the waters of any other State. We therefore can neither admit nor deny the correctness of that part of the decision, which assumes that the State Legislature was the “sovereign power” over them. We cite the opinion only in support of the principle, that the consent of the “sovereign power”—in whatever hands it may in any particular case reside—must be obtained in order to justify bridges with draws, or dams with locks, across navigable rivers.

It has been shown, we trust, in the former part of this argument, that whether the old States still have, or have not, the sovereign power over their streams, those States that have been formed out of territory that once belonged to the United States, have not the sovereign power over the navigable streams in their limits; but that the United States are still the sovereigns over, and have the exclusive control of, all navigable waters in these last mentioned States—that is, so far as navigation over them is concerned. The State of Ohio, then, having no sovereignty of her own over the navigable streams within her limits, and having never had any discretionary power over them delegated to her, to authorize her to license dams or other obstructions on such conditions as she may see fit, she has no right to authorize them in any way, or on any conditions whatever. By thus licensing them, as in some instances she has done, she has been constituting herself the attorney of the United States—has been assuming to act for the United States, and has in reality been usurping an unauthorized discretion and control over the property of the United States. She has no more right to assume this discretion, than the same number of any other individuals have. She has no more rightful authority over the navigable rivers of the United [53] States, than she has over the post offices of the United States within her limits. All her legislative acts, therefore, authorizing individuals to construct dams across the navigable rivers of the United States, are utterly and palpably void—and it is of no consequence what securities she took from those individuals, that the locks should be opened, or what penalties she imposed for neglect to open them. Her whole legislation on the subject has been a work of supererogation. She might, with as much propriety, have assumed the power of licensing an individual to lock up the post offices or court houses of the United States within her limits, on taking from the individual so licensed a promise that he would open them again at all proper times, or on affixing such penalties to his neglect to open them, as she might think would prove sufficient to induce him to open them. And her statute penalties for neglect to open locks in a dam that she has licensed, are as void as would be her statute penalties for neglect against the individual before supposed, whom she should license to lock up the post offices and court houses of the United States, or as would be her statute penalties against trespasses upon the public lands within her limits. She is in no way the agent or attorney of the United States, either for affixing the penalties to trespasses upon the property of the United States, or for granting licenses to individuals to occupy, enjoy or control the property of the United States;—whether that property consist of navigable rivers, post offices, court houses, wild lands, or any thing else.

The inconsistency of the State Court is most obvious. They admit, in the case referred to, (5 Hammond, 416) that the “navigable rivers” of Ohio are “common highways”—that “every citizen of the United States has a perfect right to the free navigation of them”—and that “with this right the Legislature cannot interfere.” They admit also, (pages 421 and 423) that a dam, with a lock, is, of itself, a nuisance; And still they say that the Legislature of Ohio, who, they assert, have no power to “interfere with this right of way,” can yet cure a nuisance in it, or, what is the same thing, maintain a nuisance in it. The error of the Court consists in assuming for the Legislature of Ohio, a discretion over a highway belonging to the United States. On this principle, the State Legislature would have a discretionary power over all property of the United States, that should happen at any time to be within the limits of Ohio.

The State of Ohio, then, has no right to license the erection of a dam by individuals, on any conditions whatever, across a navi gable river within her limits, over which the United States, or the citizens of the United States, own the right of free navigation. Not having the right to license the erection of such dams by [54] individuals, has the right to erect them herself, on any conditions whatever, without the consent of Congress? It is difficult to imagine how she can have the power to build them herself, when she has not the power of licensing them to be built by individuals. A dam that should obstruct the navigation, unless it were authorized by the sovereign power, (which in this case is Congress) would be as clearly a nuisance when erected by a State, as when erected by an individual. It would be as clearly a trespass for a State, or persons acting under State authority, to injure a post office or court house, belonging to the United States, as for a mob or an individual to do it. It is, therefore, difficult to conceive how the State of Ohio can interfere with, or exercise any more control over this right of way belonging to the U. States, than an individual, or than the same number of other individuals, citizens of the United States, as those composing the State of Ohio, might do. This right of way is the common property of all the citizens of the United States: as much so as are the mails and post offices in the State of Ohio; and as such, it is under the exclusive control of Congress. Neither the citizens nor State of Ohio have any peculiar property in it, or control over it. Ohio, in short, stands on the same level in relation to this public right of way, that an individual does. She is in no way known in relation to it, in her capacity as a State. Her citizens are but so many citizens of the United States, having privileges in common with the other citizens of the United States, in the use of this river; but having no peculiar property in, or control over it. Congress have the sovereign power over this right of way, and there is no secondary or subordinate power over it, resting in the State of Ohio. There are, in fact, no intermediate rights, either of property or use, to this river, between those of the United States on the one hand, and those of the riparian owners on the other. The United States own the right of way over these streams, and the riparian proprietors own (subject to the right of way) every thing else that pertains to them as streams. They own the bed of the streams, the right to fish, and the right to use the water, as it flows over their lands. And there are no intermediate rights between those of these two owners. None such are any where expressed, or necessarily implied. They therefore do not exist. Now Ohio may take, for the public use of the State, any property of her own citizens; but she can take no more than the property of her own citizens. She cannot take the property of the United States. In regard to these streams, therefore, she can assume only those rights of property and use, which belong to the riparian owners. She cannot enlarge those rights, without encroaching on the rights of the United States, because the [55] riparian proprietors have all the rights of property pertaining to these streams, except what belong to the United States. There are no intermediate rights in existence. Now a riparian owner confessedly has no right to put a dam across a navigable river. The State Court expressly declares such to be the fact, in the case before cited, (5 Hammond 421 and 423.) The State of Ohio then, of course, can have none, because she can have no larger or other rights of property or use in the stream, than those she took from the riparian owner. Dams, then, that should be erected by the State of Ohio, would be as much nuisances, as those that should be erected by the preceding owner.

In order to support the views of the other side, upon this point, it would be necessary to show, that, between the right of way, (belonging to the United States) on the one hand, and the rights of the riparian proprietor on the other, there existed an intermediate right—that of damming up the river: And that this right of damming belonged, or might belong, to a third party—(which party, in this case, is the State of Ohio.) But who ever heard of the right of damming, as existing separate from all the other rights pertaining to navigable streams? Surely no one. The right of damming, or of keeping open a river, is a necessary incident to the right of way—otherwise the owner would have no security for the enjoyment of that right. The way might be dammed up and obstructed, and he would be without remedy. The right of Congress, too, “to regulate navigation among the several States,” includes necessarily a right to keep open navigable waters—otherwise “navigation among the States” might be defeated by the States, in defiance of Congress. This Court virtually asserted the same doctrine, at its last term, in case of U. S. vs. Combs, (12 Peters 78) where it said, that “any offence, which interferes with, obstructs, or prevents commerce and navigation (among the States) may be punished by Congress, under its general authority to make all laws necessary and proper to execute their delegated constitutional powers.”

But it is said that if there be a lock in the dam, and the lock be really tended and opened promptly for the passenger, there is no nuisance. But would such a dam be a nuisance, if it were erected by an individual, without his being specially licensed by the sovereign power—the owner of the right of way? Most certainly it would. The State of Ohio has repeatedly said so, because she has repeatedly assumed to be the sovereign power, and to give or withhold licenses to individuals to build such dams, thus virtually declaring that the dams of individuals would be nuisances, unless specially authorized by the sovereign power. The State Court also says the same (5 Hammond 421 & 423)—the [56] Massachusetts Court says the same of bridges, (1st Pickering 184; 2 do. 39; 4 do. 460; 9 do. 142;) all Courts say the same. Yet, in no respect, as has before been shewn, does a dam erected by Ohio, or licensed by her to be erected, across a navigable river of the United States, without authority from the sovereign power, (that is, Congress,) differ from one erected by an authorized individual.

But, admitting for the sake of the argument, that if the lock were tended and opened, there would be no nuisance—still, the question, even then, whether there be or be not a nuisance, is made to depend entirely upon the contingency of the lock’s being opened. Now the lock will not open itself—and we cannot know beforehand that any individual will open it—and yet, unless it be opened, it is admitted to be a nuisance. So that the public enjoyment of the right of free passage, in this case, is made to depend entirely upon the mere will or ability of some person, who is unknown to the law, to open the lock, or, what is the same thing, his mere will or ability to make a passage.

What then is the amount of this doctrine, that if the lock be opened, there is no nuisance? Why, it is this, that any unauthorized person, or at least any riparian owner, may, of his own mere motion, erect a structure, which is, of itself, an obstruction, in a navigable river belonging to the United States, and compel all the citizens of the United States to depend, for their passage over their own “highway,” upon his mere will or ability to remove that obstruction, (that is, open the lock, or make a passage,) whenever they may wish to pass. The law cannot remove the obstruction, until the intentions of this individual, in regard to opening it, have been judicially inquired into—and if it should be found that his intentions probably, (for they could not be ascertained certainly,) are to remove the obstruction, (that is, open the lock,) whenever it may become necessary, then the obstruction itself must remain. The public, in the meantime, that is, until they actually arrive at the lock with their freight, must be content to derive such consolation as they can from what has been judicially decided, or, more properly, judicially conjectured, to be the man’s intentions in regard to opening it. When they arrive there, if he open the lock, well—but if they find that his intentions have been mistaken, that he intends not to open it, why then they must either make their way through by force, or let their freight remain where it is, until the obstruction shall be removed in due process of law. And then, if they have suffered any damages by the detention, they must recover them of the man, who erected the dam—provided always he remain where he can be reached, and have the means of paying damages—for otherwise, the sufferers must [57] pocket their loss. All this they must submit to, merely because the law chose rather to occupy itself with what it was pleased to conjecture might be the man’s intentions, than to take notice of such material things as dams, locks and obstructions in a “common highway.”

Such is the whole amount of the doctrine that any person or State, unauthorized by Congress, can possess themselves of the right to shut up the “common highways,” the “navigable rivers” of the United States, by merely expressing intentions to open or make a passage, whenever the citizens of the United States may wish to pass. Such a doctrine would take the rights of the whole citizens of the United States out of the keeping of the laws of the United States, and expose them to become the sport of contingencies, resting in the mere will or ability, in the undiscoverable intentions, in fact, of individuals unknown to the law. Is it possible that, after having had our rights guarantied to us by the paramount law of the country, they can be lawfully seized upon in this manner, by any subordinate power, that may please to do so, and we be thrown back, for our enjoyment of those rights, upon the mere will and pleasure of unlicensed and unknown persons? The idea is preposterous. If such a doctrine were to prevail, any unlicensed individuals might put chevaux de frize across the Bay of New York, and compel every vessel that should come in, to depend upon them to open and make a passage. They would have as much right to put such an obstruction across the Bay of New York, or across the Mississippi river, as across the Maumee river—and any indifferent or unknown persons would have as much right to do it, without the consent of Congress, as would the state of New York, or the states lying on both sides of the Mississippi.

But it may be said, (it is in fact so said by the State Court,) that if the lock should actually be opened, no one is injured. For the sake of the argument, be it so—but if it be not opened, then some one is injured. Now, since the opening of the lock for the passenger, is an affair to take place at some time subsequent to the erection of the dam, and as we cannot know whether the lock will be opened, until it actually is done, there is all the time from the erection of the dam to the opening of the lock in every individual case, during which all the rights of the public to a free passage, are in a state of uncertainty—they are not in the condition in which the law left them, but are in the keeping and at the mercy of the mere intentions and non-intentions of an irresponsible usurper. The community hold their rights on sufferance from this usurper—and if the doctrine we are arguing against be true, these rights cannot be taken out of his keeping, until he has further [58] violated them by actually delaying men on their passage. This whole doctrine is pre-eminently absurd. It is as illegal for any man, or any individual state, thus to usurp the keeping, the custody, of the rights, which belong to men by virtue of the laws of Congress, as it is to actually trample upon those rights. It is a violation of those rights, to take them out of the keeping of the laws of the United States, and assume the custody of them to themselves. A man, who should without license, take his neighbor’s money, might, with the same propriety, say: “Why, surely there is nothing illegal or wrong in my simply taking this man’s money, for he may rest assured it is my honest intention to return it to him whenever he needs it. I will not delay a moment to do so, whenever he says he wants to use it. But, until he does want to use it, he certainly ought not to object to my keeping it, and deriving what benefit I can from it to myself—especially as there will not be the least harm done to him, if I do but return it to him, as I intend, when he calls for it.” An individual, who should take such liberties with his neighbor’s money, would be treated by the laws as a thief, (unless, perchance, his reasoning should be considered sufficient evidence of his insanity.) The laws would restore the money to the custody of the rightful owner, whether he wanted it for actual use or not, and without compelling him to wait and see whether the thief would restore it voluntarily, when it should be wanted. Still, the reasoning of this thief would be but a fair parallel to the doctrine, that would make it legal for an individual or for a single state to assume the keeping of the rights of the citizens of the United States, to a free and unobstructed passage over the navigable rivers of the United States, (by putting dams across them,) on merely expressing intentions to restore the navigation, or open and make a passage, whenever those citizens should wish to pass.

According to this doctrine too, any individual State might seize any treasure of the U. S. within its limits, and be supported by the laws in keeping the possession of it, until the General Government should want it for actual use, on the State’s merely expressing intentions to restore it whenever it should be thus wanted. A State might seize upon a sub-treasury of the U. S. within its limits, if we should ever have any, lock it up, appoint agents to keep the keys, and compel the sub-treasurer to depend upon these State agents for the means of going into his own office. A sub-treasury of the U. S. would not, by law, be more under the exclusive control, or in the exclusive keeping of the laws and agents of the U. S. than are the navigable rivers of the U. S. in the keeping of the laws of Congress, and of those citizens who wish to use them for purposes of navigation.

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On the doctrine too, that we are contending against, any individual, or any agent of any one of the States, might go on to Washington, and nail up or lock up the doors of the Capitol, or of the Supreme Court room, twenty times in a day during the whole sessions, (if there were sufficient cessations of passing to give him time to do it so often,) and the laws would protect him in thus nailing them up, and in keeping them thus nailed up, until the members of Congress, Judges or others, who had business there, should actually arrive at the doors and demand admission. And even then the individual would be entitled to a reasonable time in which to open them, because, if he have the right to shut them in that manner, he of course has a right to the necessary time for opening them again—and during all such time as should be necessary for opening them, the Judges, members of Congress, or other persons at the door, must wait for admission. And if he should choose to not open them at all, then they themselves must force them open, or send for some one to do it, or wait until they can be opened by legal process.

Such is the legitimate issue of this doctrine, that individuals, or individual States, have a right to assume the custody of the property of the United States, without being first licensed by the Government of the United States. The judges of the Supreme Court have no clearer right, under the laws of the United States, to an entrance into the court room, free from all let, hindrance, impediment, or interference, from all irresponsible and unlicensed persons and powers whatever, than have boats engaged in commerce to pass thus freely upon a navigable river belonging to the United States, which Congress has declared shall be a “public highway” for all citizens of the U. S.

But it will perhaps be said that if the persons, who should build a dam across a river, should but for once neglect to open the lock, or should but for once delay the passenger, the lock or dam might then be removed as a nuisance. But why then, any more than before? If the persons were but to renew their intentions of opening it in future, would they not have just the same right to keep it up that they had in the first instance? Most certainly they would, if, as is contended, their rights to keep up the lock can, in any case, depend upon their entertaining an intention to open it. And if their rights to keep up the lock do not depend upon their intentions to open it, they certainly have no right to keep it up at all—for they, of course, have no right to keep it up with the intention that it shall remain unopened, and obstruct the passenger.

But again—as to the legal effect of men’s intentions. Has a man a right, without my consent, to come upon my premises and [60] erect a gate before my door, on merely expressing intentions to open it whenever I may wish to pass through? Or would he have a right to maintain his gate there, if he should actually stand by it at all times, and invariably open it for me, so as never to cause me a moment’s delay? Most certainly not. The law will not compel me to depend, for my free ingress and egress, upon any assurances, which either the man’s words or actions, though never so strong or never so often repeated, may give. The law will forbid him to erect any thing, which, of itself, if let alone, will obstruct or incommode my free passage. Yet the contrary is the amount of the doctrine of the other side.

Or again. Has an individual a right, without the consent of the State, to erect a gate across a highway, or across a railroad belonging to the State, on merely expressing intentions to open it whenever the citizens of the State, or cars belonging to the State, may wish to pass? Has the man’s intentions any thing to do with his right to thus place a thing, which is, of itself, an obstruction, across a way that does not belong to him? Certainly not. No more right has Ohio to put such an obstruction across a way belonging to the United States, without first obtaining the consent of Congress.

The only way, then, of determining what is, and what is not a nuisance, in a navigable river, is to look at the nature of the obstruction itself, without any regard whatever to the intentions which those who erected it, may have concerning it. If the passage itself be shut up or obstructed thereby, then, unless the structure have either been authorized by the sovereign power, or have, within itself, the mind, will and ability to remove itself, to make way for passengers, it is a nuisance. Tried by this test, a dam with a lock is as clearly a nuisance as a dam without a lock. The stream is, for the time, as much shut up in the one case as in the other—for a lock will no more open itself for the passenger, than a dam will fall down of itself to make way for him. The natural navigation too—the “highway,” established by Congress, is as completely and utterly destroyed by a dam with a lock, as by a dam without a lock. All that can be said in favor of the dam with a lock, is, that it contains certain artificial facilities, that may be used as a substitute for the legal “highway.” That is, it contains certain facilities for opening a private way (for a lock being private property, is a private way) for the accommodation of those passengers, against whom the legal “highway” has been closed. But an unlicensed person has no right to obstruct a “public highway,” on merely putting gates in his own fences, so as to afford facilities for men’s passing through his private grounds. Yet such is the amount of the doctrine we oppose.

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Again: The doctrine that a dam and lock may be put in a river, without license, if the lock be afterward opened for the passenger, is equivalent to saying that unlawful acts may be done on conditions subsequent to the acts, On such a principle, the law could not take notice of an unlawful act so soon as it was committed; but must wait to see what the offender will do next; and whether he will not voluntarily repair his wrong.

Again: It appeared, in the case before referred to, (5 Hammond 421) that the proprietors of the dam could not open the lock, (until the freshet had subsided,) by reason of the sand and drift wood, with which the freshet had clogged it. All dams are liable to the same objection. To say, therefore, that a dam and lock may be built in a highway of this kind, without license, is to say, that an obstruction may be placed in it, that may, in some cases, be incapable of removal.

Again: The doctrine that a State may put dams across the navigable rivers, or “common highways” of the United States, on condition that locks are put in them, is equivalent to saying that the State, on certain conditions, but without the consent of Congress, may seize such rivers or highways, and take them out of the possession of Congress: For the erection of dams across them, by which passengers are made to depend for their passage upon the will of the State, or of the agents of the State, instead of the will and laws of Congress, is to all intents and purposes, a seizure of the river. If I lock up the doors of a man’s house, and put the key in my pocket, does not that act constitute a seizure of the house? And suppose that, in order to accommodate the occupant, I open the door for him whenever he wishes to pass through, and shut it after him when he has passed through, does that alter the case at all? Is not my possession as illegal as though I refused him a passage altogether? Most certainly it is. I have taken such possession of his house, that I can, at will, prevent his ingress and egress, and he holds the enjoyment of his own property, merely on sufferance from me. Such possession on my part is illegal. So in the case of a dam built by Ohio, across a river of the United States—even if she could let boats through without any delay at all, (instead of one of five or ten minutes, as will really be the case at best,) still she would have no right whatever to thus take possession of what belongs to the United States, and compel the citizens of the United States to depend upon her will for the enjoyment of the privileges which they hold under the laws of Congress, and the Constitution of the United States.

The reason, and in fact the only reason, that the State Court gave for its strange opinion, was, (page 415,) that “the Legislature [62] supposed they possessed this power.” The reason is almost as strange as the opinion, which it is designed to support. Are the State legislatures invested with judicial powers, to decide legal questions arising under the Constitution and laws of the U. S?—Are their acts or opinions of any more consequence, in a legal point of view, than are the acts or opinions of any body else? It is true that some of the State Legislatures, before the decision in Gibbons and Ogden, and perhaps since, have in some instances authorized bridges and dams across rivers—and these bridges and dams may have been tolerated—but it must have been because the people did not understand their rights, or because no one individual was sufficiently damaged to induce him to assume the expense and vexations of a suit. The fact, that such bridges and dams have been tolerated, furnishes no argument in favor of their legality.

Again. If the law had been that any riparian owner, or any corporation or individual subordinate to the sovereign power over navigable rivers, could without obtaining the consent of that sovereign power, put dams across them, on merely putting in locks and expressing intentions to open them, we should doubtless have had innumerable cases of the kind, (because there must have been strong inducements to build such dams for the purposes of water power,) and we should also have had numerous judicial decisions in support of these dams—but no such decision, where this point has been directly put in issue, has been produced, (or rather was produced before the Circuit Judge,) except this solitary one in the Ohio reports—(5 Hammond 410.) and even this decision is self contradictory—for one part of it is, that “the Legislature cannot interfere with this right of way”—while another part is that they can maintain a nuisance in it.

But further. It is admitted, on all hands, that no individual, not even a riparian owner, would have any right, without the consent of Congress, to put a dam across a navigable river of the U. S. however many locks he might put in it, and however well he might tend and open them. The State of Ohio stands on the the same, level, in this respect, with an individual. She has no rights, except those she takes for the public use, from individuals. Besides, all powers subordinate to a sovereign power, are on a level with each other, in the view of the laws of that sovereign power. But the case here is even a stronger one, if possible, against the right of a State, to put a dam across a navigable river of the U. S., than against the right of an individual, because in the case of an individual, if he did not open the lock, he would be liable to an action for damages, and probably exemplary damages would be given. But no redress could be obtained [63] against a State, that should neglect or refuse to open the locks, because a State cannot be sued, and a sufferer would therefore be entirely without remedy for any loss he might sustain by the obtruction. Neither could damages be obtained against agents of the State, because the State might, if it pleased, refuse to appoint agents to the duty of opening the lock. The State also, in this case, would have a strong motive to refuse to open the locks, because by so doing they would compel passengers to go in their canal, instead of the river, and pay them toll.

This consideration, that an individual, who should suffer damage from the neglect or refusal of the State to cause the lock to be opened, would be without any means of redress for that damage, appears to the Complainant an unanswerable and all-sufficient reason, why the most rigid rules of law should be inflexibly enforced against the proceedings of the State.

We have thus argued the question as if no delay at all would necessarily be occasioned to the passenger, by a dam with a lock in it—and trust that even on that supposition, we have shown that a dam would be a nuisance.

But there is another reason why such a dam would be a nuisance, even though the lock were tended and opened in the best possible manner—and that reason is, that some delay would necessarily be occasioned in going through it. This delay, it is true, might be but for five or ten minutes for each boat—but a delay of five or ten minutes, if unauthorized by the sovereign power, (which in this case is Congress) is as illegal as one for five or ten years. The State of Ohio has no more right to stop every passenger on the highways of the U. S. five or ten minutes each, than an individual has to stop passengers the same length of time, on the highways of the State. Nor has the State any more right to stop boats engaged in “navigation among the several States,” five miutes each, than she has to stop the mails coaches of the U. S. for that length of time. Such boats are as much under the “exclusive” regulation of Congress, as are the mail coaches of the U. S.

Again—a right, in one particular State to stop navigation on the navigable rivers of the United States, for five or ten minutes, would involve a right to stop it for five or ten years, and forever. It would, therefore, involve a right to prohibit “navigation among the several States” altogether; it would involve a right to pass embargo laws, and to shut up their navigable rivers entirely by dams—all of which rights would be in direct conflict with the “exclusive power of Congress to regulate commerce and navigation among the several States.”

Again—the States may as well put in a dam, and demand toll of all the citizens of the United States for the privilege of going [64] through it, as to demand any portion of their time—the latter is as much a tax upon them as the former would be.

But it has been suggested, that the right reserved by the United States to these fresh water navigable rivers, is a mere right of way, or easement of navigation—and that a riparian owner, and of course the State, may use the bed, banks, and waters of the rivers in any manner for their own benefit, provided they do not “materially” interfere with, or interrupt the navigation—and that a dam with a lock in it, if the lock be properly tended and opened, is not a “material” interruption—that, in short, the delay of five or ten minutes caused by the dam, is not “material.” The leading principles of this suggestion may, for ought we see, be correct—not so with the application. Is not any interruption in a “highway” that compels the passenger to depend for the enjoyment of his right of passage, upon an irresponsible and unknown person, “material?” If not, then it is not a material matter whether any of a man’s rights or property are suffered to remain in his own possession, or whether they be seized upon by an usurper.

Again—is not a delay of five or ten minutes “material?” If not, then a tax of five or ten cents would not be material. To say that the State has a right to tax boats to the amount of five or ten minutes time, but has not the right to tax them to the amount of five or ten cents in money, is sacrificing sense to sound.

Again—is it not absurd to speak of any interruption or delay as immaterial? Is it not as much a paradox to speak of an immaterial delay, or an immaterial loss of time, as it would be to speak of an immaterial loss of money? Besides, when we consider that this dam may cause a delay of five or ten minutes to ten, twenty, or an hundred boats in every day, and that these boats may each have on board ten, twenty, or an hundred passengers, the materiality of five or ten minutes delay becomes very materially increased.

There is another way of testing the materiality of such a dam: If one dam is not material, then any number of dams would not be. If any number be material, one is material in its proper proportion—and if one dam cannot be enjoined, then an hundred, if but built one at a time, could not be. Now, we know that a large number of dams would make the navigation of a river utterly worthless; not so with a large number of wharves, none of which should extend so far into the channel as to interfere with the navigation. Riparian owners, or the State, may, therefore, build such wharves along the whole course of a river, if they please—although they may not put in one dam across the river, [65] Such wharves are the kind of structures that are not “material,” because they do not interfere with the navigation.

There is still another test of the materiality of a dam. There can be no doubt that if a dam, with a lock, or with any number of locks in it, were built across the river Thames, just below the city of London, it would at once give rise to a rival city, and gradually remove a large portion of London commerce below the dam, and greatly reduce the value of real property in London; all solely by reason of the inconvenience of passing a lock. Can a cause capable of producing such effects, be called immaterial? If it would be material on the river Thames or the Mississippi, it would be material on the smallest river that the law had declared navigable.

Again—the erection of the dam by authority of the State, is equivalent to the passage of a law by the State, that every boat navigating from one State to another, or engaged in “commerce among the States,” shall stop at that particular point five or ten minutes. If, therefore, the State may, by a dam, stop boats five or ten minutes at one point on the river, they may pass a law that all boats shall make a halt of five minutes once in every ten rods, if the State so please, through the whole length of the river—and such a law would be as valid as the law authorizing a single dam at one point. It is no answer to this view of the case, to the say that the State will not conduct so maliciously or illiberally as to pass such a law. The question is whether she have the power? If she have the power, she may exercise it at will, and without regard to right or reason—(Congress undoubtedly has power to pass such a law.) In the case of Brown vs. Maryland, [12 Wheaton, 439 and 440,] the Supreme Court of the United States say: “Questions of power do not depend upon the degree to which it may be exercised. If it may be exercised at all, it may be exercised at the will of those in whose hands it is placed,” &c. &c. And again, [p. 447]—“The question is, where does the power reside? not how far will it probably be abused? The power claimed by the State, is, in its nature, in conflict with that given to Congress—and the greater or less extent, in which it may be exercised, does not enter into the inquiry concerning its existence.” In McCulloch vs. Maryland. [4 Wheaton, 430,] the court say: “We are not driven to the perplexing inquiry so unfit for the judicial department, what degree of taxation,” (or, they might have added, of any other burdening or interference.) “is the legitimate use, and what degree may amount to the abuse of the power. The attempt to use it on the means employed by the government of the union, in pursuance of the constitution, is itself an abuse, because it is the usurpation of a power, which [66] the people of a single State cannot give:” And again, [p. 436]—“The States have no power, by taxation, or otherwise, to retard, impede, burden, or in any manner control the operation of the constitutional laws enacted by Congress to carry into execution the powers vested in the general government.” Now Congress, in pursuance of their constitutional powers “to regulate navigation among the several States,” and “to dispose of and make all needful rules and regulations respecting the territory belonging to the United States,” have enacted that this river shall “be, and remain a public highway.” Ohio puts a dam across it, which shuts it up entirely, and says to the passenger, “You shall hereafter depend upon my will, and the will and ability of my agents to open for you a private way in the place of the highway established by Congress.” Is not here collision? Does this leave the river a “public highway?” Is not here an assumption to “control” the constitutional legislation of Congress? Ohio says also to all passengers, “you shall be delayed in you passage at least five minutes at this point,” (and, of course, as many minutes at as many other points as the State may please.) Is not this “retarding, burdening, and impeding the operation of the law of Congress,” which enacted that this river should be a “public highway?” Is not such a law as clearly in “conflict” with the constitutional laws of Congress, as would be a State law that should enact that the United States mail coaches should make stops of five minutes each, at particular points designated by the State?

Again. By the laws of Congress, this river has been established as a “common and public highway,” in the technical meaning of that term. The laws, therefore, that apply to highways on land, apply to this river. To suppose a parallel case then—if two fences were placed, by an unauthorized person, across a highway on land, with gates in them, so as to require five minutes for passing them, would they not constitute a nuisance? Jacob says, “Erecting a gate across a highway, though not locked, but opening and shutting at pleasure, is esteemed a nuisance, for it is not so free and easy a passage, as if there had been no gate.” (Jacob’s Dict, tit. highway, sec. 5.) Also, “It is clearly agreed to be a nuisance in a highway to do any act which will render it less commodious.” (Jacob’s Dict, tit. highway, sec. 4.) The Supreme Court of Massachusetts also says that bridges with draws, across navigable waters, are nuisances, unless authorized by the sovereign power. (1 Pick. 184—2d do. 39—4th do. 460—9th do. 142.) In one of these cases (2d Pick. 39) the Court mentions that the Legislature of that State have been in the habit of requiring the owners of bridges, as a condition annexed to the privilege of erecting them, that they make compensation to the [67] owners of vessels for the delay that is necessarily caused by passing bridges with draws.

But it is said—and such a dictum was given out by the Supreme Court of Ohio, in the case before cited in 5th Hammond—that a State may put in dams and locks, if by so doing they improve the navigation of the river. Now, there is in this word “improvement,” a sort of charm for covering up what is illegal, and that is the reason why it is brought forward to cover up and excuse so palpable a trespass upon a public right of way, as that of erecting dams and locks in a navigable river, over which the State has no control, and compelling men to submit to the delay of going through them, or to the risk of not being able to get through them at all. Where a stream is not navigable, the State has undoubtedly power to make it so by means of dams and locks, because the stream then belongs to her own citizens, and she may do what she pleases with it. But wherever (in the States that have been formed out of territory that once belonged to the U. S.) a stream is navigable, it belongs to the U. S., and without the consent of the U. S. the State has no right, under pretence of improving it, to put in dams and locks, or make other alterations which, of themselves, are sufficient to obstruct or delay the passenger. The State would have a right to deepen the channel, and so would the riparian owner, because that could not obstruct the navigation. But the principle before quoted from the 1st Pickering, would apply to the case of a dam, a bridge, or any other structure, which involved an impediment or obstruction in the natural passage, and a temporary delay to passengers, viz: that “none but the sovereign (legislative) power have the right to judge” whether such an alteration would be an improvement. Nor is the question whether the dam be an improvement, one simply of fact, to be ascertained and determined judicially. When the legislative power have enacted that a particular river, in its natural state, shall “remain a common highway,” that is, an open way, the judicial department have no power to inquire into, and determine the expediency of erecting in that river certain structures, which involve a shutting up, or a destruction of the natural passage, a temporary delay to the passenger, and a dependence on the part of the passenger upon the will of unknown persons for his passage. The judiciary, in such a case, (say the S. C. of Mass. 1st Pick. 187) would be legislating instead of declaring the law as it is.

Again—Has the State of Ohio, under pretence of “improving” the post offices of the United States, within her limits, a right to assume the power of putting doors, windows and boxes in them, without the consent of the United States, or their agents? And [68] especially has she, under pretence of providing for the greater security of the public mails, a right to put locks on the doors of the post offices within her limits, appoint agents to keep the keys, and open the doors when necessary, and thus compel the citizens of the United States to depend for their mail facilities upon the mere will or ability of these State agents to open the doors? Certainly not. Yet, she might as well assume such an authority, without the consent of Congress, as the authority of putting dams and locks in the rivers of the United States (under pretence of improving them,) and thus of compelling the citizens of the United States to go through them, and to depend upon the agents of the state for liberty to go through them.

If the State of Ohio wishes to improve the navigation of the Maumee river by any means that involve a shutting up or destruction of the “highway,” or open way, established by Congress, let her lay her plans for such improvement before Congress, and if Congress should be satisfied with her plans, and if Ohio should give satisfactory assurances that the locks should be always kept in repair, be always properly tended, and that all other things proper to be provided for in such cases should be conscientiously performed by the State of Ohio, Congress would, no doubt, consent to the alteration—otherwise they ought not to consent to it. There may be thousands of cases where it would be proper for Congress to grant to Ohio the privilege of obstructing a navigable river, which they have declared shall “remain a highway”—but the question now is, whether Ohio can, in any case, claim this privilege as a legal right?

Another way of testing this question of a right in the State of Ohio, to put dams and locks in the rivers of the United States, under pretence of improving them, is, by asking whether the riparian owner have that right? If he have not, the State of Ohio cannot have it, because she has no right to use the river otherwise than as he might have used it before her.

Another way of determining this question, is, by simply deciding to which of the two governments, Ohio or the United States, this right of way belongs. If it belongs to the United States, Ohio certainly has no right, without the consent of Congress, to interfere with it in any way that can possibly injure or obstruct it. On the other hand, if it belongs to Ohio, then the United States have no right to interfere with it, without the consent of Ohio. There is no concurrent jurisdiction in the two governments over this right of way. It belongs to one or the other of them—and the one to whom it does not belong, must be content to let it remain in just such condition as the one to whom it does belong, chooses to let it remain. The general government is the [69] owner—and has seen fit, as yet, not only to leave the navigation unobstructed by any artificial structures, that may be called improvements, but also to enact specially that it “shall remain” so—and Ohio has no right to say that it shall not remain so forever, if Congress should so please. Ohio has as much right to go on and improve the wild lands of the United States within her limits, as to improve the navigable waters of the United States in any way that can injure or obstruct the navigation of them.

Again—If a river were to remain a “highway,” or open way, the distance usually occupied by a lock, could be passed in one minute, or perhaps in one-twentieth of a minute—but to pass through a lock requires five or ten minutes. At least, then, the particular portion of the highway that is occupied by the lock, is injured. Now is the benefit, if any, that may result to other portions of the highway, any legal justification for an injury done to that particular portion occupied by the lock? Can the State claim, as a matter of right, to offset the benefit against the injury?

Again—The improvement made in navigable rivers by dams and locks, consists in this—that by means of a lock, a boat is enabled to overcome, at a single lift, several feet of ascent, which otherwise would have to be overcome gradually. And this is the kind of improvement, which the Ohio Court says may be lawfully made by the State in a “highway” belonging to the United States. Let us apply this doctrine to a highway on land. Suppose an inclination of ten feet to the mile in a highway on land—would any individual or power, subordinate to the power that established the highway, have a right, without license, to reduce the inclination, and bring the road to a level, by making a perpendicular descent of the whole ten feet at a single point? Would he have the right to do this, even if he were to provide artificial facilities at that point, by means of which the embankment could be ascended and descended with a delay of less time than would be gained on the remainder of the mile? The idea is too ridiculous for argument—and yet the case is a perfect parallel to that of a dam and lock in a navigable river.

Again—The State Court claims for the State, the power of improving the “highways” belonging to the United States, by means of structures that interrupt the highway, and delay the passenger five or ten minutes at particular points, if they but facilitate his passage, for the remainder of his course, sufficiently to counterbalance or overbalance the delays. Such a doctrine is equivalent to this—that the State Legislature has power to exercise a general supervision and control over the constitutional legislation of Congress. For example, Congress enacts that this river, such as it is, shall be a “common highway”—that is, an [70] open way. A highway is also a way that can be lawfully interrupted by no power subordinate to the power establishing it. But Ohio says it shall not be an open way—but shall be interrupted by dams and locks, because she thinks the way will be the better for it. Is not this assuming a power to alter and improve upon the legislation of Congress? Congress also, by enacting that this river shall be a “common highway,” have virtually enacted that passengers upon it shall, at no point, or on any pretence, be delayed or hindered in their passage, by any person or power not licensed by Congress. But Ohio, by authorizing a dam, enacts that passengers shall be delayed five minutes whenever they arrive at a particular point. This is palpable collision. But Ohio, in order to avert the consequences of this collision, and to prevent her legislation being set aside, appeals to this Court with an apology for the collision—enters into a justification of the delay that she causes—offers an argument as to its expediency—and says that in consequence of it, passengers will find the remainder of their route more easy of accomplishment. This all may, or may not be true. Still, what is the amount of the justification, unless it be that Ohio have a right to overrule the legislation of Congress, whenever she can accomplish good by it—this Court being the judge whether the good be accomplished? It certainly means this, or it means nothing. It means that the State Legislature and this court combined, have the right, whenever they think it expedient, to take the legislative powers of Congress out of its hands, and administer them themselves. Such an apology as this, then, for the exercise of the power, on the part of the State, is good for nothing. Nor would this or any other apology be offered, or be necessary, if the power itself belonged to the State—for a State may exercise at will, and without rendering reasons, any power that belongs to her. If Ohio have the right to delay passengers five minutes on the “highways” of the United States, or to delay boats five minutes that are engaged in “navigation among the several States,” on pretence of doing a benefit to the boats, it follows that she has a right to delay the operation of all other laws of Congress, whenever by so doing she can improve their influence upon those that are to be affected by them. And if this Court will listen to arguments from Ohio, tending to prove that she has altered the regulations of Congress for the better, and will sustain the State in making whatever alterations this Court may think beneficial, in the laws of the United States, then Ohio may suspend, alter or delay the operation of every law of Congress within her limits, provided she can satisfy this Court that her legislation is better than the legislation of Congress. She may, for example, stop [71] the mail coaches of the United States five minutes in the middle of their routes, provided she cause the horses to be refreshed so as to be able to get through the remainder of the routes sooner than they otherwise would. She may also delay the time of holding the Circuit Court for the district of Ohio, by preventing the Judges from entering the Court House at the time appointed by Congress, provided she can satisfy this Court that suitors will thereby be better accommodated. If Congress order the post offices in Ohio to be opened at eight o’clock, Ohio may forbid their being opened until five minutes or five hours after eight, provided she can satisfy this Court that such an arrangement is an improvement upon that established by Congress. Ohio has as much right to stop the mail coaches of the United States in the middle of their routes—to delay the Judges when entering the Court Houses of the United States—and to prevent post-offices from being opened and entered at the time designated by the laws of Congress, as she has to shut up the navigable rivers or “common highways” of the United States, and thus delay passengers and boats that are navigating “among the several States,” or that are passing on the highways belonging to the United States. Such boats are as exclusively under the control of Congress, as are mail coaches, the district Courts, or the post offices of the United States. Congress is the sovereign power over these highways and navigable rivers, and also over boats engaged in “navigation among the several States”—and therefore Congress has the sole right to judge of what the public convenience requires—and the State has no particle or color of right to exercise any control in the matter, or to stop boats for one moment of time, or at any point of their progress, on any good or bad pretence whatever, or by any means whatever, whether by dams, laws or otherwise. She has no more right to stop them, than she has to stop the mails at particular points, or to delay the opening of the Courts and post offices of the United States on pretence of benefitting the public.

Again: The question, whether a dam and lock, erected without the license of Congress, be an improvement, is one that can never be settled in the affirmative by this or any other Court: And for this reason, that the question of improvement or injury depends, at best, upon a contingency, viz: that of the lock’s being opened for the passenger. Now, it can never be proved beforehand, that the lock will be opened. A court therefore can never determine affirmatively that the navigation has been improved: For if the lock be not opened, the navigation, instead of being improved, is ruined. Indeed, the natural navigation—the “highway” established by Congress, is destroyed, in any event, by a [72] dam and lock—and the only real question, therefore, that the case then admits of, is, whether the artificial navigation, which the intruder has provided as a substitute for that established by Congress, be better than the latter? Such a question, the complainant supposes this Court will not entertain.

But, perhaps all argument, on this point of improvement, might have been spared—for no evidence has been offered, nor any pretence set up by the defendants themselves, that the effect of this dam will be to improve the navigation of the river; or that any dam is needed at this point, for the improvement of the river. That is all a gratuitous assumption of the counsel. The truth is, as is set forth in the bill, and as is not denied by the defendants, that the whole object of the dam is, to make the waters of the river, subservient to the purposes of the canal.

But there is another consideration, which the complainant thinks is sufficient, of itself, to set at rest every possible question in regard to the legality of a dam with a lock in it—whether it be considered that such dam and lock might be made to operate as an improvement or not. This consideration is, that it cannot be presumed that Ohio will ever open the lock at all. We cannot presume that she will open it, for the reason that we have no evidence that she will—and it cannot be presumed without evidence. She has never pledged her faith that it shall be done—she has appointed no agents that are authorized to make any such pledge—it is clearly againsther interest to open it, (because it will be attended with some expense, and she also will thereby lose the monopoly of the transportation for her canal.) No law can compel her to open it, (because a State cannot be sued)—and it is notorious that in innumerable similar cases, she has invariably refused to open locks, unless she were paid toll for so doing, (which is equivalent to not opening them at all.) We must therefore presume that she will not open the lock in the Maumee river—or, at any rate, we cannot presume that she will. We can no more presume it in the case of a State, than we could in the case of an individual. The dam therefore can only be looked upon in its naked character of an obstruction, which will have to be removed by the General Government, or the navigation of the river abandoned.

Again: Congress have enacted that this river shall “remain a highway.” A highway is an open way; but a way through a lock, is one that requires to be opened, whenever one wishes to pass.

One suggestion more on this point of a dam with a lock, and we will cease arguing the question. This dam is to be some sixty, seventy, or eighty rods in length—nine or ten feet high, [73] and built in a very heavy and substantial manner. Suppose that after it shall be built, it should not answer the purpose, or that the present location of the canal should be changed—or that for some other reason, this dam should be abandoned. Who then is to open the lock, or remove the dam? Ohio certainly cannot be compelled to do either: there is no law that could in that case reach a State. She may abandon her dam at any time, and the only way left to restore the navigation of the river, will be for the United States to remove the dam at their own expense. Now is it possible that an individual State, without the consent of Congress, can lawfully place heavy and formidable structures across the navigable rivers and highways of the United States, and then turn round and leave the United States to the task of removing them? This certainly is an unavoidable conclusion from this doctrine. So also, if we suppose what is very likely to happen, that Congress should hereafter see fit to improve the navigation of this river, as they are doing that of hundreds of others of like character, in different parts of the Union—and that the plan of their improvement should be such that dams would not be wanted at all, or that this canal dam would be in a wrong place, or even its lock of a wrong size, the objection before stated again presents itself, viz: The removal of them must be made at the expense of the United States. Has the State a right thus to fill up, at pleasure, the navigable rivers of the United States with these obstructions, and subject the United States to the cost of removing them? It is no answer to the argument, to say that Ohio will not be likely to abuse this power, (that depends upon the motives she may have to do it.) But the question is, whether she have the power, and can be allowed to use it, if she will?

It may be argued that as the erection of this dam is not for the purpose of “regulating navigation among the States,” it may be done by the State. It was admitted by the Court, in Gibbons and Ogden (page 197 to 210,) that the States, for the purpose of regulating their domestic trade and police, might exercise certain powers—as taxation for instance—similar to those exercised by Congress. It was admitted, also, that the State might adopt certain police regulations of the same kind as some of those, which it might be proper for Congress to adopt for the purpose of regulating commerce. But the Court expressly limited the power of the States, on these points, to the passage of laws, that did not interfere either with the freedom of navigation, or with any regulations that Congress had established. The Court said (pages 209 and 10) that if any “collision “exist” between the State laws and the laws or regulations of Congress, it was immaterial whether the State laws were enacted for the purpose of regulating [74] “their domestic trade and police,” or for that of regulating commerce among the States. “In one case and the other (say the Court) the acts of the State must yield to the laws of Congress.” The law of New York, giving a monopoly of steam navigation on the North river to Livingston and Fulton was not for the purpose of “regulating navigation among the States,” but for the encouragement of the arts—an object as important to the wealth and civilization of a State, as is the construction of canals. Yet the law of New York was pronounced void for “collision” with the regulations of Congress—void, not for prohibiting commerce, but for simply imposing a burden and impediment, where the commercial system of Congress had left it free. The law of Ohio authorizing a dam, comes in “collision” with the law of Congress, which declares that the Maumee river shall “remain a highway,” or open way. It also comes in “collision” with the regulations which Congress have established in regard to “navigation among the several States,” because it interposes an impediment, where the commercial system of Congress had left the navigation free. It also assumes a “control” over the property of the U. S. (for the right of way over these rivers is the “property” of the U. S.) It also acts upon “the means employed by the government of the Union, in pursuance of the Constitution.” In both these respects, it is an usurpation, and comes in “collision” with the rights and legislation of Congress. (M’Culloch and Maryland 4th Wheaton 430.)

It is said that unless Ohio can obstruct the navigable rivers of the U. S. she cannot construct her canals. But whether the State can or cannot construct all necessary canals, without obstructing the navigable rivers of the U. S. is a question of fact to be determined by evidence, and is not now before this Court. But admitting the fact to be as stated, that is no better argument in favor of the legal right of the State to obstruct them, than the argument of individuals, that unless they were permitted to obstruct such rivers, they could not operate their saw mills, would be in favor of the right of such individuals to obstruct them. If Ohio cannot construct her canals without obstructing the navigable rivers of the U. S., the object is undoubtedly of sufficient importance to be entitled to the consideration of Congress, and Congress will undoubtedly be liberal in judging of the expediency of complying with the wishes of the State. But this is a very different matter from that of the State’s claiming the legal right to obstruct them in defiance of the laws of Congress. Congress must, of course, retain in their own hands the power of judging whether it be expedient that their highways and navigable rivers should be shut up, and their laws in regard to them superseded [75] and overruled by State laws. And the State has no more reason to complain on account of being required to obtain the permission of Congress to obstruct navigable rivers within her limits, than she has on account of being required to obtain the consent of Congress to go through those lands, within her limits, which belong to Congress. In the case of the Miami canal, she requested and obtained permission to go through the lands of Congress, and made no complaint that it was an infringement of her constitutional sovereignty to require her to obtain that permission. And yet the power of controlling all lands within their limits, and of taking them for the public use, is as much an attribute of sovereignty, in ordinary governments, as the power of controlling the navigable rivers within their limits. But the peculiar character of our system takes from the State governments this attribute of sovereignty, so far as it relates either to the lands or rivers, or other property, of the general government—and the restriction is no more a subject of complaint, when it applies to rivers, than when it applies to lands.

But it is said, that if the State may not control the navigable waters within her limits, or do any thing else that interferes with the commercial regulations of Congress, she is in a very “helpless condition.” And this is, after all, the grand argument, for it appeals to State pride. But the answer is, that whatever this helplessness may be, it is endured by Ohio in common with all the other States of the Union. The Constitution of the U. S. condemned the State governments to utter helplessness as to all power of controlling the general government in relation to “navigation among the several States.” It was foreseen that if the States were suffered to retain a particle of such power, they would inevitably clash with each other, and thus render futile all attempts of Congress to establish an uniform system for the whole country. The Constitution also condemned the State governments to utter helplessness as to all power of controlling Congress, in “disposing of, and making all needful rules and regulations respecting the territory and other property belonging to the United States”—of which territory and property these rivers are a part.

The Jurisdiction.

The case arises under the constitution and laws of the United States—the parties are also citizens of different States.

The liability of the Defts.

In Osborn vs. Bank of U. S. it was decided that: “In general, an injunction will not be allowed, nor a decree rendered, against an agent, where the principal is not made a party to the suit—But if the principal be not himself subject to the jurisdiction of [76] the Court, (as in the case of a sovereign State,) the rule may be dispensed with.” (9th Wheaton 739.)

The Remedy.

This is a case of public nuisance, attended with special injury to the Complainant.

The land of the complainant is situated at the lower terminus of the large extent of free navigation afforded by the Maumee river, and its branches. On account of being so situated, it enjoys great advantages as a place from which merchandize may be forwarded up the river, and at which produce coming down the river may be received for storage and market—and also as the natural trading point for the country bordering on the rivers above—and its value depends greatly upon the continued enjoyment of these advantages. In addition to this, the large water power attached to the land of the complainant, and afforded by the rapids, which commence at this point, make the situation the most natural one for the manufacture of the lumber and grain furnished by the country above. It is also the most natural seat for the establishment of most of the mechanical and manufacturing operations, requiring water power, and demanded by the wants of the country above. This water power, therefore, which is intrinsically of very great value, and already partially in use, will undoubtedly be called into speedy and extensive requisition, unless some impediment should be placed in the navigation, which now conducts to it—while any such impediment would tend most materially to divert this business to other places, and thus deprive the complainant both of the opportunity of selling, and of the profit of improving, this water power. The value of the complainant’s land, adjoining this water power, would also be greatly reduced by any circumstances, that should tend to keep this water power out of use.

The aggregate of these various injuries, to the value of the complainant’s property, would be very great, and of a nature utterly incapable of estimation—and, not unlikely, incapable, from its amount, even if it could be estimated, of being compensated by those who may hereafter be defendants—for he has no security that the Commissioners, or other agents of the State, who are annually changing, will always be men of pecuniary responsibility. On both these accounts, there is the most imminent danger that the injury would be irreparable.

That these reasons are sufficient for the injunction, we cite the following authorities:

In Crowder vs. Tinkler, (19 Vesey’s, Ch. R. 621) the Lord Chancellor said: “Where the subject of complaint is matter (merely) of public nuisance, the Attorney General alone can sue—but [77] it is going too far to say, particularly without more materials than can be had on motion, that if a plain nuisance is attended with particular and special injury to an individual, producing irreparable damage, that individual shall not be at liberty to come here, unless the Attorney General chooses to accompany him.” And he adds, on the next page (622) “Upon the question of jurisdiction, if the subject were represented as a mere public nuisance, I could not interfere in this case, as the Attorney General is not a party.” “The complaint, therefore, is to be considered as of not a public nuisance, simply, but what, being so in its nature, is attended with extreme probability of irreparable injury to the property of the Plffs. including also danger to their existence—and on such a case, clearly established, I do not hesitate to say an injunction would be granted.”

The case of Coming vs. Lowerre, (6 Johnson’s, Ch. R. 439.) was this:

“Bill for an injunction to restrain Deft. from obstructing Vestry Street, in the city of New York, and averring that he was building a house upon that street, to the great injury of the Plffs. as owners of lots on and adjoining that street, and that Vestry street has been laid out, regulated and paved-for about twenty years.

“The Chancellor distinguished this case from that of the Atty. Gen. vs. The Utica Ins. Co. (2 Johnson’s, Ch. Rep. 371) inasmuch as here was a special grievance to the Plffs. affecting the enjoyment of their property and the value of it. The obstruction was not only a common or publie nuisance, but worked a special injury to the Plffs. Injunction granted.”

Story says also that “Where privileges of a public nature, and yet beneficial to private estates, are secured to the contiguous proprietors on public squares, or other places dedicated to public uses: the due enjoyment of them will be protected against encroachment by injunction.” (2 Story’s Equity, sec. 927, page 206.)

The principle of these authorities was specially sanctioned by this Court, at its last session, in the opinion given in the case of city of Georgetown vs. Alexandria Canal Co. (12 Peters 91.)

Much reasoning, that is applicable to this case, is also contained in the opinion of this Court, delivered by Ch. J. Marshall, in Osborn vs. Bank of the U. S. (9th Wheaton 838 to 846.)

We are aware that there has been a hesitation on the part of Courts in granting injuctions. But it is believed that this hesitation has been confined chiefly to granting them on exparte testimony, or on the preliminary proceedings, before the rights of the parties had been fully ascertained. And in such cases, the hesitation is evidently discreet and proper—for otherwise there [78] would be great danger of arresting men in the prosecution of their legal business, and in the enjoyment of their legal rights.—Still, Courts will grant injunctions, even on exparte testimony, where a plain case is made out, and where there is manifest danger of irreparable injury from delay. And even “if the right be doubtful, the Court will direct it to be tried at law, and will in the mean time restrain all injurious proceedings. And when the right is fully established, a perpetual injunction will be decreed.” (2 Story’s Equity Sec. 927, page 207.) There seems, therefore, to be no occasion for delicacy or hesitation in granting injunctions, after the right has been established. In New York Printing Establishment vs. Fitch (1st Paige’s Ch. R. page 97—also Barbour and Harrington’s Equity Digest Vol. 3, page 448,) the Chancellor said, “There are many cases in which the complainant may be entitled to a perpetual injunction on the hearing, where it would be manifestly improper to grant an injunction in limine. The final injunction is, in many cases, matter of strict right, and granted as a necessary consequence of the decree made in the cause. On the contrary, the preliminary injunction, before answer, is a matter resting altogether in the discretion of the Court.”

Such also seemed to be the opinion of this Court in Osborn vs. Bank of the U. S. (9th Wheaton,) where the injunction was affirmed, on the hearing. The reasoning of the Court generally in that case, (from page 838 to 846) was strong in favor of a very liberal use of their preventive power, after the rights of the parties are once established. For example, the Ch. J. said (page 843,) “Why may it (the Court,) not restrain him from the commission of a (any) wrong, which it would punish him for committing?”—He also said (page 845) that “it is the province of a Court of Equity to arrest injury, and prevent wrong,” because such “remedy is more beneficial and complete than the law can give.” And the injunction was affirmed in that case, although the Ch. J. said that an action at law might have been sustained, and (page 841,) that “a reasonable calculation might have been made of the amount of injury, so as to satisfy the Court and Jury.”

The 16th Section of the Judiciary Act of 1789, (Story’s Laws Vol. 1, page 59) is in these words, “That suits in equity shall not be sustained in either of the Courts of the United States, in any case where plain, adequate and complete remedy may be had at law.” The necessary inference from the language of this section, is, that suits in equity may be sustained in all cases when the remedy at law is not “adequate and complete.” We trust that in this case, the reasons already given, to wit, the impossibility of estimating an injury of that nature, and the doubtful responsibility of those who may hereafter be Defts.—to which may [79] be added the fact, that the principal is not liable to a suit—are sufficient to show that there is no reasonable probability that any “adequate or complete remedy” could ever be had at law. In addition to these reasons, there is another, to wit, that this dam would be a continuing injury, and the remedy at law could only be obtained by a multiplicity of suits. These suits would be attended with such an amount of trouble and expense over and above the legal costs, that they would afford no “adequate or complete remedy.”

It may perhaps be argued that this injury may be repaired by abating the dam, after it shall be erected. But if the dam cannot be enjoined at the suit of the Complainant, it certainly could not be abated at his suit. And if it could not be abated at his suit, he has no security that it would be abated at all, because the District Atty. may not see fit to procure its abatement.

But suppose it should be abated—it could be done only after a delay of two, three or four years from the present time—because it will require a year or two to complete the erection of it, and then it would doubtless require another year or two to abate it, and during all this time, the effect of the dam is to sink the marketable or available value of the complainant’s property greatly below its true value, by reason of the uncertainty that must pervade the minds of the public, as to when and whether the dam will be finally abated. To keep the legal and available value of a man’s property in abeyance in this manner, and for this length of time would be a heavy and irreparable injury. Besides, there is danger, in this as in all other similar cases, that the Complainant may, within the time mentioned, become pecuniarily embarrassed, and his property be sacrificed at its reduced value, to pay his debts—in which case, it is evident that no “adequate or complete remedy” could ever be even hoped for at law. In addition to this, the place, by having its natural advantages cut off for three or four years, would lose the benefits of all those improvements, which during that time, its peculiarly favorable situation and great natural advantages would otherwise undoubtedly give rise to. This loss would also be of a nature incapable of estimation, and of course incapable of reparation.

It was argued in the Circuit Court, that if this property were to be injured in value by the erection of this dam, it was in the situation of private property taken for public use, and that the complainant must look to the State for his compensation. The answer to this argument is, that no property of the complainant is actually taken, unless it be a small quantity of water, which he would have the use of as it flowed over his land, but which is not worth contending about. The property, so far as any is taken—that [80] is, the highway, or right of way—is the property of the United States. The taking, therefore, is not of a citizen’s property for public use, but of national property for State use. The injury to the complainant is consequential merely—resulting from the illegal act done to the highway established by Congress. For such an injury, an individual could obtain no redress from the State, because neither the constitution nor laws of the State make any provision for such cases. They were not framed on the supposition that the State would ever invade the property, or violate the constitutional laws of the United States—or, of course, ever have occasion to make reparation to individuals for injuries resulting from such acts. Nor would a State have any power to violate the laws, or invade the property of the United States, even if it were to compensate individuals tenfold for all the injuries they might suffer from such violation or invasion. The State of Ohio, for instance, would have no right to shut up or abolish the post offices of the United States, or to prevent the holding of the United States courts within her limits, or to prevent navigation between herself and her sister States, though she were to compensate every individual that might suffer from such acts. The rights and benefits, which the citizens of the United States enjoy under the constitution and laws of the United States, are not so feebly secured to them, that they may be taken from them, at pleasure, by the States, and the citizen be compelled to look for compensation only to the justice of the State governments.

The court, we apprehend, cannot grant a conditional injunction—one, for instance, that should not forbid the erection of a dam, provided a lock were put in it, and tended and opened for passengers. That would be equivalent to offering to make a contract with the State—which the judiciary are not authorized to do. Neither would such an injunction secure to the complainant “the due enjoyment,” [Story’s Equity, p. 206,] of the advantages of this highway. “The due enjoyment” must be the legal enjoyment—and not one depending upon the will of an usurping power, that cannot be held responsible to him for its acts or omissions.

The complainant, therefore, asks for a peremptory injunction against a dam of any kind, that shall extend across the river, or so far into the channel as to obstruct, impede, or impair the navigation.

Endnotes

*

We suppose the compact, expressed in the ordinance, that the new States of the northwestern territory should not tax the lands of the United States, or Interfere with the disposal of them, is now vold from having been superseded by the constitution, which gives the general government the power of preventing any thing of that kind. But under the Confederation such a compact was necessary.

*

In Hogg vs. Zanesville Co., 5 Hammond 416, the Court say that that portion of the ordinance which prescribes that these rivers should forever remain “highways,” could “not be altered without the assent, both of the people of the State, and of the United States through their representatives.” This is claiming for the State, an equal right of control, with the United States, over these rivers.

*

The same powers, that were granted to the original Board of Canal Commissioners, by the act of 1825, before referred to, were transferred to the Board of Public Works, (the same mentioned in Complainant’s bill) by “an act to organize a Board of Public Works,” passed March 4, 1836, (General Laws of Ohio, Vol. 34, page 14, Sec. 2.)—and again devolved upon the present “Canal Commissioners,” by “an act to abolish the Board of Public Works, and to revive the Board of Canal Commissioners,” passed March 16, 1838. (General Laws of Ohio, vol. 36, page 64, Sec. 4.)

*

This explanation of the reason why the river was not used, instead of a canal, was given to the complainant by one of the principal engineers employed by Ohio in locating this canal.

†

It will be observed, that both these grants were originally made to Indiana—she subsequently, with the consent of Congress, [Story’s Laws, vol. 4, p. 2141, sec. 4] transferred to Ohio her privilege, for that portion of the canal which lies within the limits of Ohio.

T.5 Constitutional Law, relative to Credit, Currency, and Banking (1843).↩

Title

[5.] Constitutional Law, relative to Credit, Currency, and Banking (Worcester, Mass.: Jos. B. Ripley, 1843).

- also online Shorter Works, vol. 1: </titles/2290#lf1531-01_head_017>

Text

CONSTITUTIONAL LAW.

CONTENTS.

- Chap. 1. The Unconstitutionality of all State Laws Restraining Private Banking and the Rates of Interest.

- Chap. 2. What Bank Charters are Unconstitutional.

- Chap. 3. What Bank Charters are Constitutional.

- Chap. 4. The Power of Congress over the Currency.

- Chap. 5. The Remedy for the Laws that restrain Private Banking and the Rates of Interest.

[3]

CHAP. I.: THE UNCONSTITUTIONALITY OF ALL STATE LAWS RESTRAINING PRIVATE BANKING AND THE RATES OF INTEREST.

The Constitution of the United States, (Art. 1, Sec. 10,) declares that “No State shall pass any law impairing the obligation of contracts.”

This clause does not designate what contracts have, and what have not, an “obligation.” It leaves that question to be decided by the proper tribunals. But it plainly recognizes two things, as fixed, constitutional principles—first, that there are contracts that have an “obligation;” and, secondly, that the people have a right to enter into, and have the benefit of, all such contracts.

The force of these implications will, perhaps, be more clearly seen, when applied to a particular contract, than when applied to contracts generally. Suppose, then, the constitution had merely said that no State should pass any law impairing the obligation of the marriage contract. This provision would have plainly implied, first, that marriage contracts were in their nature obligatory,—and, secoudly, that men had a right to enter into that species of contract. But the implications, which would, in this case, have applied to marriage contracts, now apply, under the constitution as it is, to all contracts whatsoever, that are in their nature obligatory.

That this constitutional prohibition, against “impairing the obligation of contracts,” implies that there are contracts having an obligation, no one will deny. But that it also implies that men have a constitutional right to enter into all such contracts, seems also to be perfectly clear.

Suppose the constitution had declared that no State should “pass any law impairing a man’s right to recover the wages of his labor”—This prohibition would have certainly implied that men had a right to labor for wages—and any law that should have forbidden them to labor for wages, would have been as much unconstitutional, as one that should have deprived them of the wages they had earned.

Or suppose again that the constitution had forbidden the States to “pass any law impairing the meaning and intent of wills.” Such a [4] provision would have manifestly implied, and therefore established it as a constitutional principle, that all men had a right to make wills. And any law that should have forbidden men to make wills, would have been as much unconstitutional, as one that should have altered or invalidated their meaning and intent when made. So also the prohibition against “impairing the obligation of contracts,” implies that men have a right to enter into all contracts that have an obligation. And any laws that forbid men to enter into such contracts, are as much unconstitutional, as those that would impair the obligation of the contracts when made.

The assumption, also, in the constitution, that men’s contracts have an “obligation,” implies that the parties have a right to enter into them; for if they have no right to enter into them, no obligation could arise out of them.

This constitutional right of men to enter into all obligatory contracts, is a natural, inherent, inalienable right. It exists antecedently to, and independently of, any positive or municipal law. It may be recognized, acknowledged, guarantied, and secured, by the municipal law, but it is not derived from it—nor can the municipal law rightfully take it away. It is an original right of human nature, like the right of speech—the right to enjoy life, liberty and religion—the right to keep and bear arms—and the right of self-protection. And it is as an original right, existing prior to the constitution, that the clause quoted from the constitution, recognizes and guaranties it.

The right to enter into obligatory contracts, is also involved in the right to “acquire property”—for one man can acquire property of another only by means of an obligatory contract. Every purchase and sale of property that takes place between man and man, involves a contract—that is, an agreement—an assent of their minds to an exchange of values. And every purchase and sale, that takes place between man and man, depends, for its validity, upon the “obligation” of the contract or agreement, that the parties have entered into—an obligation, that is protected by the Constitution of the United States.

If the State Legislatures had power to declare, even prospectively, what contracts should, and what should not be obligatory, they might arbitrarily prohibit all trade between man and man—they might invalidate, not merely credit contracts, but even those contracts that are executed at the time they are entered into—for there is no difference in the intrinsic obligation of a contract that is to be executed, and one that is executed. The equitable right of property is transferred as absolutely by an executory, as by an executed contract; and government has as much right to declare, prospectively, that contracts that may afterward be actually executed, shall, notwithstanding, be void; and that men who may sell and deliver property, may nevertheless recover it back, as it has to declare that those who have sold property and promised to deliver it, shall still be entitled to retain it—or, what is the same thing, be released from their obligation to deliver it. A promise to pay money, [5] for value that has been received, is a mere promise to deliver money, that has been sold and paid for—and government has as much right to declare that if a banker shall actually sell and deliver money, he may nevertheless recover it back, as it has to declare that if he promise to deliver money that he has sold, he shall be relieved from his obligation to deliver it. The law, that should enable a man to recover property, that he had actually sold and delivered, would no more interfere with men’s natural rights to acquire property, by contract, or purchase, than the law which should relieve a man from his obligation to deliver property, which he had sold and promised to deliver. But will any one pretend that government has a right, even by a prospective law, to invalidate contracts that may afterwards be actually executed? If not, he cannot consistently claim that it has a right to invalidate executory contracts—for the equitable right of property passes as absolutely by the latter contract, as the former.

The right to acquire property, is enumerated, in many, if not all, of the State Constitutions, as one of the natural, inherent, inalienable rights of men—one that is not surrendered to government—one which government has no power to infringe—one which government is bound to respect and secure. And this right to acquire property, as was before said, involves the right to enter into obligatory contracts—for men can acquire property of each other, only by such contracts.

The right of men, then, to enter into obligatory contracts, and to have the benefit of them, is guarantied, not only by the national constitution, but also by many, if not all, of the state constitutions. It is, in short, a fundamental principle in our systems of government—as much so, as the right of speech, or the right to life and liberty, or the free exercise of religion, or the right to keep and bear arms, or the right to acquire property.

But notwithstanding the general and State constitutions have thus guarantied to the citizens of this government their natural right to enter into all obligatory contracts with each other, and to have the obligation of their contracts respected, and enforced, it is nevertheless probable that the statute books of every State in the union, contain laws, or the forms of laws, whose avowed and only object is to abridge this right, and impair the obligation of these contracts; and which declare that certain contracts, that may be entered into by bankers and others, to pay money—contracts that are in their nature as obligatory as any others that men ever enter into—shall be entirely void, or essentially impaired, or that the individuals entering into them shall be fined or imprisoned.

To an unsophisticated mind, nothing could be more selfevident than the unconstitutionality of these laws. Yet they are enforced by the courts, and submitted to by the people, without their constitutionality being seriously questioned.

The Courts admit that the contracts, which are thus nullified or impaired, [6] would be obligatory, were it not that the law has deprived them of their obligation. But this is no answer to the objection, because to impair their obligation is the very thing, which the law is forbidden to do. To say, therefore, that the law has deprived these contracts of their obligation, is equivalent to saying that a “law impairing the obligation of contracts” is constitutional. The very test of the constitutionality of the law, on this point, is, whether, if suffered to have its effect upon contracts, it would impair their obligation. If it would, it is unconstitutional, and, of course, void.

But let us now enquire, more particularly, what contracts are obligatory? or, rather, in what consists the obligation of contracts?

There have been differences of opinion on this point—but they have all arisen from a desire to uphold the arbitrary power that is assumed by legislatures over the subject. But for this, a doubt could never have arisen as to what constituted the obligation of a contract. The very phrase “obligation of contracts,” implies that the obligation is something intrinsic in the contracts themselves. It assumes that the obligation is something that pertains to the contract naturally, and as a matter of course—and not that it is a quality contingent upon the will of those who had no hand in forming the contract. The facts, also, that the right of acquiring property by contract, is a natural right, and not one derived from municipal authority, and that the contracts entered into by men in a state of nature, without reference to any municipal law, are obligatory, prove that the obligation of contracts must be something intrinsic in the contracts themselves, depending upon the acts of the parties, and not upon any extraneous will.

What, then, is this intrinsic “obligation of contracts?” It is, and it can be, nothing else than the requirements of natural justice, arising out of the acts of the parties. All judicial tribunals hold it to consist in this, and this alone—as is proved by the fact, that wherever this requirement is shown to exist, they hold the contract to be obligatory as matter of course, unless the legislature have specially ordered otherwise. And they will even imply a contract, in many cases, in order to enforce this requirement. On the other hand, where this requirement is shown not to have arisen out of the acts of the parties, the contract is held to be destitute of obligation. For instance, judicial tribunals hold that contracts entered into by persons that are mentally incompetent to make reasonable contracts, are not obligatory—that contracts entered into gratuitously, or without a valuable consideration, are not obligatory—that contracts obtained either by coercion or fraud, are not obligatory upon the party against whom the coercion or fraud has been practised—that contracts to commit any vice, crime or immorality, or to pay for the commission of any vice, crime, or immorality, or the object of which is to aid or encourage any vice, crime, or immorality, are of no obligation. All these contracts are destitute of obligation, and are held to be so by judicial tribunals, not because any [7] legislative enactments have declared them void—(for, in general, there are no such enactments)—but, simply because natural justice does not require them to be fulfilled—or, what is the same thing, because the contracts had no intrinsic obligation—no foundation in natural justice. On the other hand, judicial tribunals, except where the legislature has ordered otherwise, hold all contracts to be obligatory, which justice and morality require to be fulfilled. Courts do not require statute authority for enforcing each particular contract. The principles of natural justice are a sufficient authority, and in most cases their only authority. And this practice of course proceeds on the ground that the requirements of natural justice are what constitute the obligation of contracts. And this practice shows also that the question of what contracts are obligatory, and what not, is a judicial, and not a legislative question. The legislature, as a general rule, pass no laws declaring either what contracts shall, or what shall not, be obligatory. The judicial tribunals are established as much to decide what contracts are obligatory, as to enforce the fulfilment of them. Their authority to do this, is derived directly from the constitution, and not from the legislature. In general, the legislature do not seek to encroach upon this prerogative of the judiciary—but leave it entirely to them to determine what contracts are, and what are not, obligatory. In fact, the judiciary do determine, and must determine, in the last resort, upon the obligation of every contract that is brought before them—for they must, of necessity, decide upon the obligation of all contracts, in regard to which the legislature have not spoken, and they must equally decide upon the obligation of those, in regard to which the legislature have spoken, because they must determine the validity of every legislative enactment, that assumes to interfere with, or control, the obligation of contracts.

The general principles, then, that obtain in regard to the obligation of contracts, are, 1st, that the obligation is intrinsic, arising solely from the acts of the parties, and that the requirements of natural justice constitute that obligation—and, second, that it is the province of the judiciary to determine in what cases that obligation exists.

But although such are the general principles that obtain in all our judicial tribunals, in regard to this particular point of the obligation and validity of contracts, the legislative department does nevertheless sometimes assume the authority of innovating upon these general principles, and of dictating to the judiciary, how they shall decide in regard to the obligation of particular contracts. In the case of the contracts of unlicensed bankers, for instance, they enact that the judiciary, whenever these contracts come before them, shall decide that they have no obligation. This is the whole purport of the law that declares that these contracts shall be void. It is nothing more, nor less, than a requirement upon the judiciary to deny their obligation—because the contracts are naturally obligatory, and the courts would of course hold them obligatory, [8] if they were not required to do otherwise. And the legislature make this requirement, not at all on the ground that these contracts really have no obligation—but they do it arbitrarily, and simply because it is their will that the judiciary should deny the existence of this obligation. They thus, in effect, require that the judiciary shall assert a falsehood—that they shall declare that a contract has no obligation, when it really has an obligation. By thus requiring the judiciary to decide that a banker’s contract to pay money, has no obligation, they, in effect, require them to deny that he has received value for it—because, if he have received value for it, his obligation to pay has necessarily arisen, and that obligation has become an existing, unalterable fact—and however much the legislature may wish to have this fact denied, the fact itself still remains. The power of the legislature is as powerless to annul that fact, as it is to annul any other fact that has ever occurred. It is as powerless to annul that obligation, as it is to annul the parental, filial, or social obligations of mankind.

The question now is, whether any requirements, that may be made by the Legislature, upon the judiciary, to deny this fact, to deny this obligation, and to assert that no such fact or obligation exists, are binding upon the judiciary?

This question may probably be answered without going to the Constitution of the United States. The constitutions of most, if not all the states, contain, in some form or other, this provision, viz: that Courts shall be open, and that right and justice shall there be administered to every man without denial or delay. Now if the Legislature enact, that in adjudications upon bankers’ contracts, right and justice shall be violated, withholden or denied, are not such enactments in palpable violation of this provision of the constitution? And if the Legislature enact that the obligation of bankers’ contracts shall be denied, disregarded, or not enforced, by the courts, is not that equivalent to a requirement upon the courts that they shall withhold right and justice from the holders of those contracts? Clearly it is—and the requirement is consequently void even by the state constitutions.

But perhaps it will be said, that the Legislature does not assume to declare that right and justice shall be withholden, but only to declare what right and justice, under bankers’ contracts, shall be. The answer to this objection is, that right and justice, as accruing by contract, are judicial, and not legislative questions—and, therefore, if the legislature declare that right and justice, under certain contracts, shall be any thing different from what the judiciary would have decided them to be, they thereby virtually require the judiciary to violate or withhold right and justice. It is also an usurpation, on the part of the legislature, to prescribe what right and justice shall be, or to declare what rights accrue, under any contracts whatever. It is the business of the legislature to provide and prescribe the means, the instrumentalities, to be used, for enforcing the right and the justice, that may accrue [9] to individuals, by virtue of their contracts—but it is the sole prerogative of the judiciary to determine what that right and that justice are. The legislature can prescribe, to the judicial tribunals, nothing that is of the essence of justice itself. If the legislature may prescribe to the judiciary what right and justice shall be, under one class of contracts, they may, by the same rule, prescribe what they shall be under all contracts whatsoever, and thus wholly usurp this prerogative of the judiciary. They may, in fact, make the judiciary a mere supple instrument in their hands.

But, perhaps it will be said, that the legislature do not merely require that bankers’ contracts shall be held void, but that they also forbid men to enter into those contracts—and that, inasmuch as the contracts themselves are forbidden, no obligation or rights can arise out of them. The answer to this, is, that the legislature has no authority to pass laws forbidding men to enter into obligatory contracts—and that all laws of that kind are unconstitutional, as conflicting with the constitutional right to acquire property. The natural right of men to acquire property of each other, being guarantied to them by the constitution, against the action of the legislature, the right to enter into obligatory contracts is necessarily guarantied also—because it is the only means by which they can acquire it.

It follows, then, that the people are secured, by the state constitutions generally, in the possession of these two rights, viz: to enter into all contracts with each other, that are in their nature obligatory—and, secondly, to have right and justice administered upon those contracts by the judiciary.

If these views are correct, we need go no farther than the State constitutions, to determine the validity of all those laws, or pretended laws by which the business of private banking is attempted to be prevented. These laws are palpably unconstitutional—and no mist of words, no professional quibbles, no arguments of expediency, no authority of long continued custom or acquiescence, can conceal or resist the fact.

But let us now inquire whether these laws are not also in violation of the constitution of the United States.

This constitution declares that “No State shall pass any law impairing the obligation of contracts.”

What is “the obligation,” which is here assumed to pertain to contracts, and is forbidden to be impaired?

We have already seen that the intrinsic obligation of contracts—the obligation that is recognized by all judicial tribunals—is the requirement of natural justice, arising out of certain acts of individuals. For instance, A sells to B a bushel of grain, and B promises that he will pay a reasonable compensation for it. Natural justice requires that he should make this payment—and this requirement of justice constitutes the obligation of this contract. And this requirement of natural [10] justice is the kind of obligation, and the only kind, that is recognized and enforced by judicial tribunals. And it is recognized and enforced by them in all cases where it is shown to exist, except where legislatures specially interfere to set it aside. Is not this “the obligation,” which the constitution of the United States declares shall not be impaired? If any say that it is not, it is incumbent upon them to show what other kind of obligation is meant. No other obligation pertains intrinsically to contracts. No other is known to judicial tribunals—no other is known to the consciences of men. This obligation, it is true, is not always enforced in full—sometimes not even at all—but that is owing, as we say, to the authority allowed to unconstitutional laws. But no other obligation is ever enforced. No other obligation is even known. This, then, is “the obligation,” which the constitution declares shall not be impaired.*

A prospective law may impair this obligation, as well as a retrospective one. There is, in this respect, no difference between them. The prohibition of the constitution is against “any law”—whether prospective or retrospective—that should impair the obligation of contracts.

The laws which declare that the contracts of unlicensed bankers, to pay money, shall be void, are palpable violations of this clause of the constitution. And this position is so self-evidently correct, that I need spend no words in making it more clear. I will merely reply to the fictions and quibbles that are usually urged against it.

1st. It is said that if contracts are forbidden by law, they can have no obligation.

This ground is untenable for the following reasons. First—It assumes that the law is constitutional, and that the Legislature has authority to forbid men to enter into contracts that are in their nature obligatory—whereas this authority, as we have seen, is withholden from the legislature, even by the State constitutions—inasmuch as it would be in conflict with the constitutional right of the people to acquire property. If the legislature may forbid men to enter into one kind of obligatory contracts, they may, by the same rule, forbid them to enter into any—and the natural rights of men to buy, sell, contract, and exchange property, with each other, instead of being secured by the constitution, would become mere privileges to be withheld or permitted at the caprice or discretion of the Legislature. And if a banker’s contracts, for the purchase, sale, or delivery of money, are forbidden today, a farmer’s, merchant’s, and mechanic’s, for the purchase, sale, and [11] delivery of their respective commodities, or appropriate articles of traffic, may be forbidden tomorrow.

2d. The State laws forbidding contracts that are in their nature obligatory, conflict also with the constitution of the United States—because the provision against impairing the obligation of contracts, implies that men have a constitutional right to enter into all contracts that have an obligation. And all laws that forbid men to exercise their constitutional rights, are of course void.

3d. To forbid men to enter into contracts that have an obligation, and then to infer that the contracts, simply because forbidden, have no obligation, is only a circuitous way of coming to the same end. It is only doing by indirection, what the constitution forbids being done by “any law” whatever. For it is still the law, and the law only, that impairs the obligation of the contract—and “any law” that would produce that effect, is void.

4th. The establishment of a constitution precedes, or is presumed to precede, in point of time, any laws that are to be governed or tested by it. Of course any principles, which the constitution establishes, as a guide to legislation, are principles that are presumed to exist independently of, and anterior to, any legislation under the constitution. The provision then, in the constitution, against impairing the obligation of contracts, assumes that the obligation of contracts is a principle existing at the time the constitution is established, and of course existing independently of any legislation under the constitution—and that it does not depend upon any mere arbitrary rule, that may subsequently be established. It assumes that the obligation of contracts is a principle existing in the nature of things, or at least independently of any legislative will—because it requires that the validity of legislation shall be tested by it. It sets up the obligation of contracts as a standard, by an appeal to which the constitutionality of subsequent legislation may be determined. But if a law were to be passed by the legislature, and the obligation of contracts should then be tested by it, the constitutional order of things would be reversed. The obligation of contracts would then be tried by the assumed authority of the law, instead of the constitutionality of the law being tested by its consistency with the obligation of the contract. The obligation of the contract is the constitutional standard, by which the validity of legislation is to be tried: and laws must conform to this standard, and not the standard be brought down to the measure of the laws.

5th. The constitution is, in its nature, a fundamental law, expressly intended to govern all laws that are, in their nature, temporary, or not fundamental. This fundamental law, like other laws, takes effect from the time of its adoption, and controls all other laws passed subsequently to it. The only question of time, therefore, (if any,) that can arise in the case, is, not whether the impairing law were passed prior or subsequently to the contract, on which it would operate, but whether it [12] were passed subsequently to the adoption of the constitution.

6th. To say that the state legislatures have power to declare what the obligation of contracts shall be, or what contracts shall, and what shall not, have an obligation, is equivalent to saying that they have power to declare what the Constitution of the United States shall mean. And as this meaning would of course be arbitrary, the legislature of each state separately might declare that it should be something different from what it was in any of the other states—and we might consequently have, in every state in the union, a different constitution of the United States on this point. Not only this, but every state legislature might alter, at pleasure, the meaning, which it had itself given to the constitution of the United States. The constitution of the United States, therefore, might not only be different in every different state, but it might be altered in each state at every session of the legislature. Such is the necessary consequence of the doctrine, that the state legislatures have power to prescribe or determine what the obligation of contracts shall be, or what contracts shall be obligatory.

Another ground urged against the views here taken, is the commonly received doctrine, that the law makes a part of the contract. And it is said that a law, operating only upon future contracts, cannot impair their obligation, because it makes a part of them.

In the case of Ogden vs. Saunders (12 Wheaton), where this doctrine was examined more fully, probably, than it has ever been in this country, and combatted and maintained by the ablest counsel in the country, the judges were very much divided, holding no less than four different opinions, as to the relation which a law bore to a contract. A majority were of the opinion that the law did not make a part of the contract. Nevertheless a majority (consisting of four, out of seven, of the judges), was made up, that united in saying that a law passed prior to a contract, did not impair its obligation. This majority was made up in this way. Justice Washington (page 259) and Justice Thompson (page 298) held that the law made a part of the contract. Justice Johnson held that it did not make a part of the contract, but that parties were bound to submit to all “fair and candid” laws on the subject of contracts, whether made before or subsequently to the contract. Justice Trimble (page 317) held that the law did not make a part of the contract, but constituted its obligation. Thus a bare majority was obtained for the decision. But such a decision, by a bare majority, and that majority disagreeing as to the grounds on which it should rest, is of course good for nothing. Besides, one of them (Washington) expressed great doubts whether his opinion were correct, and said that he adopted it only because “he saw, or thought he saw, his way more clear on that side than on the other”—(page 256). The minority of the court, consisting of Chief Justice Marshall, Justices Duvall and Story, held that the law made no part of the contract—that men had a natural right to contract—that that right had never been [13] surrendered to government—that the contract was solely the act of the parties—that its obligation was intrinsic—that the law was merely the remedy provided by government for the breach of contracts, and produced no effect upon a contract unless the contract were first broken—that parties, in making their contracts, could not legally be supposed to look at the law otherwise than as the remedy that would be enforced in case the contract were broken—and, finally, that a law passed prior to a contract, might impair its obligation, and therefore be unconstitutional, as well as one passed subsequently.*

So much for authority. Let us now look at the principle itself.

In the first place, then, the doctrine that any law is a part of a contract, of necessity assumes that the law is constitutional—because, if it be not constitutional, it clearly can make no part of a contract.

Now the legal definition of a contract, is simply an agreement, to do, or not to do, a particular thing. If the law strictly conforms to the intrinsic obligation of this agreement, it obviously has made no part of the agreement itself, because the agreement remains the same that it was before. The law has contributed nothing to it, and of course makes no part of it. On the other hand, if the law is different from the contract, varying its intrinsic obligation in any manner, or in any degree, it is unconstitutional, as impairing its obligation. And it consequently can make no part of the contract, for the reason that an unconstitutional law is void, and has no legal effect upon any thing.

Whether, therefore, a law agrees with a contract, or differs from it, it is no part of the contract itself. If it differs from the intrinsic obligation of the contract, it is unconstitutional, and has no effect whatever upon the contract. If it agree with the contract, it is still no part of it—it is only something subsidiary and remedial.

But it will be said that parties, who expect to have their contracts [14] enforced, must be presumed to have intended to make them according to law. This is true. They must be presumed to have intended to make them according to all constitutional laws—but clearly they cannot be presumed to have intended to make them according to any unconstitutional law. Now, in order that a contract may be according to law, it is only necessary that it should have an intrinsic obligation. So far as any contract has this obligation, it is according to law, for it is according to the fundamental law—the constitution. And this fundamental law has also provided that the people shall not be required to make their contracts according to any other law.

Again. No one will pretend that the law can make entire contracts for parties, without their consent, and then presume their consent, and enforce the contracts as if the parties had actually agreed to them. No one, for instance, will pretend, if the legislature were to pass a law that A should pay B an hundred dollars for his horse, and that B should sell his horse to A for an hundred dollars, that courts would be bound to presume the assent of A or B to this contract, which the law had attempted to make for them. All admit, then, that the law cannot make an entire contract for parties, and then presume their consent. How, then, can it make any part of a contract, and presume their consent? If the law has a right to make the least part of a contract, it has the same right to make a whole one.

The idea that the law makes a part of the contract, cannot be sustained at all, except upon these suppositions, viz, that the natural right of individuals to make contracts, has either been entirely surrendered to government, or entirely usurped by the government—that government exercises the rights thus granted or usurped, so far as it chooses, and then gives back to individuals the privilege of exercising so much of the remainder of their original rights as government thinks it judicious to allow them to exercise. These, let it be particularly remarked, are the only grounds on which it can be pretended that government has power to make any part of a contract. Now, it is evident that, if these suppositions are correct, government has the same right to make entire contracts, that it has to make parts of contracts—and it may accordingly proceed to make bargains to any extent, between individuals—binding, obligatory contracts—to which the individuals themselves may never render any thing but a constructive assent. The government, for example, may compel A to sell his farm to B, at a price fixed by the government, and compel B to buy it, and pay for it, at that price, when neither A nor B consent to the contract. Is this the country, in which a principle, morally and politically so monstrous, is to exist and be recognized as law?

This whole doctrine, that the law is a part of the contract, is a mere fiction, invented or adopted by English courts to uphold the supremacy of their government over the natural rights of the people to make their own contracts. And it has been acted upon in this country only in [15] obedience to arbitrary precedent, and in defiance of our fundamental law, which provides that the natural right of the people to make their own contracts, shall set limits to the power of their governments.

But suppose, for the sake of the argument, that the law were a part of the contract, the result would still be the same—for then the constitution would be a part of the contract—for that is the fundamental law. And the intrinsic obligation of the contract would still have to prevail over any law that was inconsistent with it.

Another ground assumed by those who oppose the view here attempted to be maintained, is, that the word “contract,” in the constitution, is used in a technical sense, borrowed from English precedents, and that therefore the phrase “obligation of contracts,” means only the legal obligation of contracts, or only such obligation as legislatures may please to allow contracts to possess.

But the supreme court of the United States have decided that the language of the constitution is not to be taken in any technical or limited sense, unless it be some parts of it that are plainly intended to be so understood—but that it is to be taken in its popular sense—in that sense, in which the people, for whom it was made, and who adopted it, and gave it all its vitality, may be supposed to have understood it.

If it be said that the word “contract,” in the phrase “obligation of contracts,” is to be understood in a technical sense, and to mean nothing more than legislatures may please to allow it to mean, it may just as well be said that the terms freedom of speech, free exercise of religion, right to keep and bear arms, right to acquire property, and right to enjoy life and liberty, are all to be taken in a technical and limited sense, and to mean nothing more than such a legal freedom of speech, such a legal free exercise of religion, such a legal right to keep and bear arms, such a legal right to acquire property, and such a legal right to enjoy life and liberty, as legislatures may see fit to establish. Such constructions would abolish every bill of rights in the union. It would take from the people all the security afforded by their constitutions for the enjoyment of their natural rights. It would abolish all restraints upon the legislative power, and place every right of the individual at its disposal.

Again. If there could be any doubt about the meaning of language so plain as that which declares that “No State shall pass any law impairing the obligation of contracts,” that doubt would have to be decided in favor of the natural rights of men to make their own contracts—because our institutions, state and national, profess to be founded on the acknowledgement of men’s natural rights, and to be designed to secure them. And the general principles of an instrument must always decide any doubts that may arise as to the meaning of particular parts.

Finally. It is obvious that all these arguments in favor of laws controlling the obligation of contracts, are mere quibbles, pretexts and fictions, [16] resorted to, to evade, or circumvent a plain unambiguous provision of the constitution—a provision too, that seeks only to place men on their natural level with each other—to protect the natural rights of all against the despotic action of legislatures—and to establish the principles of natural justice as the basis of law—a provision, which all men, who do not wish to have their most important rights made the football of legislative faction, folly, ignorance, caprice and tyranny, ought to unite to uphold.

It is also obvious that these arguments are urged almost entirely by men who have been in the habit of regarding the legislative authority as being nearly absolute—and who cannot realize the idea that “the people” of this nation, acting in their primary capacity, should ordain it as a part of their fundamental law—the law that was to govern their government—that their natural right to contract with each other, and “the obligation of their contracts” when made, should not be subjects of legislative caprice or discretion.

If the principles thus attempted to be maintained, be correct, men may exercise at discretion their natural rights to enter into all contracts whatsoever that are in their nature obligatory; and it is the duty and the prerogative of the judiciary alone, to decide upon the obligation of all contracts that come before them for adjudication—and legislatures have no authority to interfere in the matter, further than to prescribe the means to be used for enforcing the obligation of contracts, and the extent to which these means shall be exerted.

Furthermore. If these principles be correct, they not only prohibit all laws restraining private banking, but also all laws restraining the rate of interest for money—all laws forbidding men to make contracts by auction without license, and all other laws in restraint of men’s natural right to contract. They also prohibit the legislature from impairing the obligation of marriage contracts. It is a judicial question whether a marriage contract have been broken by either party—and if it have not been broken, the legislature has no power to discharge the other party from its obligation.

Here let me say, that in order to maintain the unconstitutionality of these laws against banking, usury, &c, it is not necessary to suppose that the people, who adopted the constitution, actually foresaw that the principle they were establishing in regard to contracts, would, when carried out, produce this particular effect. This result, for aught that concerns the argument, may be admitted to be one of the details of its operation, which they never dreamed of. They did not know, and could not pretend to know, all the forms which the future contracts of an enterprising and commercial people might assume—and even if they had known them, no special note would have been taken of them separately, in the instrument they were adopting. The object of a constitution is to establish principles—not to follow out the operation of those principles in all their ramifications. That is the business [17] of the legislative and judicial tribunals under the constitution. All, then, that it is necessary for us to suppose in the case, is, that “the people,” who established the constitution, recognized the inherent right of men to contract with each other—and the intrinsic rectitude of the principle that should maintain the inviolability of all their obligatory contracts. That they also saw that these principles were vital to the free commercial intercourse of the citizens of the different States with each other—and that they saw the danger to which these principles would be exposed, if left to the caprice of numerous rival, and, in many cases, illiberal, unwise and tyrannical local legislatures. That they, therefore, ordained that these principles should be recognized throughout the country, and govern the dealings and contracts of the people with each other—and that no local or subordinate government should “pass any law impairing the obligation” of any of their contracts.

The supreme court of the United States, in the case of Sturges and Crowningshield, (4 Wheaton 209), have expressed the comprehensive purpose of the constitution, on this point, as follows. The court say, “The principle, which the framers of the constitution intended to establish, was the inviolability of contracts. This principle was to be protected, in whatever form it might be assailed. To what purpose enumerate the particular modes of violation, when it was intended to forbid all. Had an enumeration of all the laws, which might violate contracts, been attempted, the provision must have been less complete, and involved in more perplexity than it now is.”

Viewing the purpose of the prohibition in this light, is there another clause in the whole instrument, that does more credit to those who framed, or to the people that adopted, the constitution, than this? Is there another clause, which more strongly discloses their love of personal liberty, their sense of justice, and their respect for the equal and natural rights of men? It in fact establishes a great principle of civil liberty. It embodies also the most wise, benevolent, and far-reaching principle of political economy—a principle, the natural and necessary operation of which is, to produce the greatest aggregate increase, and the most equal distribution of wealth, that can be accomplished, consistently with men’s personal rights—for it gives to each individual, what no other principle can, the full command, and the entire profit, of all his legitimate resources.*

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CHAP. II.: WHAT BANK CHARTERS ARE UNCONSTITUTIONAL.

If the principles of the foregoing chapter are correct, then all bank-charters, and other acts of incorporation, which would relieve the stockholders from the full liability incurred by the terms of their contracts, are unconstitutional, as impairing the obligation of contracts. Such are most of the bank charters, and other acts of incorporation, in this country.

But it will, perhaps, be said that such charters are themselves contracts—and that their obligation, therefore, cannot be impaired.

For the sake of the argument it may be admitted that a charter is a contract—but it does not follow that it is one having an “obligation.” To decide whether any contract have an obligation, we must determine whether the contract be, in itself, just or unjust, moral or immoral.

Some charters are merely an authority to the corporators to use a corporate name in their dealings and contracts, and in suing and being sued—the corporators still remaining liable, as partners, to the extent of their means, for the debts of the company. To the constitutionality of such charters, there is probably no ground of objection.

But the other kind of charters profess to guaranty to individuals the immunities, (to a certain extent,) of a joint, incorporeal, intangible being. They declare that these individuals shall, in certain contingencies, be deemed to be such a being. And the object is to protect them severally in the non-performance of their joint contracts. Now it is obviously impossible for legislation to create such a being, or entity, as it here professes to do. For, after all, who are “The President, Directors and Company” of a bank, but real bona fide men, who, in making contracts, consult their own interests like other men—who are as competent as other men to make contracts, and who, so far as the obligations of justice are concerned, are as much responsible for their acts, as if they had never passed through such an operation as that of being fictitiously transformed into an unreal being. Now, it is to be observed, as has been already suggested, that the whole object and effect (if any) of this legislative legerdemain, is to give to these individuals an immunity against all personal liability for the contracts they may make. The question now is, whether this “contract,” or pledge, on the part of the state, that these individuals shall be regarded, in law, as an imaginary, incorporeal being, or rather as so many imaginary, incorporeal beings, and that they shall be held irresponsible, as men, for the contracts they may enter into, is an obligatory contract?

Perhaps this question cannot be better answered, than by asking another. Suppose, then, a legislature, for the purpose of enabling them [19] to perpetrate their crimes with impunity, should assume to incorporate a gang of burglars, and to guaranty to them all the immunities, such as intangibility, irresponsibility &c, that would pertain to a joint incorporeal being. Would such a charter be an “obligatory contract?” Clearly not. But would it not be as obligatory as one that should pledge to men the privilege of contracting debts, without the liability of being held to pay them?

A bank charter, then, of the kind now under discussion, so far as it is in the nature of a “contract,” is a mere agreement, on the part of the state, to screen men against their just liability for their debts. In their character of “contracts,” then, these charters are void—void for the same reason that all immoral contracts are void, viz, that] justice does not require their fulfilment.

Suppose a legislature should say to a single individual, who was worth fifty thousand dollars, “Sir, If you will invest ten thousand dollars of your money in mercantile, manufacturing, or agricultural business, you shall be allowed to issue unconditional promises to pay to the amount of three times the sum you invest, and if your enterprize prove successful, you shall have all the profits—but if it prove unsuccessful, you shall lose only the ten thousand dollars which you intended to risk, and we will then protect you in refusing to pay your creditors the other twenty thousand, which you shall have promised them—and you may then retire to indulge your dignity on the forty thousand dollars that will still remain to you.” Is there a man in the whole country, that would not declare such a contract to be a nefarious and swindling agreement, destitute of “obligation?” Void for immorality? Yet such are most of our bank charters. All the difference is, that in a bank charter, the agreement is with twenty, or an hundred men, instead of one.

Bank charters, of this kind, then, are void in their character of “contracts.” They are also void in their character of laws. They are unconstitutional as impairing the obligations of the contracts made by the company. They declare that the absolute promises, that may be entered into by the individuals, composing the company, to pay money, shall not, in law, be held to be absolute promises, but only promises to pay in a certain contingency—that is, in the contingency that they can be fulfilled without requiring more money than the individuals were willing to risk when they made the contract. The charters, then, impair the obligation of contracts, by making those promises contingent, which in their terms are absolute.

If a state law can declare that certain obligatory promises to pay money, shall be void in the contingency of their payment requiring more money than the promissors intended to put at risk, (a contingency not mentioned in the contracts the themselves,) it may equally declare that contracts shall be void in any other contingency whatever—in the contingency, for instance, of a hail-storm, or a thunder-shower.

[20]

But it will, of course, be said that the promises of a banking company are made, by the company, in their joint, incorporeal, intangible capacity. The answer to this argument is, that this idea of a joint, incorporeal being, made up of several real persons, is nothing but a fiction. It has no reality in it. It is a fiction adopted merely to get rid of the consequences of facts. An act of legislation cannot transform twenty living, real persons, into one joint, incorporeal being. After all the legislative juggling that can be devised, “the company” will still be nothing more, less or other, than the individuals composing the company. The idea of an incorporeal being, capable of carrying on banking operations, is ridiculous. The theory of one incorporeal being is not, and cannot be, consistently sustained throughout the various doings of the company. For instance, when the agents of the company, the President and Cashier, enter into contracts on behalf of the company, to pay money, they act under the dictation of the stockholders, voting severally and individually, as so many distinct and real persons, though a committee of their number, called directors. The making of the contract, then, is the act of real persons—and necessarily must be, for no others can make contracts. But no sooner does their liability for their contracts come in question, than these real persons claim that they have been resolved, by law, into an imaginary, intangible, and purely legal being. So also when the profits of their contracts are to be received and enjoyed, these same stockholders, who authorised the contracts to be made in their name, appear in their real, bona fide, corporeal nature, to receive those profits, and put them in their pockets. But in that moment when the fulfilment of their contracts comes to be demanded, presto! they have all vanished into an incorporeality. There is nothing left of them, but a “legal idea!”

Now does not a law, which allows men to make contracts in their proper persons, and would then screen them from all personal liability on those contracts, by giving them the liberty to shroud themselves, at pleasure, in a fictitious, incorporeal, intangible nature—does not such a law “impair the obligation of their contracts?” Or is this fictitious nature a sufficient plea in bar of the promises they have personally made?

Suppose the Constitution of the United States had declared that “no State should pass any law impairing a man’s right to be protected against burglars.” And suppose a state should then incorporate a company of burglars, by a charter that should guaranty to them full liberty to commit burglary, in concert, in their own proper persons, and then authorize them severally to plead a joint, incorporeal, fictitious, intangible nature, in bar of an indictment by the grand jury. Would not such a charter be void, as being a law prohibited by the constitution? Or would it really be a good plea for these burglars to say, “we committed our crimes, it is true, in our own proper persons; but it was, nevertheless, [21] in our joint, incorporeal, irresponsible capacity, and of course we cannot be held liable to such corporal responsibility and punishment, as are justly incurred by those vulgar burglars, who are not thus privileged in the commission of their offences?” The case is a fair parallel to that of a bank charter.

If such bank charters are valid, their effect is to give to individuals the advantage of two legal natures—one favorable for making contracts, the other favorable for avoiding the responsibility of them, when made. Another effect is, to convert an unconditional promise, of individuals, to pay money, into a mere promise to pay, provided they should not choose to refuse to pay—or provided they should not choose to transform themselves into a joint, fictitious, incorporeal, and non-debt paying, being.

Perhaps it will be said that these bank charters are public acts, and that the public must be presumed to have known of them, and to have trusted the company only to the extent of their chartered liability. The answer is, that the public must also be presumed to have known that any state law, which assumes to screen men from the responsibility incurred by the terms of their contracts, is unconstitutional—and that they must therefore be presumed to have trusted the company on the strength of their promise, without any regard to any unconstitutional law, that would convert an unconditional promise into a contingent one. No man can legally be presumed to have trusted another with reference to a void law, not named in the contract.

If companies or individuals wish to limit their liability on their promises, the limitation must be expressed in the contracts themselves—and not in a law, which, if it lessen the liability expressed in the contract, impairs the obligation of the contract.

Perhaps it will be said that the terms of a bank promise—which are that “the President, Directors and Company of a Bank, promise to pay,” &c—necessarily imply that the promise is a conditional one, limited by the amount of funds already deposited in the joint treasury. But such is not a true or natural construction of the contract. An act of incorporation does not, necessarily, attempt to limit the personal liability of the members of the company. It may, and often does, only grant them the privilege of making contracts, and being known in law, under a corporate name and style, to save them the inconvenience of repeating the several names of the whole company—they being all the while liable, as partners, to the extent of their private property. The promise, therefore, of a “Company,” to pay money, if unconditional in its terms, carriés with it no necessary implication of any limited responsibility on the part of the individuals composing the company. They all join in an absolute promise; and the presumption of law must be, that both they and the public knew that the liability, incurred by such a promise, was unconditional also.

[22]

If these views be correct, the owners of bank stock, and the members of all other incorporations, are liable, in their private property, as partners, on the promises of their respective companies—and even a transfer of their stock does not relieve them from any liabilities incurred while they were stockholders—and the rich stockholders of every insolvent corporation may be sued, and made to pay.

If the foregoing principles are correct, I suggest whether they are not a sufficient objection to the constitutionality of a bank of the United States—or at least to that feature of its charter, which would limit the liability of the stockholders for the debts they may contract among the people, in their capacity of bankers. Congress has no direct authority to pass any law impairing or limiting the obligation of men’s contracts, or screening their property from the operation of state laws, unless it be a “uniform law on the subject of bankruptcies throughout the United States.” A bank charter does not come within the definition of such a law, and therefore it is unconstitutional, unless some other authority for it can be shown.

In the case of M’Culloch and Maryland, (4 Wheaton), the supreme court of the United States affirmed the constitutionality of a bank—but the grounds on which they affirmed it, by no means support the conclusion. The grounds, on which the question was decided, were, that Congress had authority to “pass all laws that were necessary and proper for carrying into execution” the substantive powers of the government—and that, therefore, if a corporation were a convenient and proper agent to be employed in collecting and disbursing the revenues of the government, Congress had a right to create such an agent by an act of incorporation. This doctrine all looks reasonable enough, and it is probably correct law that congress may incorporate a company, and authorize them to do, in their corporate capacity, any thing which they are to do for the government. And congress may undoubtedly limit, at discretion, the liability which the stockholders shall incur to the government. And the company may probably, in their corporate capacity, buy and sell bills of exchange, so far as it may be convenient to do so, in making the necessary transmissions of the public funds from one point of the country to another—because bills of exchange are the most usual safe, cheap and expeditious mode of transmitting money.

But all this is a wholly different thing from a charter authorizing the company, not only to perform these services for the government, but also to carry on the trade of bankers, in all its branches, and contract debts at pleasure among the people, without being liable to have payment of their debts enforced, either according to the natural obligation of contracts, or the laws of the states in which they live. The principles of the decision itself do not justify the grant of any such authority to the company. Those principles go only to the extent of authorizing the [23] company to use their corporate rights in doing the business of the government alone—for the court say, that if an agent be needed to perform certain services for the government, the government may create an agent for that purpose. The court admit also, that the necessity of such agent for carrying into execution the powers of the government, is the only foundation of the right to create the agent. This principle evidently excludes the idea of creating the corporation for any other purpose—and of course it excludes the right of giving it any other corporate powers than that of performing the services required by the government. Now in order that the company may collect, keep and disburse the revenues, (which are the only services the government requires, or which the decision of the court contemplates that the bank will perform), it plainly is not at all necessary that they should also have the privilege of contracting debts among the people, as bankers, in their corporate capacity, or under a limited liability, or with an exemption from the operation of those state laws, to which all other citizens are liable. If congress may, by a charter, thus protect the private property of a company of bankers, from liability for their banking debts, according to the laws of the States, merely because, in addition to their banking business, they perform for the government the service of collecting and disbursing its revenues, then, by the same rule, congress may by law forbid the state governments to touch the private property of any collector of the customs, or of any clerk in the custom house, for the purpose of satisfying his debts. And the result of this doctrine would be, that every person, who should perform the slighest service of any kind for the government, might be authorized by congress to contract private debts at pleasure among the people, and then claim the protection of Congress, not merely for his person, but also for his property, against the state laws which would enforce the obligation of his contracts. Every postmaster, for instance, and every mail-contractor might have this privilege granted to them, as part consideration for their services—for Congress have the same right to grant this privilege to postmasters and mail-carriers, in consideration of the particular services they perform for the government, as they have to grant it to a company of bankers, as a consideration for their collecting and disbursing the general revenues of the government. There is no difference, in principle, between an act incorporating a company of mail-carriers, with banking powers, and an immunity against their debts, and one incorporating, with like powers and immunities, those who collect and disburse the revenue.

Suppose that Congress, in consideration of the engagement of a certain number of men to carry the mail between such and such points, should assume to incorporate them for that purpose—and, under cover of that pretence, should licence them also to carry on the additional business of common carriers of passengers and merchandize, and, in [24] that capacity, to extend their business throughout the several states at pleasure, and contract debts among the people, with an immunity against both the natural obligation of their contracts, and the laws of the States for the collection of debts—is there a man who would not say that such a charter was unconstitutional? No. Nor is there a man who can point out the difference, in principle, between such a charter, and the charters of the banks of the United States.

CHAP. III.: WHAT BANK CHARTERS ARE CONSTITUTIONAL.

A Charter, that merely authorizes individuals to assume, and be known in law by, a corporate name, without pledging to them any protection against the ordinary liability of other individuals on their contracts, cannot be considered unconstitutional on the ground of “impairing the obligation of contracts.”

The usual objections made to the constitutionality of bank charters, is, that they are an evasion of that clause, which declares that “no State shall emit bills of credit.” The argument is, that what the State does by another, it does by itself—and that the creation of corporations, for the purpose of issuing bills of credit, is therefore as much a violation of the constitution as if the states were themselves to issue them. The principle is of course correct, that what one does by another, is done by himself—but the application of the principle to the case of banks chartered by a state, assumes two propositions, which are false, viz, 1st. That these corporations derive their authority to issue bills, from the grant of the state—and 2d. That in issuing them, they act as the agents of the state. Neither of these positions is correct. To issue bills of credit, that is, promissory notes, is a natural right. It is also a right, the exercise of which is specially protected by the constitution of the United States, as has been shown in a former chapter. It is one that the state governments cannot take from their citizens, and all those laws, which have attempted to deprive them of this right, are unconstitutional. The act of incorporation, then, gives no new right in this respect. It only authorizes the corporators to use a corporate name, in making such contracts, and doing such business, as they had a previous right to make and do in their own names. It also allows them to be known in law by that corporate name. The right of banking, or of contracting debts by giving promissory notes for the payment of money, is as much a natural right, as that of manufacturing cotton—and an act of legislation, incorporating a banking company, no more confers the right of banking, than an act incorporating a cotton manufacturing company, confers the right of manufacturing cotton.

Banking corporations, then, are not, in any essential particular, the “creatures” of the state governments. Those governments create neither the individual corporators—nor furnish the capital with which they carry on their business. Nor do they confer the right of carrying on any business, which, but for the grant, they could not lawfully have carried on as individuals. A banking corporation is not necessarily any thing more than a certain number of individuals, exercising their natural and constitutional rights, and permitted to be known in law, under a different name and style from their ordinary ones. Neither are they, in any sense whatever, the agents of the State. They do not issue their bills of credit, for, or on behalf of, the state. The state does not “emit bills of credit” through them, any more than it manufactures cotton through the agency of the manufacturing companies, which it incorporates. Neither does the state furnish any of their capital, or participate in their profits. In short, these corporations are merely associations of men, doing a lawful business for themselves alone, under a name and style which the state permits them to assume.

If the granting of corporate names to banking companies, be a violation of the constitutional prohibition against the “state’s emitting bills of credit,” the granting of a corporate name to a manufacturing company, that should, in the course of its business, issue its promissory notes, would be equally such a violation. But will any one say that the promissory notes of all incorporated manufacturing companies are unconstitutional and void, as being within the prohibition to the States to “emit bills of credit?”

It must be evident, I think, that the prohibition upon the “states” to “emit bills of credit,” is a prohibition only upon the emission of bills upon the credit of the states themselves.

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CHAP. IV.: THE POWER OF CONGRESS OVER THE CURRENCY.

It is a general rule of construction, that where the constitution has clearly and particularly defined a power given to congress, that definition limits the power. And I know of no reason that has ever been given why this rule does not apply in this case, as well as in any other. What then are the powers of Congress over the currency?

All the powers that are expressly given to Congress, over the currency, are the powers “to coin money, and regulate the value thereof, and of foreign coins”—and “to provide for the punishment of counterfeiting the securities and current coin of the United States.”

These powers are certainly very few, very simple, very definite, and perfectly intelligible. First, “To coin money”—we all know what that means. Second, “To regulate the value thereof, and of foreign coins”—that is, to fix their legal value relatively with each other. This also is a very definite and intelligible power. Third, “To provide for the punishment of counterfeiting the securities and current coin of the United States.” This power is also so clearly expressed, that its limits are distinctly seen. It authorizes the punishment of “counterfeits”—that is, fraudulent imitations, of the securities and current coin of the United States—and it does nothing more. These are all the powers expressed in the constitution, on this subject—and strange as it may appear, not one of them embraces any power “to regulate exchanges,” or to regulate any other currency than coin, or to prohibit or punish the use of any thing, as a currency, except it be “counterfeits,” or fraudulent imitations, of the securities or current coin of the United States.

But collateral with these powers of Congress, is a prohibition upon the States, “to coin money, emit bills of credit, or make any thing but gold and silver coin a tender in payment of debts.”

These are the only provisions relied upon by the advocates of a compulsory metallic currency, to prove that it was the intention of the constitution that the people should not be allowed voluntarily to use any currency except such as might be provided for them by the government, in conformity with these provisions.

The confusion that has arisen on this point, seems all to have resulted from confounding the terms “money” and “currency.” It seems to have been taken for granted that all currency is necessarily money. But this is by no means the fact. It is true that “money” is pretty likely to be used as currency, to some extent—though it is not necessarily so to any considerable extent—and there can be no legal compulsion upon the people to use it as currency at all. But there may be many kinds of currency besides money. Currency may be any thing having value, or presumed to have value, which, on account of its greater convenience, or for lack of money, or for any other reason, is by [26] mutual consent of the parties to bargains, given and received in lieu of, or in preference to, money.

Coined money, which is the only kind of money recognized by our constitution, consists of pieces of metals stamped by authority of government. The metals, previous to being stamped, are mere merchandize like any other commodity. The pieces of metal stamped, are of a particular weight and fineness prescribed by law—and the object and effect of the stamp are merely to fix upon them the government certificate to their amount and quality.

It was undoubtedly supposed that these coins, on account of their portableness, and on account of their amount and quality being accurately known, would be bought and sold, to a considerable extent, from hand to hand, as a currency, that is, in exchange for other commodities. But there is no evidence of any intention, on the part of the constitution, to preclude the people from the enjoyment of their natural right freely to buy and sell, from hand to hand, any other articles of property, which the parties might agree upon—whether those articles should be notes of hand, certificates of stock, bills of exchange, drafts, orders, checks, or whatever else might happen to be convenient for such purposes.

The more important object of the coins probably was to provide an article or subject of “tender in payment of debts,” that should be uniform throughout the country, and of nearly equal value in every part of it. It was of very great importance to the promotion of free commercial intercourse between the citizens of the different states, (which was one of the greatest objects the constitution was intended to secure,) that the subject of “tender” should be uniform throughout the country—otherwise contracts, made in one state, might not be strictly, or even tolerably, enforced, in the other states. And hence it is provided that “no state shall make any thing but gold and silver coin a tender in payment of debts.”*

“Currency” may consist of any thing that is a legitimate subject of bargain and sale, provided it be so portable, and its value capable of being so nearly and readily judged of, as that parties to bargains are willing frequently to buy and sell it, in exchange for other commodities.—The use of any article as currency, (whether the article be coined money or any thing else,) consists merely in buying and selling it frequently—or more frequently than property in general. Now the constitution of the United States lays no restraint upon the frequent purchase and sale of any article of marketable property whatever.

Experience proves, that the value of promissory notes, checks, bills [27] of exchange, certificates of stock &c., can, in many cases, be so nearly and readily judged of, that men as readily agree upon their value, and as willingly buy and sell them in the course of their dealings with each other, as they do coined money, and that in many cases they even prefer them to money. In so far as they are voluntarily bought and sold in this manner, they constitute as legitimate and legal a currency, as money itself. The principal practical difference between this kind of currency and money, is this. The latter is a legal subject of “tender,” that is, a debtor can require his creditor to receive it, or nothing, in payment of his dues—whereas he cannot require him to receive any other “currency.” If the creditor voluntarily receive the other currency, the debt is cancelled as legally and effectually as if the payment had been made in money. But if the creditor, either because he doubt the solvency of the paper currency, or for any other reason, elect to refuse it, the debtor must then procure and tender the money, before he can demand that his debt be cancelled.

The principles contended for by some advocates of metallic currency, that coined money is the only article that can constitutionally be used as a currency—that is, that it is the only article of property that can be legally bought and sold frequently—would lay very great restraints upon trade, and be a manifest violation of men’s natural and constitutional right to contract, make bargains, and exchange and acquire property.

Again. The constitution expressly provides for an exclusive “tender”—but it has no provision whatever in prohibition of any merely voluntary currency that might obtain among the people. Nor could there consistently have been any such prohibition, unless on the supposition that the people were incompetent to make their own bargains. This express provision for an exclusive “tender,” and the entire omission of any provision in regard to an exclusive currency, could not have been matters of accident. It was well known, at the adoption of the constitution, that paper currency was in use both in this country and elsewhere, and if the constitution had intended to lay any restraint upon its use, so far as it might be voluntary between individuals, it certainly would have contained some explicit provision on the subject.

But it is said that coined money is established as a “standard of value,” and that it was the intention of the constitution, that all other commodities should be “measured” by it—that is, bought and sold with and for it—(for that is the only way of measuring the value of commodities by money)—and that the use of any other currency, varies the value of this standard. This is a very common, but certainly a very groundless and preposterous argument. Strange as the fact must be presumed to appear to these “standard” advocates, it is nevertheless true, that the constitution no where authorizes or suggests the establishment of any “standard” for measuring the “value” of commodities in general. It expressly authorizes a “standard of weights and measures”—but it nowhere [28] alludes to a “standard of value.” And the reason of this omission probably was, that the framers of the constitution understood two things, viz, that the value of any “standard” must of necessity be as uncertain and conjectural as the value of the commodities to be measured by it—and, secondly, that as the value of any standard must depend principally upon the value of the commodity of which it should be composed, the standard itself must necessarily and constantly vary and fluctuate in value like other commodities—that is, according to the wants, necessities and caprices of mankind in regard to the use of that commodity.

Money or coin, properly speaking, instead of being a “standard of value,” is a mere commodity, whose quantity and quality are ascertained—but whose “value” is a matter of conjecture, caprice and fluctuation, like the value of all other commodities. Instead of measuring the value of other commodities, it is merely sold for other commodities, just as other commodities are sold for it. It no more measures the value of other commodities, than other commodities measure its value.

It was undoubtedly supposed by the framers of the constitution, that the “money,” which was to be “coined,” and which was to constitute the only legal “tender in payment of debts,” would be the commodity, in which debts would generally be promised to be paid. And the government itself coins this money, and places its stamp upon it, and prohibits and punishes any counterfeiting or imitation of it, in order that parties, and especially courts of justice, may always know with certainty, (without having the article weighed and assayed again,) whether the thing tendered by the debtor, be the identical thing, in quantity and quality, that he had promised to pay. But the government does not at all assume to fix the value of this money that is promised. It only adopts the means necessary for having the thing itself indentified—its quantity and quality proved. It leaves the “value” of the thing to be conjectured, as the value of all things must be. The value of the thing too, may be greater, or it may be less, at the time when it is paid or delivered, than it was at the time the promise was made. This will depend, in a measure, upon the greater or less consumption or use there is, by the community, of the material of which the money is composed. But the government takes no note of this variation. It leaves the parties, debtor and creditor, to take each their respective risks as to whether the value of the money promised, will be greater or less, at the time of payment, than at the time of making the contracts. The government provides only that the identical thing promised, shall be paid—it at no time attempts to dictate the value that either party, or the public, shall put upon that article. The government, in short, prescribes only the quantity and quality of their coins—leaving their value to be regulated by the wants of society, and to be conjectured by each individual who may at any time buy or sell them. It does nothing, and has a right to do nothing, to prevent a depreciation in their value, in consequence [29] of the people’s buying and selling other articles of property in preference to them.

But it will be said that Congress are authorized “to coin money, and regulate the value thereof, and of foreign coins.” This is true—but its obvious meaning is, that Congress shall fix the value of each kind or piece of coin, relatively with the other kinds or pieces,—that they shall, for instance, decide what weight and fineness in a silver coin, shall constitute it equal in value to a gold coin of a certain weight and fineness. It means that they shall have power to declare that a dollar of silver shall be equal in value to a dollar of gold, and that they shall decide what weight and fineness of each of these metals shall constitute the dollar, or unit of reference. Congress, then, have power to fix the value of the different coins, relatively with each other—or to make them, respectively, standards of each other’s value. But they have no power to make them “standards of the value” of anything else, than each other—or to fix their value relatively with any thing, but each other. Nobody will pretend that Congress have power to fix the value of coin relatively with wheat, oats or hay—that they have power to say that a dollar shall be equal in value to a bushel, a peck, or even a pint, of wheat or oats. And it is only in the single case of a “tender in payment of debts,” that the legal value of the coins, relatively with each other, can be set up. In all other cases individuals are at perfect liberty to give more or less for any one of the coins than they would for any others of the same legal value.

But it will perhaps be argued that the custom of mankind is to measure the value of commodities generally by the value of coin—and that it was the intention of the constitution that coin should be, in practice, a “standard of value.” But this custom is by no means universally observed, for different kinds of property are continually exchanged, or bought and sold with and for each other, without the value of either being estimated in coin—and nobody doubts the legality of such purchases and sales. And even when the value is estimated in coin, it is the result of habit and convenience, and not of any requirement of law. But, in point of fact, when any article of property is sold for coin, such article as much measures the value of the coin, as the coin measures the value of such article. If a dollar in coin and a bushel of wheat are exchanged for each other, the wheat as much measures the value of the dollar, as the dollar measures the value of the wheat.

We hear much of an analogy between a “standard of weights and measures,” and a “standard of value”—as if the constitution recognized such an analogy. But no such analogy is recognized by the constitution, nor does it, nor can it exist in fact. It exists mainly in sound. They differ in the essential quality of a standard, viz, that of being fixed. Standards of quantity can be fixed, and when fixed, they remain unalterable—because they consist of certain amounts of matter, and matter is indestructible. They also bear a fixed, ascertainable and [30] unalterable proportion to other quantities of matter. But the values of different commodities, as compared with each other, can only be conjectured at any time, and the values of all articles, (as well those that may be selected as standards, as any others,) necessarily fluctuate with the ever varying wants and caprices of mankind—for it is only the wants and caprices of mankind that give value to any thing.*

But admitting, for the sake of the argument, that coins are “standards, of value”—and that there is presumed to be, by the constitution, and that there actually is, an analogy between a “standard of weights and measures,” and a “standard of value”—still nothing can be inferred from that analogy, to justify any restraint upon the free use of such other currency than coin, as parties may voluntarily agree to give and receive in their bargains with each other. Congress fixes the length of the yard-stick, in order that there may be some standard, known in law, with reference to which contracts may conveniently be made, (if the parties choose to refer to them,) and accurately enforced by courts of justice when made. But there is no compulsion upon the people to use this standard in their ordinary dealings. If, for instance, two parties are dealing in cloth, they may, if they both assent to it, measure it by a cane or a broom-handle, and the admeasurement is as legal as if made with a yard-stick. Or parties may measure grain in a basket, or wine in a bucket, or weigh sugar with a stone. Or they may buy and sell all these articles in bulk, without any admeasurement at all. All that is necessary to make such bargains legal, is, that both parties should understandingly and voluntarily assent to them—and that there should be no fraud on the part of either party. The use of a paper currency is somewhat analogous to the use of some other measure of quantity than those standards specially instituted by law. Whenever other currency than coin is given and received, it is necessarily done with the knowledge and consent of both parties—because the difference between the form and material of a promissory note, and those of a [31] metallic dollar, is so great as to render the substitution of one for the other, without the knowledge of both parties, impossible.

One argument more is perhaps worthy of notice. It is said that the “regulation of the currency, is a prerogative of sovereignty”—and it is hence taken for granted to be a prerogative of our own governments. It may be, and probably is, an assumed prerogative of all despotic governments—for such governments assume to control every thing they please. But our governments have no prerogatives except what the people have given to them*—and among those, is no one to dictate what articles of property may, and what may not, be bought and sold so frequently as to become practically a currency. The power to coin money, and regulate the value thereof, and of foreign coins, and to make those coins an exclusive “tender in payment of debts,” and to provide for the punishment of counterfeiting the securities and current coin of the United States, are the only prerogatives conferred by the people upon our governments, with any direct or evident view to a “control of the currency.” The object of conferring these prerogatives on the government, obviously is, to prevent litigation, and facilitate the enforcement of contracts by courts of justice, by providing a legal medium for paying debts, where the parties cannot otherwise agree between themselves. And it was doubtless also another object, incidentally, to furnish a convenient currency, which the people should be at liberty to use, (that is, buy and sell,) if they should choose to do so. But such prerogatives as these are as different from that of restraining the people from the frequent purchase and sale of any thing else that they may prefer to these coins, as liberty is from tyranny.

But—granting all that the advocates of a compulsory metallic currency claim—that it is a prerogative of government to regulate the currency—that our coins are standards of value—and that the value of these standards will be varied, unless the use of all other currency be [32] prohibited—grant all this, and it makes nothing in favor of any power in the state governments to regulate the value of this standard, either by usury laws, or by restraining the use of any other currency that the people may choose. Congress have all the power that exists in either government, for “regulating the value of coined money,” and if they, either from choice, or because they have no power to do otherwise, have left the value of this money to be regulated by the best of all regulators—the laws of trade, and the wants of the people—any attempt, on the part of the state governments, to interfere with such regulation, is as impertinent as it is unconstitutional.

ERRATA.

“Chap. 5” &c., in the table of contents—“become” for became, on the 13th page, one line from the bottom of the note.

Endnotes

*

If contracts had had no obligation of their own, there might have been some reason for supposing that the words of the constitution referred to some obligation, which the government might assume to create, and annex to contracts. But when contracts really have the obligation, which is so precisely and naturally described by the words of the constitution, and when this is the only obligation that is acknowledged or enforced among men, it is absurd to pretend, because this obligation has not always been enforced to the letter, that the constitution intended to pass it by in silence, and apply its language to some other obligation, thereafter to be created, and the nature of which could not be anticipated.

*

This minority, however, made one admission, that was inconsistent with their general doctrines. It was, that “acts against usury,” which “declared the contract (wholly) void from the beginning,” and “denied it all original obligation,” were valid. They thus held that the constitutional prohibition against “any law impairing the obligation of contracts,” might be forestalled by a law declaring that contracts should have no obligation to be impaired. But they might as well have held that a constitutional prohibition against impairing a man’s right to life and liberty, might be forestalled by a law declaring that no person, thereafter to be born, should be deemed to have any right to life and liberty; or that the constitutional prohibition against “any law abridging the freedom of speech,” might be forestalled by a law declaring that, from and after a certain time, there should be no freedom of speech to be abridged. Mr. Webster, in his argument of the cause, made the same inconsiderate admission. No reasons were given for it, by any of them, except the naked unsustained assertion, that the States had power to prohibit such contracts. This inconsistent and groundless admission was turned against them, at the time, and made to destroy the force of their otherwise able arguments.

Throughout the whole case, the court and counsel, on all sides, seemed to take it for granted that statute law was a guide in constitutional interpretation, and that it was more important to sustain certain statute laws of the states, than to support the constitution of the United States. How both could be sustained was an inexplicable matter. Some thought it could be done only in one way, and some only in another—and hence the irreconcilable difficulties and disagreements, in which they become involved. None of them had courage to come up to the mark of sustaining the constitution, and quashing outright every thing inconsistent with it.

*

The dissenting opinion of Marshall, Duvall and Story, in the case of Ogden and Saunders, (12 Wheaton,) although, as before mentioned, not a consistent one throughout, is yet a very admirable and conclusive argument in support of the intrinsic obligation of contracts, and of the right of individuals, under our constitution, to make their own contracts. The opinions of the majority of the court are also instructive, as showing how the minds of those composing our highest tribunal, bow to the authority of fictions and precedents designed merely to sustain monarchical and arbitrary power, and how incapable they are of appreciating the free principles of our own constitutions.

*

The decision, of some of our state courts, that bank bills are a legal tender, unless objected to by the creditor, are palpably unconstitutional. The courts have as much right to say that the promissory notes of any other individuals, who are supposed to be solvent, are a legal tender, unless objected to, as to say that the promissory notes of a company of bankers are such a tender.

*

The value of gold and silver, as currency, depends mainly upon the value they have for other purposes, such as gilding, dentistry, watches, ornaments &c. And their value for these latter purposes, depends upon their beauty and utility, compared with those of other articles, that are continually manufactured, invented and discovered, and made to compete with them in gratifying the wants and vanity of men. This value is affected again, by prevailing fashions, and the greater or less fondness of society for trinkets, ornaments &c. This value is modified still further, by the scarcity or abundance of the metals themselves—by the discovery of new mines, the barrenness and fertility of old ones, and the price of labor in mining countries. Their value is also controlled and changed, in one country, by the legislation of other countries. And their general value, throughout the world, is continually varied by the ever changing conditions of society—by war, by peace, by the progress of the arts, and the increase of wealth, population and commerce. If it were, (as it is not,) in the nature of things, that a “standard of value” could be established at all, a more unstable and tensile standard than gold and silver, could hardly be found. And every touch of legislation, instead of fixing, serves but to contract or extend it. When the various elements of value, viz, fancy, fashion, caprice, utility, necessity, supply, demand, production, consumption, labor, legislation, war, peace, the progress of the arts, wealth, population, commerce, and, above all, the judgments of men in estimating value, shall all be brought under the jurisdiction of the legislature, and made to obey the statutes in such cases made and provided, it will then be in time to talk about establishing “standards of value.”

*

I am aware that it is the judicial doctrine, in this country, that our state governments possess all powers, except what are expressly prohibited to them. But this doctrine had the same origin with the one that the law makes a part of the contract. It is a purely despotic doctrine, and is borrowed from governments founded originally in force and usurpation, and which have retained all powers, except what have been wrested from them by the people. It is a consistent principle, that such governments have all powers, except what are prohibited to them. And our judges, in blind obedience to monarchical precedents, or in base subserviency to legislative usurpation, have introduced the principle into this country. But our governments, neither state nor national, were founded in force or usurpation; nor do they exist either by natural or divine right. They are mere institutions, voluntarily created by the people. Their very existence and all their powers are derived solely and wholly from the grants of the people. Of necessity, therefore, they can have no powers, except what are granted. This principle is universally admitted to be true of the national government, and it is equally true, (and for the same reason,) of the state governments. The contrary doctrine is the authority, and the only authority, for a large mass of state legislation, destructive of men’s natural rights. Of this legislation, the laws restraining private banking and the rates of interest, are specimens. These two doctrines, that the law makes a part of the contract, and that the state legislatures have all powers, except what are specially prohibited to them are illustrations of the insidious manner, in which the judiciary lend their sanction to the most sweeping encroachments upon individual liberty, and the vital principles of our governments.

T.6 The Unconstitutionality of the Laws of Congress, Prohibiting Private Mails (1844).↩

Title

[6.] The Unconstitutionality of the Laws of Congress, Prohibiting Private Mails (New York: Tribune Printing Establishment, 1844).

- also online </titles/2231>.

Text

TO THE PUBLIC.

The American Letter Mail Company present the following exposition of the grounds on which they assert their right to establish mails and post offices, in competition with those of Congress.

If the public are satisfied of the correctness of the principle, the Company ask their patronage to enable them to sustain it.

CONTENTS:

- 1 Argument.

- 2 Review of the Postmaster General’s Argument.

- 3 Expediency.

UNCONSTITUTIONALITY OF THE LAWS OF CONGRESS, PROHIBITING PRIVATE MAILS.

ARGUMENT.

Of the following propositions, almost any one of them is sufficient, I apprehend, to prove the unconstitutionality of all laws prohibiting private mails.

1. The Constitution of the United States (Art. 1. Sec. 8.) declares that “the Congress shall have power to establish post-offices and post roads.”

These words contain the whole grant, and therefore express the extent of the authority granted to Congress. They define the power, and the power is limited by the definition. The power of Congress, then, is simply “to establish post-offices and post roads,” of their own—not to interfere with those established by others.

2. The constitution expresses, neither in terms, nor by necessary implication, any prohibition upon the establishment of mails, post-offices and post roads, by the states or individuals.

3. The constitution expresses, neither in terms, nor by necessary implication, any surrender, on the part of the people, of their own natural rights to establish mails, post offices, or post-roads, at pleasure.

4. The simple grant of an authority, whether to an individual or a government, to do a particular act, gives the grantee no authority to forbid others to do acts of the same kind. It gives him no authority at all, relative to the acts of others, unless the acts of others would be incompatible, or in conflict, or collision, with the act he is authorized to do. It does not authorize him to consider mere competition and rivalry, as conflict, collision, or incompatibility.

This doctrine fully admits that Congress “have power to make all laws which shall be necessary and proper for carrying into execution” their own power of establishing post-offices and post-roads.” But, then, it asserts that every law they pass, must, in order to be constitutional, be a direct, positive, affirmative step in actual “execution” of their own power. It must, in some way, contribute, affirmatively, to the establishment of their own mails. But the suppression of private mails is not an act at all in “execution” of the power “to establish” others. If Congress [6] were to suppress all private mails, they would not thereby have done the first act in “execution” of the power given them by the constitution, to establish mails. The entire work executing their power of establishing mails, would still remain to be done.

This doctrine also fully admits the absolute authority of Congress over whatever mails they do establish. It admits their right to forbid any resistance being offered to their progress, and to prohibit and punish depredations upon them. But it, at the same time, asserts that the power of Congress is confined exclusively to the establishment, management, transportation and protection of their own mails.

5. It cannot be said to be necessary to prohibit competition, in order to obtain funds for establishing the government mail—because Congress, in order to carry out this power, as well as others, are authorized, if necessary, “to lay and collect taxes, duties, imposts and excises”—and this is the only compulsory mode, mentioned in the constitution, for providing for the support of any department of the government. They are under no more constitutional constraint to make the post-office support itself, than to make the army, the navy, the Judiciary, or the Executive support itself.*

6. The power given to Congress, is simply “to establish post-offices and post roads” of their own, not to forbid similar establishments by the States or people.

The power “to establish post-offices and post roads” of their own, and the power to forbid competition, are, in their nature, distinct powers—the former not at all implying the latter—any more than the power, on the part of Congress, to borrow money, implies a power to forbid the people and States to come into market and bid for money in competition with Congress. Congress could probably borrow money much more advantageously, if they could prohibit the people from coming into the market and bidding for it in competition with them. But the advantage to be derived by Congress from such a prohibition upon the people, would not authorize them to resort to it, even though the people were to offer so high a rate of interest, that Congress could not borrow a dollar in competition with them. Congress must abide the competition of the people in borrowing money, be the result what it may. And they must abide [7] the same competition in the business of carrying letters; and for the same reason, viz:—because no power has been granted them to prohibit the competition.

7. The power granted to Congress, on the subject of mails, is, both in its terms, and in its nature, additional to, not destructive of, the pre-existing rights of the States, and the natural rights of the people.

The object of the grant to Congress undoubtedly was to enable the government, in the first place, to provide for its own wants, and then to contribute, incidentally, as far as it might, to the convenience of the people. But the grant contains no evidence of any intention to prohibit the States or people from using such means as they had, so far as those means might be adequate to their wants. Any other doctrine than this would imply that the people were made for the benefit of the department, and not the department for the benefit of the people.

8. In matters of government, the people are principals, and the government mere agents. And it is only as the servants and agents of the people, that Congress can “establish post-offices and post roads”. Now it is perfectly clear that a principal, by simply authorizing an agent to carry on a particular business in his name, gives the agent no promise that he, (the principal,) will not also himself personally carry on business of the same kind. He plainly surrenders no right to carry on the same kind of business at pleasure. And the agent has no claim even to be consulted, as to whether his principal shall set up a rival establishment to the one that is entrusted to the agent. The whole authority of the agent is limited simply to the management of the establishment confided to him.

9. It is a natural right of men to labor for each other for hire. This right is involved in the right to acquire property; a right which is guarantied by most of the State constitutions, and not forbidden by the national constitution. No law which forbids the exercise of this right in a particular case, can be constitutional, unless a clear authority be shown for it in the constitution. No authority is shown for prohibiting the labor of carrying letters.

10. If there were any doubt as to the legal construction of the authority given to Congress, that doubt would have to be decided in favor of the largest liberty, and the natural rights of individuals, because our governments, state and national, profess to be founded on the acknowledgment of men’s natural rights, and to be designed to secure them; and any thing ambiguous must be decided in conformity with this principle.

11. The idea, that the business of carrying letters is, in its nature, a unit, or monopoly, is derived from the practice of arbitrary governments, who have either made the business a monopoly in the hands of the government, [8] or granted it as a monopoly to individuals. There is nothing in the nature of the business itself, any more than in the business of transporting passengers and merchandise, that should make it a monopoly, either in the hands of the government or of individuals. Probably one great, if not the principal motive of despotic governments, for maintaining this monopoly in their own hands, is, that in case of necessity, they may use it as an engine of police, and in times of civil commotion, it is used in this manner. The adoption of the same system in this country shows how blindly and thoughtlessly we follow the precedents of other countries, without reference to the despotic purposes in which they had their origin.

12. An individual who carries letters, cannot be said to usurp, or even to exercise, an authority that is granted to Congress—for Congress have authority to carry only such letters as individuals choose to offer them for carriage. Whereas a private mail carries only those letters which individuals choose not to offer to the government mail. The authority of Congress over letters, does not commence until the letters are actually deposited with them for conveyance; and therefore the carrying of letters that have never been deposited with them for conveyance, does not conflict at all with the power of Congress to carry all the letters that they have any authority to carry.

13. It cannot be said that an individual who carries letters, is doing the same thing that Congress are authorized to do. He is not doing the same thing, but only a thing of the same kind. This distinction is material and decisive. There is no objection to his doing things of the same kind as Congress, (so far as he has the natural power and right to do them), unless the Constitution plainly prohibits it.

14. If Congress could forbid individuals doing a thing simply because it was similar to what the government had power to do, they might forbid his borrowing money, because “to borrow money,” is one of the powers granted to Congress. They might also, on the same grounds, forbid parties to settle their controversies by referring them to men chosen by themselves, because government has established courts, and given them authority to settle controversies, and references to other tribunals, chosen by the parties, is depriving this department of the government of a part of its business, and the marshals, clerks, and jurors of the opportunity of earning fees. There is just as much ground, in the constitution, for prohibitions upon the settlement of controversies, without the aid of the government courts, as there is for the prohibitions upon the transmission of letters without the aid of the government mail.

15. Suppose the Constitution had declared that Congress should have power “to establish roads and vehicles for the transportation of passengers and merchandise” (instead of letters). Would such a grant have authorized [9] Congress to forbid either the States or individuals to establish roads and vehicles in competition with those of Congress? Clearly not. Yet that case would be a perfect parallel to the case of the post office.

16. If Congress can restrain individuals from carrying letters, on the ground that the revenues of the post office are diminished thereby, they may, by the same rule, prohibit any other labor, that tends to diminish the revenues derived from any other particular source. They may, for instance, forbid the manufacture, at home, of articles that come in competition with articles imported, on the ground that such home manufactures diminish the revenues from imports.

17. The extent of the power “to establish post offices and post roads,” certainly cannot go beyond the meaning of the word “establish.” This meaning is to be determined by regarding, first, the persons using the word, and, secondly, the object to which it is applied. The persons using it, are “We the people”—for the preamble to the constitution declares that “We the people do ordain and establish this constitution.” The word then is used in its popular sense; in that sense in which it is ordinarily used by the mass of the people.* That such is the true meaning of all the language of the constitution, is obvious from the consideration that otherwise we should be obliged to suppose that the people entered into a compact or agreement with each other, without knowing what they themselves meant by the language they used. Besides, the word “establish” has no technical meaning whatever, nor had any, so far as we know, at the time the constitution was adopted. But, secondly, the meaning of the word is to be inferred also from the nature of the object to which it is applied. Thus, we “establish” a principle, by making it clear, proving it true, and thus fixing it in the mind. We “establish” a law, by giving it force and authority. A man “establishes” his character, by making it thoroughly known to the world. We “establish” a [10] fact, by the evidence necessary to sustain it. In these, and other cases, the word “establish” has no exclusive meaning whatever, other than this. It excludes what is necessarily inconsistent with, contradictory to, or incompatible with, the establishment of the thing declared to be established. It does not exclude the establishment of any number of other things of the same kind, unless they would be necessarily inconsistent with the thing first established. Thus the establishment of one truth does not imply the subversion or suppression of any other truth; because all truths are consistent with each other. The establishment of one man’s character, does not imply the destruction of any other man’s character. When applied to matters of business, as for instance, to the establishment of facilities for the transmission of letters, (and the transmission of letters is a mere matter of business), the word “establish” has no meaning that implies an exclusion of competition. Thus we speak of the establishment of a bank, a store, a hotel, a line of stages, or steamboats, or packets. But this expression does not imply at all that there are not other banks, stores, hotels, stages, steamboats, and packets “established” in competition with them. Neither does the establishment of certain roads as “post roads,” imply the exclusion of all other posts, than those of Congress, from those roads. Congress establishes a road as a “post road,” by simply designating it as one over which their posts shall travel. This designation clearly does not exclude the passage of any number of private posts over the same road, (provided the government posts are not thereby actually obstructed or impeded in their progress,) because the establishment of any one thing implies the exclusion of nothing whatever, except what is absolutely inconsistent, or incompatible, with the thing established. The designation, therefore, or the establishment of a particular road as a post road, excludes nothing except obstacles to the progress of the posts over that road. The prohibition, therefore, of Congress upon the passage of other posts over the same roads travelled by their own, is going beyond the simple power of establishing those roads as post roads, and beyond the simple power of establishing their own posts upon those roads.*

If Congress owned the roads over which their posts travel, they would have a right to exclude all other posts from them; not, however, by virtue of their power to establish those roads as post roads, but by virtue of their power to control the use of their own property.

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18. The word “establish,” when applied to any particular thing, does not imply that the thing established contributes, either in whole, or even in part, to the necessary expenses of its own maintenance. For instance, Congress have power to establish forts, arsenals and lighthouses—but it does not follow that the forts, arsenals and lighthouses are expected to support themselves. Congress have power to establish courts, but it does not follow that the courts are to derive their support, either directly or indirectly, from the business done in them. The same is the case with the army, the navy, and all the departments of the Government.—None of these establishments are expected to derive their support from their business. Yet no compulsory process, except that of “laying and collecting taxes, duties, imposts and excises,” is authorized for the support of any of them. If individuals voluntarily send letters enough by the government mail, to pay the expenses of the establishment—well—if not, the establishment must go down, or be sustained like all the other departments of the government, by general taxation—and not by restraints upon competition.

19. By the old articles of Confederation, it was declared that “the United States, in Congress assembled, shall have the sole and exclusive right and power of establishing and regulating post-offices from one State to another throughout all the United States.”

When the constitution came to be adopted, this phraseology was altered, and the words “sole and exclusive” were omitted. This alteration of the power, from a “sole and exclusive” one, to a simple “power,” must certainly have been intentional—and it clearly indicates that the framers of the constitution did not intend to give to Congress, under the constitution, the same “exclusive” power, that had been possessed by the Congress of the Confederation.

20. The 10th Sec., of the 1st Art., of the constitution contains an enumeration of various prohibitions upon the State governments. They are prohibited from entering into any treaty, alliance or confederation—granting letters of marque and reprisal—coining money—emitting bills of credit—making any thing but gold and silver coin a tender in payment of debts—passing any bill of attainder, ex post facto law, or law impairing the obligation of contracts—laying any imposts or duties on imports or exports, without the consent of Congress, except what may be necessary for executing their inspection laws—or, without the consent of Congress, laying any duty on tonnage, keeping troops or ships of war in time of peace, entering into any agreement or compact with other States, or with foreign powers, or engaging in war, unless actually invaded, or in such imminent danger as will not admit of delay.

Among all these prohibitions, why is there none against establishing [12] mails? The answer is obvious. The constitution did not intend to prohibit them.

21. If the right granted to Congress, to carry letters, be an exclusive right, it is, of necessity, an exclusive right for the whole country, and not merely for such roads and offices as Congress may see fit to establish. And it would, therefore, be as much unconstitutional for individuals to establish mails on routes where Congress had not established any, as where they had. And the consequence would be, that the people would have no constitutional right to have any mails at all, except such as Congress might please to establish for them.

22. If the constitution had intended to give to Congress the exclusive right of establishing mails, it would have required, and not merely permitted, Congress to establish them—so that the people might be sure of having mails. But now Congress are no more obliged to establish mails, than they are to declare war. And in case they should neglect or refuse to establish them, the people could have no mails, unless individuals or the states have now the right of establishing them.

23. It would have been as unconstitutional for individuals to establish mails, if Congress had neglected to do it altogether, as it is to establish them in competition with those established by Congress—for the unconstitutionality of private mails, (if they are unconstitutional,) consists, not in the competition, but in the exercise of a right that belongs exclusively to Congress.

24. If the power granted to Congress, be an exclusive right of establishing mails, then Congress have no authority even to permit individuals to establish mails on their own account, either on routes where Congress have, or on those where they have not established them. Such permission would be, so far, abdicating government in favor of such individuals. Congress have no more right to abdicate any power of this kind, than to abdicate, to an individual, the power of making laws.

25. If the exclusive right of carrying letters, has been granted to Congress, then it is unconstitutional for a person even to carry a single letter for a friend. And Congress are bound to punish such an act as an offence against the constitution.

26. No one, I presume, has ever doubted that individuals would have a right to establish mails, but for the law of Congress forbidding them. Yet if the constitution had given Congress the exclusive right, private mails would have been unconstitutional, without the law. On the other hand, if the constitution have not given Congress the exclusive right, then the law prohibiting private mails, is without any constitutional authority. It is certain, therefore, that Congress, the courts, and the country have always been in an error, either as to the grant in the constitution, or the constitutionality of the law—if not as to both.

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27. It may, perhaps, be pretended that an exclusive authority to establish mails, is a prerogative of sovereignty, and, therefore, of the government. But this is a notion borrowed wholly from arbitrary governments. Our governments have no prerogatives of sovereignty, except such as are granted to them by our constitutions. And these prerogatives are limited by the terms of the grants, without any regard to the extent of similar prerogatives under monarchical or despotic governments.

28. The only rules of interpretation, so far as I know, that have ever been laid down for determining whether a power granted to Congress, is to be held by them exclusively, or only concurrently with the states or people, are those laid down by Hamilton and Madison, who, above all other men, were the fathers of the constitution. Those rules are given by them, in the Federalist, and are there treated by them, as being infallible criteria by which all questions of this nature may be settled. The essays of the Federalist have ever, from the adoption of the constitution, been considered the very highest authority, on questions of constitutional law, next to the decisions of the Supreme Court of the United States. And these particular rules of interpretation are constantly cited, in discussions before that tribunal, and have never, so far as I am aware, been overruled by them. Judge Story emphatically affirmed them in the case of Houston vs Moore, and said he did “not know that they had ever been seriously doubted.” (5 Wheaton 48 to 50.) The rules are these.

That none of the powers granted to Congress, are held by them exclusively, except in these three cases, 1st. “Where an exclusive authority is, in express terms, granted to the union:” (The grant of “exclusive legislation” over the seat of government, is an instance of this kind,) or, 2d. “where a particular authority is granted to the union, and the exercise of a like authority is prohibited to the states.” (An instance of this kind is furnished in the grant to Congress of a power “to coin money,” and the collateral prohibition “no state shall coin money,”)—or 3d. where an authority is granted to the union, with which a similar authority in the states would be utterly incompatible.” (The power to pass “uniform laws on the subject of bankruptcies throughout the United States,” is an instance of this kind. Bankrupt laws by the states would necessarily destroy the uniformity of the laws on this subject, and hence would be incompatible with the power given to Congress to establish uniformity.

Tried by these rules, the power “to establish post offices and post roads,” has not a shadow of claim to be considered an exclusive one. The terms of the grant are not exclusive—the states or people are not prohibited by any other clause, from exercising a similar power—there is no incompatibility in the simultaneous exercise of such a power by each of the governments and by individuals.

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The rules of interpretation here stated, are treated at length in the Federalist, in connexion with the power of taxation, and the judicial power, and it is mainly, if not solely, by the application of them, in construing the constitution, that the authority of Congress to prohibit all state taxes, is controverted.

The power of taxation, (except upon exports,) is granted to Congress, not only in as ample terms, but in precisely the same terms, as the power “to establish post offices and post roads.” The taxation of the states may often interfere with the taxes of Congress, by rendering them less fertile, or more difficult of collection; and hence it was argued, by the opponents of the constitution, that congress might assume to forbid the states to collect their taxes—But the authors of the Federalist replied, that although “inconveniences” and “interferences of policy” might possibly arise from this rival taxation, yet, inasmuch as the power of taxation had not been granted to Congress in exclusive terms, and the exercise of a similar power had not been prohibited to the states, and there was no incompatibility, or necessary conflict in the co-existence of such a power in each of the governments, therefore it could not be considered an exclusive one in Congress—and that Congress could therefore no more prohibit the state taxes, than the states could prohibit the taxes of Congress. That each government must submit to the competition of the other, as best it might. Such were the opinions of these fathers of the constitution—and unless these principles are correct, every tax, that has been levied for the support of the state governments, since the adoption of the constitution, has been unconstitutional, as infringing the exclusive authority of Congress.*

If, then, the power of taxation is not an exclusive one, the power of establishing post offices and post roads, clearly is not—for both powers are granted in precisely the same terms. The words of the grant are simply, “The Congress shall have power to lay taxes, to establish post offices” &c. Neither power is granted to Congress in exclusive terms—neither is prohibited to the states—nor is there any incompatibility in the existence of such powers in different governments at the same time. The operations of rival mails do not necessarily conflict, but only compete, with each other.

If there be any powers whatever, granted to the general government, and yet held by it concurrently either with the states or individuals, the power of establishing mails is one of them, according to every principle of interpretation that has ever been laid down by any respectable authority. And those who hold that this power is not held concurrently, either with the states or individuals, or both, must hold that Congress holds no power concurrently, either with the states or individuals.

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Again—The 42d number of the Federalist specially notices the post-office power; and notices it in such language as to show conclusively that the authors considered it a concurrent, and not an exclusive power.

They say, “The power of establishing post-roads, must, in every view, be a harmless power—and may, perhaps, by judicious management, become productive of great public conveniency. Nothing, which tends to facilitate the intercourse between the States, can be deemed unworthy of the public care”. And this is all they say on the subject.

Now mark his language—“Nothing that tends to facilitate the intercourse between the States can be deemed unworthy of the public care.” “It may, perhaps, by judicious management, become productive of great public conveniency.” “It must, in every view, be a harmless power.” All this language evidently refers to a power, that might, if judiciously managed, add to existing facilities, but which, at any rate, could not do harm, by taking those facilities away. It applies, therefore, to a concurrent, and not to an exclusive power.

But mark again the strength of this expression—“It must, in every view, (that is in a political, as well as practical one,) be a harmless power.” Did not Mr. Madison and Mr. Hamilton know the despotic purposes, to which an exclusive power over the transmission of all commercial social and political intelligence might be applied? That it was capable of being made one of themost powerful engines of police? As efficient for purposes of despotism as a standing army? Certainly they did. Are they, then, chargeable with the effrontery of telling the people of this country, that an exclusive power, of this sort, “must, in every view, be a harmless power?” No. Their characters forbid such an idea, and they had no motive for such a deception. The conclusion, then, is inevitable, that they did not consider it an exclusive one.

Moreover if any of the opponents of the constitution, by whom the lurking dangers to liberty were hunted through every line and word of the instrument, had considered this power an exclusive one, they would have exposed it; and the authors of the Federalist would not then have treated it in this manner—but would have obviated the objection by showing that the power was only a concurrent one. And they would have shown this, by the same rules of interpretation by which the power of taxation and certain judicial powers are shown to be concurrent. But that it was merely a concurrent power, seems to have been taken for granted, both by the advocates and opponents of the constitution.

But if all the preceding considerations have failed of establishing the unconstitutionality of the laws against private mails, there is still another which alone would be decisive.

The first article of amendment to the constitution, declares that [16] “Congress shall make no law abridging the freedom of speech, or of the press.”

“The freedom of speech,” which is here forbidden to be abridged, is the natural freedom, or that freedom to which a man is entitled of natural right. And the word “speech” does not mean simply utterance with voice, but the communication of ideas. And the right of speech includes a right to communicate ideas in any of the various modes, in which ideas may be conveyed. A man has the same natural right to speak to another on paper, as viva voce. And to speak to a person a thousand miles distant, as to one who is present. Any law, which compels a man to pay a certain sum of money to the government, for the privilege of speaking to a distant individual, or which debars him of the right of employing such a messenger as he prefers to entrust with his communications, “abridges” his “his freedom of speech.”

“The freedom of the press,” too, which is forbidden to be “abridged,” is not the freedom of barely printing books and papers, (for that kind of freedom alone would be of no value, either to the printer or the public,) but it includes the freedom of selling and circulating. And the freedom of selling and circulating, involves the right of conveying them to purchasers by such messengers as one pleases to employ.

If any one is disposed to deny that manuscript correspondence comes under the denomination of “speech,” as that term is used in the constitution, he must adopt the alternative of including it in the term “the press”—for it certainly must be embraced by one or the other.

Finally. If the constitution had intended to give to Congress, the exclusive right of establishing mails, it would have prescribed some rules for the government of them, so as to have secured their privacy, safety, cheapness, and the right of the people to send what information they should please through them. But the constitution has done nothing of this kind. On the contrary, the grant is entirely unqualified—and it has made the power of Congress over such mails as they do establish, entirely absolute. They may say what shall go in them, and what shall not—whether they will carry sealed papers, or only open ones—and even whether sealed papers, deposited in their offices, shall be sacred from the espionage of the government. Their power over their own mails is unqualified in every respect. And if the people have no power to establish mails of their own, their whole rights, both of private correspondence, and of transmitting printed intelligence, are at the feet of the government.

If this power, so absolute over its own mails, were also an exclusive one over all mails, it would be incomparably the most tyrannical, if not [17] the only purely tyrannical feature of the government. The other despotic powers, such as those of unlimited taxation, and unlimited military establishments, may be perverted to purposes of oppression. Yet it was necessary that these powers should be entrusted to the government, for the defence of the nation. But an exclusive and unqualified power over the transmission of intelligence, has no such apology. It has no adaptation to facilitate any thing but the operations of tyranny. It has no aspect whatever, that is favourable either to the liberty or the interests of the people. It is a power that is impossible to be exercised at all, without being exerted unjustifiably. The very maintenance of the exclusive principle involves a tyranny, and a destruction of individual rights, that are now, and ever must be, felt through every ramification of society. The power is already exerted to the great obstruction of commercial intelligence, and nearly to the destruction of all social correspondence, except among the wealthy. But that we are accustomed to such fetters, we would not submit to them for a moment.

To what further extent of tyranny and mischief, this power, in the future growth of the country, may be exerted, we cannot foresee. But the only absolute constitutional guaranty, that the people have against all these evils and dangers, is to be found in the principle, that they have the right, at pleasure, to establish mails of their own. And if the people should now surrender this principle, they would thereby prove that their minds are most happily adapted to the degradation of slavery.

THE POSTMASTER GENERAL’S ARGUMENT.

The argument of the Postmaster General is as follows:—

“This grant of power” (that is, “to establish post offices and post roads,”) “is found in the same clause, (should be “section,”) and is expressed in the same words and language of the grants of power to coin money, to regulate commerce, declare war, &c.”

No argument, in favour of the exclusiveness of the power, can be drawn from the fact here stated. Nearly all the powers granted to Congress, are included in the same section—but who before ever argued that all the powers mentioned in that section, were therefore exclusive?

The power “to lay and collect taxes,” and the power “to borrow money,” are “found in the same clause,” (section), and “expressed (substantially) in the same words and language of the grants to coin money, to declare war, &c.” But the powers to borrow money, and to lay and colject taxes, are not therefore exclusive.

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The Postmaster General is certainly very unfortunate in his analogies. The exclusiveness of the powers “to coin money,” and “to declare war,” does not result from the terms of the grants, as his argument supposes, but from the special prohibitions in another section, to wit,—“no State shall coin money,” and “no state shall declare war.” But for these express prohibitions upon the States, the powers to coin money, and declare war, would have been concurrent powers—else why were these prohibitions inserted? There being no such prohibition in regard to establishing post offices and post roads, that power is concurrent, as those would have been, but for the prohibitions.

Besides, there is no analogy, in principle, between an exclusive power “to declare war,” or “to coin money,” and an exclusive power to establish post offices and post roads; because an individual has a natural power and right to establish post offices and post roads; but he has no natural power or right “to declare (public) war.” He has power only to speak and act for himself. Neither has he any natural power or right “to coin money,” because “to coin” signifies, (according to lexicographers), an act of government, as distinguished from the acts of individuals.

But the powers of Congress “to declare war,” and “to coin money,” are in reality exclusive, only as against the State governments. They are not exclusive of any natural rights on the parts of individuals. The constitutional prohibition upon individuals, to coin money, extends no farther than to prohibitions upon “counterfeiting the securities and current coin of the United States.” Provided individuals do not “counterfeit” or imitate “the securities or current coin of the United States,” they have a perfect right, and Congress have no power to prohibit them, to weigh and assay pieces of gold and silver, mark upon them their weight and fineness, and sell them for whatever they will bring, in competition with the coin of the United States.

It was stated in Congress a few years since, by Mr. Rayner, I think, of North Carolina, that in some parts of the gold region of that State, a considerable portion of their local currency consisted of pieces of gold, weighed, assayed, and marked by an individual, in whom the public had confidence. And this practice was as unquestionably legal, as the sale of gold in any other way. It was no infringement of the rights of Congress.

The same is true in regard to war. Individuals have no natural power to declare public war. But the natural right of individuals to make private war is secured to them by that clause of the constitution, that secures [19] to them the right to keep and bear arms. It is true, the natural right of individuals to make war, extends no farther than is necessary for purposes of defence. Their natural power, however, goes beyond this limit—and if an individual were to exercise his natural power of making war for other purposes than defence, he would be punished only as a murderer or pirate, and solely on the ground of his having transcended his natural right—certainly not on the ground of his having infringed the exclusive power of Congress.

The power of Congress “to regulate commerce,” (which is quoted by the Postmaster General as a parallel case to the post office power), is held to be exclusive solely on the ground of the unity of the subject. In the case of Gibbons vs. Ogden, (9 Wheaton,) Mr. Webster’s argument in favor of the exclusive power of Congress over commerce, was this—that “commerce was a unit,” and that regulations by the States, operating upon the identical thing that was under the regulation of Congress, would necessarily conflict with the regulations of Congress—because, he said, the regulations of Congress may consist as much in leaving some parts free, as in regulating others. And the court concurred in this opinion.

That “commerce” is a unit, is obvious. There is but one “commerce with foreign nations,” into however many parts and varieties it may be subdivided. “Commerce” is a word that has no plural. It embraces every variety, part and parcel of all the different kinds of commerce that are carried on by individuals.

But there is no unity in the term “post offices” or “post roads”—any more than there is in the term stage coaches or steamboats. Suppose the constitution had said that “Congress shall have power to establish stage coaches and steamboats”—would any one have imagined that Congress had thereby acquired the exclusive right of establishing stage coaches and steamboats?

But there is a lack of analogy, in another particular, between the power “to regulate commerce” and the power “to establish post offices and post roads.” The power to “regulate” and the power to “establish,” are, in their nature, very different powers. No power is granted to Congress, to carry on or “establish” commerce on their own account—but only to “regulate” that which is carried on by others. Their post office power is directly the reverse of this. It is a power “to establish post offices” of their own—but not to “regulate” the offices or business of others.

But the Postmaster General says further, that the grant of power “to establish post offices and post roads” “is ample, full, and consequently exclusive.”

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According to this reasoning, the power of Congress “to borrow money” is exclusive—for it is both “ample” and “full”—precisely as ample and full as the power to establish post offices and post roads. The power of taxation (except upon exports) is also “ample, full, and (according to the argument of the Postmaster General) consequently exclusive.”

Such are the absurdities into which men are obliged to run, in order to find apologies for claiming that a simple “power to establish post offices and post roads” is an exclusive one.

But the Post Master General says further: “If a doubt could exist as to the exclusiveness of this grant, that doubt must vanish upon a reference to the 10th article of the amendments to the constitution, which declares ‘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.’ The power to establish post offices and post roads, is plainly and distinctly delegated to the United States. It is, therefore, not a power reserved to the states respectively, or to the people.”

This implication is as unfounded, as it is far-fetched and unnatural. The language quoted by the Post Master General is not contained in the original constitution, but constitutes an amendment, that was subsequently adopted. It is one of the ten amendments, that were adopted soon after the original constitution had gone into operation. These amendments were all adopted for the avowed purpose of quieting the fears of those who thought that too great powers had already been given to the government. Not one of the whole ten purports to grant any new power to Congress, or to enlarge any of the powers that had been previously granted. On the contrary, every one of them, without an exception, purports either to prohibit Congress from stretching their powers beyond the terms of the original grants, or to secure some principle of civil liberty against all pretences of power on the part of Congress. And the very amendment, quoted by the Postmaster General, was obviously designed, and designed solely, as a prohibition upon the usurpation of any power not previously granted. Yet now the Postmaster General, by a back-handed and unnatural implication, would draw, from a simple amendatory prohibition of this kind, a warrant for enlarging all the original powers, and making those exclusive and despotic, which were before harmless and concurrent.

But again. The language of this amendment is simply that: “The powers, not delegated to the United States, by the constitution,” (as distinct from the amendments,) “nor prohibited by it to the states, are reserved to the states respectively, or to the people.” Now the inference of the Postmaster [21] General from this language, might, safely to the argument, be admitted to be correct, if it were also considered what kind of a power, (on the subject of post offices and post roads,) had really been “delegated to the United States by the constitution.” What was that power? It was, as has been shown, merely a power concurrent with that of the states and people, “to establish post offices and post roads.” Only a concurrent power, then, having been delegated, and a like power not having been prohibited to the states or people, it necessarily follows, from the terms of the amendment itself, that a concurrent power to establish them is “reserved” to the states respectively, or to the people—or to both.

But the Postmaster General reasons as if none but exclusive powers had been either delegated or reserved. His whole argument hangs upon this idea. He cannot conceive of concurrent powers. It is probably a mystery to him how even two individuals can have concurrent rights to establish business of any kind in competition with each other.

If the implication of the Postmaster General were correct, the powers of Congress “to lay and collect taxes,” and “to borrow money,” are now exclusive powers—for they are “plainly and distinctly delegated to the United States,” and “therefore” (according to his argument) are “not reserved to the states respectively, or to the people.”

Nearly all the plausibility of the Postmaster General’s argument, (if it have any plausibility,) is derived from the unauthorized use of the article “The.” He says that “The power,” (as if there were, or could be, but one power of the kind, in the country,) “is plainly and distinctly delegated to the United States”—and then infers that it cannot of course be reserved to the states or people—because that would involve an impossibility. Now it happens that the power delegated to the United States, on this subject, is not described, in the constitution, as “the power,” (meaning thereby a sole power)—but it is described simply as “power.” The constitution does not say that Congress shall have “the power”—but only that they shall have “power”—that is, a power—or (more properly still) sufficient power—“to establish post offices and post roads.” He might, with the same propriety, have said that “The power,” (instead of a power,) “to borrow money,” had been delegated to the United States, and that therefore no similar power could be reserved to the states or people—as if there were, or could be, but one power, in the whole country, constitutionally capable of borrowing money. Or he might, with the same propriety, have said that “The power” of taxation—instead of a power of taxation—had been delegated to Congress—and that therefore no similar power had been reserved to the states or people.

When, in common parlance, we use the article “The,” in connexion [22] with a power granted to Congress—as, for instance, in the expression, “The power of congress to borrow money,” or “The power of congress to lay and collect taxes,” or “The power of Congress to establish post offices, and post roads”—we do not use it to designate certain sole powers, or units, but to designate the powers existing in congress, as distinguished from similar or other powers existing in the states or individuals. But the Postmaster General has not only substituted the language of common parlance for the language of the constitution, but has also given to it a different meaning from what, even in common parlance, is attached to it.

The whole argument of the Postmaster General, as has already been said, rests upon the assumption that there is, or can be, but one power of any one kind, in the whole country—and that if this one power be granted to Congress, it cannot, of course, remain with the states or people. If this doctrine were correct, all the powers granted to Congress, would necessarily have been exclusive, without any express prohibitions either upon the states or individuals—and consequently all the express prohibitions, in the constitution, would have been mere surplussage.

But there is still another oversight in the argument of the Postmaster General.

A simple power “to establish post offices and post roads,” and the power of prohibiting similar establishments by others, are, in their nature, distinct powers. The former alone having been delegated to Congress, the latter necessarily remains, and is declared, by the amendment cited, to remain with the states, or the people. Neither the states, nor the people, have seen fit to exercise this prohibitory power, that is thus reserved to them—and they probably never will. They cannot exercise it, without abridging the freedom of speech and the press, and infringing a fundamental principle of civil liberty.

Still further. No implication, natural or unnatural, logical or illogical, necessary or unnecessary, can prevail against an express provision. The provision is express, that “Congress shall make no law” (post office law, or any other,) “abridging the freedom of speech, or of the press.” The power of Congress, then, on this subject, is just what it would have been, and only what it would have been, if the two clauses had stood in connexion, in this wise. “Congress shall have power to establish post offices and post roads,” but “shall make no law abridging the freedom of speech, or of the press.”

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EXPEDIENCY.

The whole argument of expediency in favor of maintaining an exclusive power in the government over mails, may be summed up in this. It enables the government to throw upon those who live in the populous portions of the country, and who have been at the expense of constructing extraordinary facilities for transportation, the burden of all the government postage, and a portion of the expense of carrying mails to those who have voluntarily gone beyond the reach of those facilities, and who have no more claim that their letters shall be carried to them at the expense of other people, than that their food or clothing shall be.

Palpably unjust and tyrannical as are these objects of the law, they are in reality the only arguments that can be invented in support of it.

The policy of the law is on a par with its morality. A law for defraying expenses of government, by a tax upon, and consequently by obstructing the dissemination of, commercial, social and political information, probably combines as many of the elements of barbarism as any law that parverted ingenuity or political depravity has ever devised.

The extortion also of money from individuals in the populous portions of the country, in order to support the present expensive mode of carrying mails to the less populous portions, is, in one respect, like “filching from one his good name”—it is robbing one without enriching another. If the business were open to free competition, there probably is not a man, who lives fairly within the limits of civilization, that would not receive his letters at less cost than he now pays. And if any man has chosen to go beyond those limits, he certainly has no right to claim that we, who remain behind, shall be taxed to carry civilization to him. If, however, the government chooses to pursue such men with its generosity, it should at least have the decency to be generous with means honestly obtained, instead of obtaining them by so unequal and mischievous a tax as that upon the diffusion of knowledge. The progress of the whole civilized portion of the country, certainly ought not to be retarded, in order that the government may show that its partiality for those few individuals, who, by going beyond the limits of civilization, give strong evidence that they do not appreciate its benefits.

But, in reality, the inmates of the farthest cabins on our frontier, are interested in free competition, as a constitutional principle—for even if they should not at once, under that system, (although they probably would soon,) have as good facilities as they now enjoy, it will yet be but a few years before these same cabins will be in the midst of a numerous population, all of whom will be benefitted by the free principle. The inhabitants of the frontier are also, (for their posterity, if not for themselves,) equally interested with other portions of the country, in maintaining the freedom of speech and the press, and the free principles generally of our constitution.

The present expensive, dilatory and exclusive system of mails, is a great national nuisance—commercially, morally and socially. Its immense patronage and power, used, as they always will be, corruptly, make it also a very great political evil.

The moral, social and political evils of the system are of a nature not to be estimated in money. The commercial ones, although incapable of any accurate estimate, are yet of a nature more susceptible of calculation. Let us look at them for a moment.

The importance of despatch in commercial correspondence, may be, in some measure, conceived of, when it is considered that every day’s and hour’s delay, in the sale and transmission of merchandize, (whose sale [24] and transmission wait on correspondence,) involves a loss, during the time of such delay, of the interest, insurance and storage of such merchandize, and also a lapse, in part, of the season when particular kinds of merchandize are most valuable to consumers, and of course command the best prices in the hands of the merchant. Delays in business correspondence of all other kinds, as well as that strictly commercial, are also attended with losses more or less important.

Suppose now that, on an average throughout the whole country, one fifth of the time that is now occupied in the transmission of commercial and other letters, should be saved by opening the business to competition, what would be the aggregate saving, in dollars and cents, to the whole country? Is not twelve thousand dollars a day a moderate estimate? Undoubtedly (I think) the real saving would be very much, probably several times, greater than this sum. But I have mentioned this amount, because it is (in round numbers) the actual expenses of the present establishment. If, then, this sum only could be saved by opening the business to competition, the country, as a whole, could actually afford, as a matter of mere dollars and cents, to let the present establishment retire upon an annual pension, equal in amount to the whole of its present receipt, as a compensation for its simply getting out of the way of private enterprize. In other words, the country could afford to support the establishment in idleness, for the sake of getting rid of its services.

We should also gain, in the bargain, the social benefits of cheap postage, and the political benefits of a very material purification of the government.

The question, then, is, would one fifth of the time now occupied in the transmission of letters, be saved by a system of free competition? There can be but one answer to this question. That amount of saving might not be accomplished at the outset—but it speedily would be. Universal experience attests that government establishments cannot keep pace with private enterprize in matters of business—(and the transmission of letters is a mere matter of business.) Private enterprise has always the most active physical powers, and the most ingenious mental ones. It is constantly increasing its speed, and simplifying and cheapening its operations. But government functionaries, secure in the enjoyment of warm nests, large salaries, official honors and power, and presidential smiles—all of which they are sure of so long as they are the partisans of the President—feel few quickening impulses to labor, and are altogether too independent and dignified personages to move at the speed that commercial interests require. They take office to enjoy its honors and emoluments, not to get their living by the sweat of their brows. They are too well satisfied with their own conditions, to trouble their heads with plans for improving the accustomed modes of doing the business of their departments—too wise in their own estimation, or too jealous of their assumed superiority, to adopt the suggestions of others—too cowardly to innovate—and too selfish to part with any of their power, or reform the abuses on which they thrive. The consequence is, as we now see, that when a cumbrous, clumsy, expensive and dilatory government system is once established, it is nearly impossible to modify or materially improve it. Opening the business to rivalry and free competition, is the only way to get rid of the nuisance.

But even if the government establishment were to continue its operations, competition is still an important principle to its utility; for it is the only principle that can always compel it to adapt its speed and prices to the convenience of the public.

Endnotes

*

There is not even a propriety in making the post-office support itself, any more than in making any other department of the government support itself. An important portion of the expenses of the department are incurred for public objects—such as the transmission of official correspondence, the private correspondence of official men, and of tons, and hundreds of tons, of political documents. If the government are bound to provide for all these things, it should be done at the general charge, and not by the partial and unequal mode of levying double or triple charges upon the private correspondence of individuals. If Congress cannot carry the letters of individuals as cheaply as individuals would do it, there is no propriety in their carrying them at all. The correspondence of private individuals, which is now sent through the public mails, could probably, on an average, be sent through private mails, for one third of the present expense. The overplus, demanded by the government, is an extortion for which there is no justification.

*

In the case of Ogden vs. Saunders (12 Wheaton 332) Chief Justice Marshall said, that in construing the Constitution, “the intention of the instrument must prevail; that this intention must be collected from its words; that its words are to be understood in that sense in which they are generally used by those for whom the instrument was intended.”

Mr. Webster, also, in a speech made in the Senate, in 1840, on the Bankrupt Bill, declared the same principle of interpretation to be the true one. He said:

“What, then, is ‘the subject of bankruptcies?’ or, in other words, what are ‘bankruptcies?’ It is to be remembered that the Constitution grants the powers to Congress, by particular or specific enumeration; and, in making this enumeration it mentions bankruptcies as a head of legislation, or as one of the subjects over which Congress is to possess authority. Bankruptcies are the subject, and the word is most certainly to be taken in its common and popular sense; in that sense in which the people may be supposed to have understood it, when they ratified the Constitution. This is the true rule of interpretation. And I may remark, that it is always a little dangerous, in construing the Constitution, to search for the opinions or understanding of members of the Convention in any other sources than the Constitution itself, because the Constitution owes its whole force and authority to its ratification by the People, and the People judged of it by the meaning most apparent on its face. How particular members may have understood its provisions, if it could be ascertained, would not be conclusive. The question would still be, how did the People understand it? And this can be decided only by giving their usual acceptation to all words not evidently used in a technical sense, and by inquiring, in any case, what was the interpretation or exposition presented to the People, when the subject was under consideration.”

*

Congress themselves have uniformly adopted the above construction, as being the true meaning of the word “establish,” when applied to post roads; for, in addition to their laws “establishing” certain roads as post roads, they have passed other laws specially to exclude other posts than their own. If the simple “establishment” of a road by Congress as a post road, excluded, ipso facto, all other posts, all their special laws of exclusion would be unnecessary.

*

See the Federalist Nos. 31. 32. 33. 34. 35. 36. and 72.

T.7 Poverty: its Illegal Causes and Legal Cure. Part First. (1846). ↩

Title

[7.] Poverty: its Illegal Causes and Legal Cure. Part First. (Boston: Bela Marsh, 1846).

- also online Shorter Works, vol. 1: </titles/2290#lf1531-01_head_024>

Text

CHAPTER I.: ILLEGAL CAUSES OF POVERTY.

The existing poverty would be rapidly removed, and future poverty almost entirely prevented, a more equal distribution of property than now exists accomplished, and the aggregate wealth of society greatly increased, if the principles of natural law, and of our national and state constitutions generally, were adhered to by the judiciary in their decisions in regard to contracts.

These principles are violated by the judiciary in various ways, to wit:

1. In a manner to uphold arbitrary and unconstitutional statutes against freedom in banking, and freedom in the rate of interest; thus denying the natural and constitutional right of the people to make two classes of contracts, which will hereafter be shown to be of vital importance, both to the general increase and to the more equal distribution of wealth.

2. In a manner to extend the obligation of certain contracts beyond their natural and legal limit, and hold men liable to pay debts no longer due; thereby condemning large numbers of men to perpetual poverty and destitution, by making their expired debts a burden upon their future acquisitions, and an obstruction to their obtaining credit for the capital necessary to the successful employment of their industry.

3. In a manner to reduce the obligation of the contracts of corporate bodies below their natural and legal limit, and thus enable the privileged debtors, who have the means of payment, to withhold payment of debts actually due, and make themselves rich by making others poor.

4. In a manner to deny the legal rights of creditors, relatively to each other, in the property of their debtors; enabling, [6] and, in cases of insolvency, compelling debtors to swindle one portion of their creditors for the benefit of another; making it impossible for capitalists to determine, with any reasonable accuracy, the value of personal security for loans; rendering it unsafe for them to loan capital at all to mere laborers; and thus preventing the natural and more equal diffusion of credit among all those poor men, who are in want of capital upon which to bestow their labor, and who, for the want of such capital, are compelled to sell their labor to others for a price much below the amount of its actual products.

These erroneous decisions of the judiciary are made, in some of the cases, in obedience to arbitrary and unconstitutional legislation; in others, through ignorance of the natural law applicable to contracts, where no special legislation has been had.

It will be the object of the following essays to establish the illegality of these various decisions, and to explain their effects in obstructing the increase and more equal distribution of wealth.

But before proceeding to any legal discussions, let us state certain economical propositions, that are obviously conducive, if not indispensably necessary, to the greatest aggregate increase, and most equal distribution of wealth, that can be accomplished consistently with the natural right of each man to the control of his own property. Having stated these propositions, we will then see whether those principles of natural and constitutional law, which our judiciary are bound to adhere to, would secure the establishment or realization of the propositions themselves.

[7]

CHAPTER II.: ECONOMICAL PROPOSITIONS.

Proposition 1. Every man—so far as, consistently with the principles of natural law, he can accomplish it—should be allowed to have the fruits, and all the fruits of his own labor.

That the principle of allowing each man to have, (so far as it is consistent with the principles of natural law that he can have,) all the fruits of his own labor, would conduce to a more just and equal distribution of wealth than now exists, is a proposition too self-evident almost to need illustration. It is an obvious principle of natural justice, that each man should have the fruits of his own labor; and all arbitrary enactments by governments, interfering with this result, are nothing better than robbery. It is also an obvious fact, that the property produced by society, is now distributed in very unequal proportions among those whose labor produced it, and with very little regard to the actual value of each one’s labor in producing it. And this fact is not the result—except in a partial degree—of the superior mental capacities, which enable some men, consistently with honesty and fair competition, to compass more of the means of acquiring wealth than others; but it is the result, in a very important measure, of arbitrary and unjust legislative enactments, and false judicial decisions, which actually deprive a large portion of mankind of their right to the fair and honest exercise of their natural powers, in competition with their fellow-men. That such is the truth will be seen hereafter.

That the principle of allowing each man to have the fruits of his own labor, would also conduce to the aggregate increase of wealth, is obvious, for the reason that each man being, as he then would be, dependent upon his own labor, [8] instead of the labor of others, for his subsistence and wealth, would be under the necessity to labor, and consequently would labor. The aggregate wealth of society would therefore be increased by just so much as the labor of all the members of society should be more productive than the labor of a part. It would also be increased by the operation of another principle, to wit: When a man knows that he is to have all the fruits of his labor, he labors with more zeal, skill, and physical energy, than when he knows—as in the case of one laboring for wages—that a portion of the fruits of his labor are going to another. Under the influence, then, of this principle, that each man should have all the fruits of his own labor, the aggregate wealth of society would be increased in two ways, to wit, first, all men would labor, instead of a part only; and, secondly, each man would labor with more skill, energy, and effect, than hired laborers do now.

Proposition 2. In order that each man may have the fruits of his own labor, it is important, as a general rule, that each man should be his own employer, or work directly for himself, and not for another for wages; because, in the latter case, a part of the fruits of his labor go to his employer, instead of coming to himself.

Proposition 3. That each man may be his own employer, it is necessary that he have materials, or capital, upon which to bestow his labor.

Proposition 4. If a man have not capital of his own, upon which to bestow his labor, it is necessary that he be allowed to obtain it on credit. And in order that he may be able to obtain it on credit, it is necessary that he be allowed to contract for such a rate of interest as will induce a man, having surplus capital, to loan it to him; for the capitalist cannot, consistently with natural law, be compelled to loan his capital against his will. All legislative restraints upon the rate of interest, are, therefore, nothing less than arbitrary and tyrannical restraints upon a man’s natural capacity and natural right to hire capital, upon which to bestow his labor. And, of consequence, they are nothing [9] less than arbitrary and tyrannical restrictions upon the exercise of his right to obtain all the fruits, that he honestly can obtain, from his labor.

The rate of interest, which the capitalist will demand, will depend upon a variety of circumstances, and especially upon the risk of loss attendant upon the loan—in other words, upon the character of the security offered by the borrower for the payment of the loan. This security and consequent risk will differ in the cases of different individuals. The legislation, therefore, that prescribes a fixed rate of interest, beyond which no contracts may go—especially if that limit be, as it usually is, the lowest at which capitalists will loan money on the most approved security—in effect deprives all those, who cannot offer the most approved security, of their right of hiring capital at all.

The great mass of those, who, by reason of not having the most approved security to offer, cannot borrow capital at all at six per cent., could yet, without difficulty, borrow enough to employ their own hands upon, (say from two to ten hundred dollars,) on the credit of their skill, industry, integrity, and ability, and of the value which their labor would add to the capital borrowed, if they were allowed to contract for seven, eight, nine, or ten per cent. interest—enough to pay for the risk of life, health, losses by fire, theft, robbery, &c.; which risks it is perfectly right that the capitalist should be guarded against by an additional rate of interest.

The effect of usury laws, then, is to give a monopoly of the right of borrowing money, to those few, who can offer the most approved security. A man offering the most approved security, can obtain money at six per cent.; while another, whose security is not so acceptable, but who, nevertheless, could obtain money as readily at seven, eight, or nine per cent., as the other does at six, cannot now obtain it at all, simply because he is forbidden to contract for such a rate of interest as would, in the average of loans, compensate capitalists for the additional risk or inconvenience attendant upon the only kind of security he has to offer.

[10]

The consequence is that the loanable capital of society is monopolized almost entirely by those few, those very few, who wish to borrow, and can offer the most approved security; while the mass of those, who have not capital of their own, but who, if left free to make their own contracts, would be able to obtain a portion sufficient to employ their own hands upon, are now, for the want of capital on which to bestow their labor, compelled to sell their labor to those who have, by means of the usury laws, monopolized the capital. And they are compelled to sell their labor at such a price as will enable the employer to make a large profit upon their labor; or, in other words, enable him to put into his own pocket an important portion of the fruits of their labor. All this is the effect of the usury laws. The same laws that enable him to monopolize the loanable capital, enable him also to monopolize the labor of those who cannot borrow capital on which to bestow their labor.

To illustrate the operation of this principle, let us suppose that a capital of five hundred dollars is necessary to employ the labor of one man; that, under the usury laws, A, owing to the approved character of the security he has to offer, can borrow, and does borrow, at six per cent. interest, five hundred dollars capital more than he wants to employ his own hands upon; that B is a poor man, who cannot borrow capital at six per cent., and, therefore, owing to the prohibition of the usury laws, cannot borrow it at all; that he is consequently compelled to sell his labor to A, who has borrowed the necessary capital to employ his labor; that A buys B’s labor for a year, and, after paying his wages, and the interest on the five hundred dollars on which he has employed B to labor, he (A) realizes one hundred dollars profit.

This probably is not an extravagant supposition; for it is probable that employers, who borrow their capital at six per cent., and manage their business judiciously, do generally realize at least an hundred dollars profit from the labor of each adult male laborer they employ.

Now it is plain that if B had been allowed to borrow, and [11] had borrowed, (as he probably could have done,) this same five hundred dollars capital at nine per cent., and had then employed his own hands upon it, he could have put into his own pocket eighty-five dollars more of the fruits of his labor than he did when laboring for A for wages—for he could have had all the fruits of his labor, (that is, the amount both of his wages and the profits made by A,) with but this abatement, viz., that he must have paid three per cent. more interest for his capital than was paid by A. This three per cent. interest, on five hundred dollars, would be fifteen dollars—which, deducted from the hundred dollars that went into A’s pocket as profit, leaves eighty-five dollars to go into B’s own pocket, over and above the amount he received as wages when laboring for A.

This supposition illustrates fairly the operation of usury laws, in depriving the mass of men of the fruits of their labor. These laws give a monopoly of the loanable capital to a few individuals. These individuals, having a monopoly of capital, are able to take advantage of the necessities of all those who have not capital of their own, and are forbidden to borrow any, on which to labor. They thus compel them to sell their labor at a price that will give their employer a large slice out of the products of their labor. The laws themselves are the contrivances, not of the retired rich men, who have capital to loan—for they, of course, wish to carry their money to the largest and freest market—but of those few “enterprising” “business men,” as they are called, who, in and out of legislatures, are more influential than either the rich or the poor; who control the legislation of the country, and who, by means of usury laws, can sponge money from those who are richer, and labor from those who are poorer than themselves—and thus make fortunes. And they are almost the only men who do make fortunes—for almost all fortunes are made out of the capital and labor of other men than those who realize them. Indeed, large fortunes could rarely be made at all by one individual, except by his sponging capital and labor from others. And the usury laws are the means by which he does it.

[12]

The reason given for usury laws is, that they protect the poor from the extortions of the rich. But this reason is a false one—for there is no more extortion in loaning capital to the best bidder, than in selling a horse, or renting a house to the best bidder. The true and fair price of capital, as of everything else, is that price which it will bring in fair and open market. And those who falsely pretend to be interested to prevent the rich extorting money from the poor, in the shape of interest on capital, are the very men who want nothing but an opportunity for themselves both to extort capital from the rich, and labor from the poor, that they may thus fill their own pockets at the expense of other men’s rights. The protection they offer to the poor, is the protection of forbidding them to borrow capital on which to employ their labor, and thus compelling them to sell their labor at a price that enables the purchaser to make a large profit upon it; it is the protection, which, as in the case already supposed, would really extort from them eighty-five dollars of their labor, to save them from the pretended extortion of fifteen dollars in the shape of interest. Leave the rich and the poor to make their own bargains in regard to the interest of capital, and it is as certain as the laws of nature, that capital will find its way into the hands of those who are to perform the labor upon it. In fact, the usury laws impliedly admit that such would be the result—else why do they prescribe such rates of interest as must necessarily confine all loans to a few individuals?

Of all the frauds, by which labor is cheated out of its earnings by legislation, and of all the monopolies established by legislation, probably no one is more purely tyrannical in its character, or more destructive at once of the natural right of individuals to make their own contracts, and of the just distribution of wealth, than that monopoly of the right of borrowing money, which forbids the mass of men to obtain capital, on which to bestow their labor, and thus compels them to sell their labor at a price far below the amount of its actual products.

The law, that allows all men, without distinction, to borrow [13] capital, provided they can borrow it at six per cent. interest, is, in the equality of its operation, like a law that should allow every man perfect freedom to profess and enjoy his own peculiar religion, provided his peculiar religion was the particular and only one that was allowed by the State to be professed and enjoyed by any one.

A statute, that should forbid one man to borrow, at any rate of interest whatever, more capital than he could manage by his own labor alone, would not be tolerated, for the reason that it would be an infringement of men’s natural rights to borrow all they could; yet it would not be half so unequal or pernicious, nor so unjust an infringement of individual rights, nor probably so destructive of the equal distribution of wealth, as are the usury laws, which allow one man to borrow enough to employ a hundred laborers upon, while they forbid the hundred laborers to borrow each enough to employ his own hands upon.

What a change would be wrought upon the face of society, if each adult male laborer, who is now obliged to sell his labor, were to receive, during the prime of his life, eighty-five dollars annually of the fruits of his labor more than he does now; and if all older and younger persons, and females, who are now obliged to sell their labor, were also to receive a similar greater proportion of the fruits of their labor. Yet if the supposition before made be correct, what prevents such a result? If the abolition of the usury laws alone would not accomplish it, the abolition of these and the other tyrannical and unconstitutional restraints upon the freedom of industry, and men’s rights of contract, hereafter to be pointed out, would, I think, certainly accomplish it, at least in the case of all honest, industrious, and ordinarily skillful laborers.

Proposition 5. The laborer not only wants capital, on which to bestow his labor, but he wants to obtain this capital at the lowest rate of interest, at which, in the nature of things, he can obtain it. That he may obtain it at the lowest possible rate of interest, it is necessary that free banking be allowed.

[14]

The correctness of this proposition will be seen, when it is considered what banking really is. Banking is loaning one’s credit, (for circulation as currency,) instead of loaning money.

If a man can afford to loan money for six per cent. interest, he can certainly afford to loan his credit for three. And why? Because whatever profit a man makes by loaning his credit, is clear gain. It costs him nothing; for he still enjoys the use of the houses, lands, or other property, on which his credit is based, in the same manner as if he had not loaned the credit based upon them. But the income, which a man derives from the loan of money itself, is obtained only by the sacrifice, or at the expense of the crops, rents, or other incomes, which he might derive from the lands, houses, or other property, which his money would purchase. If, therefore, a man can afford, for six per cent. interest on his money, to give up all the crops, rents, and other incomes, which he might obtain from the lands, houses, or other property, which his money would purchase, it is plain that for three per cent. he could afford to loan his credit, which costs him nothing but the risk and trouble attendant upon the loan, (which risk and trouble, by the way, are not materially, and, in general, perhaps no greater, than in the loan of money.)

It can hardly be said that there is any profit in loaning money itself; for the interest obtained is generally no more than a fair price or equivalent for the crops, rents, or other incomes, which the property that might be purchased with the money, would yield. But in the loan of credit, there is an actual profit of the whole amount that is received as interest, after paying the trouble and risk of banking.

It is clear, therefore, that if money can be loaned, as it now is, for six per cent. interest, credit could be loaned at two, three, or four per cent.

Since, then, all banking profit is a net profit without cost, and not, like the interest on money, an equivalent for the crops, rents, and other incomes of property, that the lender might have retained and enjoyed; and as the materials for [15] banking credit are abundant, and almost superabundant, it is obvious that if free competition in banking were allowed, the rate of interest on banking credit would be brought very low, and bank loans would be within the reach of everybody whose business and character should make him a reasonably safe person to loan to. Probably every such person could borrow, at six per cent., capital enough to employ his own hands upon; and many would doubtless be able to borrow it for five, four, or even three per cent.

Suppose such were the result, and suppose five hundred dollars capital to be enough to employ each man’s labor, the only difference between the annual income of a man, who should own his capital, and of one who should borrow his, would be barely the interest paid by the latter—that is, fifteen, twenty, twenty-five, or thirty dollars, according as he should pay three, four, five, or six per cent. interest. What a change would be rapidly wrought in the condition of mankind by a system that should supply all the destitute with the use of capital on such terms as these.

If free banking were allowed, the loanable credit could not be monopolized by a few borrowers, as the loanable money now is. The materials for banking credit are so immense, so nearly illimitable indeed, and exist in such a variety of shapes, and are distributed among so many proprietors, that it would be impossible to concentrate them, as money is now concentrated, in the hands, or bring them under the control of a few corporations, or confine the loans based upon them to a few favorite individuals.*

[16]

Banking credit is the best kind of credit for the borrower—and for these reasons.

1. It is obtained at the lowest possible rate of interest.

2. It then enables the borrower to buy, at cash prices, whatever he wishes to buy.

3. Circulating like money itself, and divisible like money itself into small amounts, it enables the borrower to buy his commodities, or materials, in such quantities, of such qualities, and of such persons as it will be most for his interest to buy them—instead of his being compelled, as he is when he buys his commodities on credit, to buy them in such quantities, of such qualities, and of such persons, as it may chance that he can buy them on credit.

So great are the necessities of the poor for materials upon which to bestow their labor, and for the necessaries of life, such as food, clothing and fuel; and so great are the difficulties in the way of getting cash to make their purchases with, that they are compelled to make most of their purchases on credit; to make them of persons who do not wish to give them credit, and who will not give them credit, except at extravagant prices; and also often to buy commodities not the best adapted to their wants. In making their purchases under these circumstances, they not only suffer serious [17] losses in the kinds and qualities of the commodities purchased, but they are also obliged to pay five, ten, fifteen, or twenty per cent. more for them, than they would have to pay if they had cash to buy with. Probably also the retailer (of whom many of their purchases are made) has himself bought his goods on credit of the wholesale dealer, and paid five, ten, or fifteen per cent. more than if he had bought with cash. And this increased price, paid by the retailer, finally falls upon the consumer, in addition to the increased price which the consumer also pays on account of his own want of cash to buy with. Free banking would obviate almost entirely these enhanced prices of commodities, and these losses from the want of adaptation in the commodities to the wants of the purchasers; because, if free banking were allowed, almost everybody, who was worthy of credit at all, both retailer and consumer, could obtain it at the banks, and then make his purchases for cash; and, having cash to purchase with, he would be under no necessity to buy only such commodities as were best adapted to his wants.

It would probably be a moderate estimate to suppose that the poor suffer an average loss—including the losses on price, quality, and adaptation to their wants—of fifteen or twenty per cent. on all their purchases, over what they would pay under a system of free credit currency. Supposing their purchases to be from two to four hundred dollars a year, their losses, at the rate mentioned, would be from thirty to eighty dollars annually—an amount sufficient, if lost, to keep them poor; or, if saved, to give them a competency.

Proposition 6. All credit should be based upon what a man has, and not upon what he has not. A debt should be a lien only upon the property that a man has before and when the debt becomes due; and not upon his earnings after the debt is due. If, therefore, a man be able to pay a debt when it becomes due, he should pay it in full; if unable to pay it in full, he should pay to the extent of his ability; and that payment should be the end of that transaction. [18] The debt should be no lien upon his future acquisitions.

The only exceptions to this rule should be, 1, where the debtor, previous to the debts becoming due, has dishonestly squandered or misapplied the means, which he should have retained for the payment of his debt; and, 2, where he has omitted to do something, which he was plainly bound to do, towards putting himself in a condition to pay. But if he have been honest and faithful in the performance of everything, that, on his part, he was bound to do, the debt should be binding only to the extent of his ability at the time the debt should become due. And this, it will be seen hereafter, in the chapters on the legal nature of debt, is the whole legal obligation of a debt in any case; and, in the case of most debts, it is also the whole moral obligation.

Under the operation of this principle, nearly all debts would be settled at once on their becoming due; and be then settled finally and forever. The creditor would then know what he had got, and would have no occasion to spend any further time, thought, or money, in harassing the debtor by attempts to get more. And the debtor, on his part, would know that he was a free man; and would at once engage in the best employment he could find, without being liable to be disturbed or obstructed by his former creditor, in the prosecution of it. Thus creditor and debtor would be likely thenceforth to be more useful, both to themselves and society, under this arrangement, than under the opposite one, which makes the creditor the enemy of the debtor, and incites him to an expensive, cruel, perpetual, destructive and generally profitless war upon him, his family, and his and their industry.

It may be supposed by some, that credit would not be given, if the legal obligation of debts were limited in this manner. But men would as lief give credit on this principle, as on any other, if they were to understand, when the contract was made, that such was its legal effect; and if they were also to be at liberty to make their own bargains in regard to the rate of interest—for they would then charge [19] an additional interest sufficient to cover the additional risk, if any, that they might suppose to result from this principle. And it would be far better for debtors to pay a slight additional interest, and have the benefit of this principle, than to make their contracts under all the liabilities of the opposite one. The payment of a slight additional interest would be equivalent to paying a slight premium for being insured against the calamity of an arrearage of debt and perpetual poverty, in case of any miscalculation or misfortune on their part.

But the probability is, that the risk to creditors would be no greater, not even so great, under the operation of this principle, as it is without it—and for these reasons.

1. This principle would bring about a general practice of short credits, and prompt settlements; which, for a variety of reasons, too obvious to need enumeration, are altogether safer and better for both debtors and creditors.

2. The debtor, under this principle, has a much stronger motive than he has under the opposite one, to the practice of honesty, industry, and frugality, and—if unable to pay the whole of his debt—to the payment of the most that it is in his power to pay, when the debt becomes due. For he knows that he can thus not only cancel his debt, at its maturity, and be free from it forever, but save his character and credit also. But under the principle of perpetual liability, whenever a man finds that he has made an error in his calculations, and that it will be impossible for him to pay his debt in full, that no exertion on his part can save him from an arrearage of debt, he is apt to think and feel that he is ruined, not only in his present fortune, but in his future credit and prospects. He therefore becomes disheartened, and perhaps idle, prodigal, and dishonest—saying to himself, “I may as well die for a large sum as a small one.” So far as this feeling operates upon the debtor—and that it will operate to a greater or less extent upon all debtors is inevitable—the creditor suffers a corresponding per centage of loss on his debt—a loss that, under the opposite principle, would have been saved.

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But when a debtor contracts a debt with the knowledge that, at its maturity, all that can be required of him by his creditor, will be, that he shall have practised integrity, industry, and frugality, and that he shall make such payment as the practice of these virtues may have enabled him to make, and that, under these circumstances, not only his debt will be cancelled, but his character and credit saved, he has the stimulus of all these motives operating upon him during the whole period from the time the debt is contracted, until it becomes due. And when a man is governed by these motives, during the whole period mentioned, he will almost uniformly be able to pay, at their maturity, all such debts as were prudently contracted; unless he meet with some unusually hard fortune. And even in the case of hard fortune, he would still be able generally to pay the greater part of his debt; for it is not often, if ever, that a man, in the short interval between the time of contracting a debt, and the time the same debt becomes due, meets with such heavy misfortunes as to swallow up everything in his hands.

3. If this principle of law were acted upon, we should have no insolvent or bankrupt laws, as now, discharging men from their contracts arbitrarily, without regarding whether they have been honest or dishonest, prudent or profligate, frugal or extravagant, fortunate or unfortunate. Under the present system, insolvent and bankrupt laws are indispensable to save honest debtors from hopeless and perpetual poverty and want. Yet as these laws apply to large numbers of debts, instead of a single one, it is impossible that they should make such discriminations between the honest and dishonest, the frugal and the extravagant, the fortunate and the unfortunate debtor, as would be made in the case of a single debt, debtor, and creditor. The consequence is, that under the present system, creditors have, and can have, little other security for the honesty of their debtors, than what the principles and interests of the latter may afford. But under the other system, the debtor would be held liable, on each debt, to the scrutiny of his creditor; and would fail of a release from his liability, if dishonesty, profligacy, or extravagance were proved against him.

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Which of these two systems affords the best securities to creditors, it hardly needs further argument to demonstrate.

4. Under the present system, debtors, under certain circumstances, are almost compelled, by the necessities of their condition, to wrong their creditors. For instance—a debtor, before his debt becomes due, finds that it will be out of his power to pay the whole of his debt at the time it becomes due. He knows that this arrearage will be a burden upon his future acquisitions, and that, if he suffer it to become known, it will also be an obstacle to his obtaining such further credit as may be necessary for the successful prosecution of his industry. But his debt not being yet due, and his insolvency not having yet come to light, he has still a credit in the community. He avails himself of this credit in the desperate hope to retrieve his fortune, and save his credit; or, if this cannot be, with the intention of putting as far off as possible the evil day of open insolvency and ruin. He adopts the principle that he will never stop payment so long as his credit is available. (And public opinion justifies him in adopting this principle. The public generally regard a man as a fool, or a coward, who submits to open insolvency so long as he can get credit.) He, therefore, makes new debts to pay old ones; borrows money at ruinous rates of interest; makes desperate moves in his business; every struggle to extricate himself only sinks him deeper in the mire; finally he gets to the end of his credit; his race is run; the insolvent laws come in to settle the matter; and his whole arrearages of debt, and the consequent losses of his creditors, are perhaps ten, twenty, or fifty times greater than they would have been, if he had settled with his first creditor, by paying all he had to pay, when he first found that he was in arrears. Which of the two systems, then, is the best for creditors, as a class?

5. Creditors, as a class—men who have money and capital to loan—have an interest that their customers, the borrowing class, should cancel their debts, by paying what they can, as soon as they find themselves in serious arrears, not only for the reason that their arrears will then usually [22] be many times less than when settlements are postponed, as now, to the latest possible period, but because the debtors will then become good and safe customers to the money lenders again.

6. The principle, that a debt is obligatory only to the extent of the debtor’s means when the debt becomes due, would nearly, if not wholly, put an end to a class of contracts, that are immoral and fraudulent, in intent, if not in law, on the part of the creditors, and which ought never to be enforced against debtors. These contracts are of this kind. An old and experienced man takes advantage of the inexperience and the sanguine anticipations of a young man, to sell him property at enormous prices, giving him credit for the whole, or a part, but well knowing, from his own superior judgment and experience, that the young man will not at all realize his anticipations, or even realize enough from the property to cancel his liability. But he sells the property to him on the calculation that the latter will be able to pay at least the real value of the property; and that, as for the balance, he is a young man, he will be able to work it out; or his friends will pay it for him; or the possession of this property will enable him to get credit of others, and thus he will be enabled to pay this debt by throwing an equivalent amount of loss upon somebody else. Such contracts are plainly immoral and fraudulent, on the part of the creditor, both towards the debtor, and towards others*—although their immorality and fraud are of a character not susceptible of being legally proved and defeated in particular cases. The only way of defeating them seems to be, to adopt the principle that no contract is binding beyond the limits of the debtor’s means.

But it is unnecessary, in this place, to go into a detail of all the benefits, that would result to both debtors and creditors from the adoption of the principle, that a debt is a lien only upon the debtor’s means at the time the debt becomes due. These benefits are obviously of the most important [23] character. And we shall hereafter see that the principle is one of natural law, which all courts, without the aid of legislation, and in defiance of all legislation, are bound to maintain and carry into effect.

Proposition 7. Creditors should have liens upon the property of their debtors, in the order in which their debts are contracted; (with some exceptions hereafter to be named;) and the creditor having the first lien, should be paid in full, before the second receives any portion of his debt. And this principle should apply to all the creditors respectively—each prior creditor having a right to full payment, before a succeeding creditor can receive anything. And it should be held legally fraudulent in a debtor, (except in cases hereafter mentioned,) to pay a subsequent creditor to the prejudice of a prior one.

These principles are just in themselves—they are the principles of natural law—and the effect of them would be much better, for both debtors and creditors, than those that now prevail.

That they are just in themselves, as between creditors, is obvious from the fact, that a personal debt, as, for instance, a promissory note, or a book account, is, in equity, a lien upon all a debtor’s general property, in very nearly the same manner, except in form, that a mortgage is a lien upon a specific parcel of real estate. The second creditor, therefore, in a personal debt, stands in the same relation to a prior creditor, with reference to the general property of the debtor, that a second mortgagee does to a prior one, with reference to a specific parcel of real property, on which they both hold mortgages. He, in effect, takes a second lien upon the debtor’s general property; and he, of course, takes it, subject to the incumbrance of the prior lien, which is entitled to be first satisfied.

One great obstacle in the way of capitalists loaning capital to poor men, under our present system, is, that the creditor holds no claim upon the capital he himself has loaned, or its proceeds, for the security of his debt, in preference to subsequent creditors. If he could hold the first lien upon [24] the capital loaned, and upon the value that should be added to it by the labor of the borrower, it would then generally be safe to lend capital to men who were destitute of any other property.

It is a great defect in the doctrine of liens, as now administered, that it in general recognizes the principle of lien only in relation to specific articles of property; which articles can be used by the debtor, but cannot be exchanged by him for any other property better adapted to his use. This principle does not enable a borrower to give his creditor security upon money, which his creditor loans to him to be employed in business, and which must be exchanged, and perhaps pass through half a dozen different forms before it is repaid to the creditor. What is wanted in order to secure a creditor for money, which he has loaned to be employed by the debtor in business, or for property of any kind which he sells on credit, and which the debtor is to be permitted to convert into property of another kind, is, that he (the creditor) should have a prior right, over any subsequent creditor, to the proceeds of that money, or other property, into whatever shape it may afterwards be converted by the debtor. And this object can be accomplished only by adopting the general principle, that a prior creditor has a prior lien upon the general property of his debtor, for the full satisfaction of his debt.

If A loan capital to Z, when Z is free of debt, it is certainly right that A should be paid out of the proceeds of the capital he himself has loaned, in preference to anybody else. It is therefore right that his debt should be a lien upon that capital, or its proceeds, in the hands of Z; and that Z should have no right, without the consent of A, to dispose of it, or its proceeds, to the prejudice of A, for the benefit of any third person. And he should have no more right to dispose of it, to the prejudice of A, for the benefit of a subsequent creditor, than for the benefit of any other person.

If, therefore, B subsequently give credit, or loan capital to Z, before the debt of A is paid, (or has expired for want of [25] payment,) he gives him credit subject to all the disadvantages of the prior lien that A has upon the property of Z. And this prior lien, which A has upon the property of Z for the capital first loaned to him, will be a lien also upon the capital loaned him by the subsequent creditor, (B,) unless B, at the maturity of A’s debt, shall be able to prove that particular portions of the debtor’s property, still remaining distinguishable from the rest, are parts, or proceeds of the specific capital loaned to him by himself, (B.) That is, the first creditor, when his debt becomes due, will have a prima facie lien upon all the property in the hands of the debtor; and the burden of proof will be upon the subsequent creditors to show that specific portions of the property, which can still be distinguished from the debtor’s general property, were loaned to the debtor by themselves, and were therefore not included in the first creditor’s lien. All those portions of the subsequent loans, or their proceeds, which shall have become indistinguishably mixed with the first loan, or its proceeds, or which the subsequent creditors shall have no legal proof to distinguish from the first loan, or its proceeds, will be held absolutely liable for the satisfaction of the first creditor’s debt.

This principle, of the priority of rights on the part of creditors, will be more fully illustrated hereafter, in the chapters on the legal nature of debt; and the principle will then be shown to be a legal one, which courts are bound to carry into effect. In this place, I shall only point out some of the economical results, that would flow from its adoption.

1. One of these results would be that it would be safe for a capitalist to loan capital to a poor man, if the latter were but free of debt, were a man of integrity and frugality, of ordinary capacity for business, and were engaged in a business that was ordinarily profitable; because the capitalist would have a lien for his debt, not only upon the capital itself, that he had loaned, (or its proceeds,) but also upon all the value that should be added to it by the labor of the debtor. If, for instance, a capitalist should sell to a shoemaker, on credit, two hundred dollars’ worth of leather, or [26] should loan to him two hundred dollars of money with which to buy leather, to be wrought by the latter into shoes he would hold a lien, in preference to any subsequent creditor, not only upon the leather itself, but upon the shoes manufactured from that leather. All the additional value, that should be given to the leather by its being wrought into shoes, would add so much to the creditor’s security for his debt.

The principal drawback upon this security is this, viz., that the laborer and his family must have their subsistence out of the proceeds of their labor—in other words, from the sale of the shoes manufactured. The amount of this drawback will depend upon the number, health, economy, and industry of the debtor’s family. In the case of a young man, just setting out in life, with a wife, and without children, the necessary cost of a frugal subsistence, such as a prudent and reasonable person would be satisfied with, (at least until he had accumulated capital enough of his own to employ his own hands upon,) would probably not consume even one half the value that would be added to the capital by his labor. In the case of larger families, a large proportion of this value would be consumed. But in few or none, unless it were in case of sickness, would it be so nearly consumed as to impair the creditor’s security. This is evident from the fact that laborers now support their families simply upon the wages they receive for their labor, although their wages do not amount to more than one half, two thirds, or three fourths of the value, which their labor adds to the capital on which they are employed, (the rest going into the pockets of their employers.) If, then, they were to have—as, when they were their own employers, they would have—the whole of the value that should be added to the capital by their labor, they could not only subsist as well as they do now, but have considerably more than enough beside to repay the capital borrowed, with interest—because the capital borrowed will itself be sufficient to repay the loan and interest, if but six, seven, eight, nine, or ten per cent., (according as the rate of interest may be,) shall be added to [27] its value by the laborer. Any laborer, having ordinary capacities, could add this amount of value to two, three, or five hundred dollars capital, and still have nine tenths of the whole value or proceeds of his labor left, with which to subsist himself and family. And these nine tenths of the whole value or proceeds of his labor, (when he had two, three, or five hundred dollars capital to work with,) would unquestionably amount to much more than he would receive as wages, when he sold his labor to an employer.

The other drawbacks on the security mentioned, (in addition to the subsistence of the laborer and his family,) are the risks of the health and life of the borrower, and the risk of accidents by fire, &c. These risks, on the aggregate of loans, would be small, and would be guarded against by creditors, by small additional rates of interest, (if usury laws were abolished,) by life insurance, and by insurance on the capital against fire. The costs of guarding against all these risks would amount to no more than a small addition to the rate of interest on the capital, and, being thus provided for, would interpose no serious impediment to the loan of capital to poor men.

One principal, if not insuperable obstacle, in the way of loaning capital to poor men, in the present state of things, is that the creditor has no legal security that the debtor will not contract other debts afterwards, and that the capital, which he has loaned to him, will not be applied, either by the debtor himself, or by the insolvent laws, to the payment of these debts to other men. This obstacle would be entirely removed by the adoption of the principle of the prior right of the prior creditor.

2. Another result of this principle would be the general distribution of credit. A capitalist, about to loan money, would be very cautious of loaning to a person already in debt for capital borrowed of others—lest the capital loaned by himself should become indistinguishably mixed with that borrowed of the prior creditors, and be devoted, in whole or in part, to the payment of such prior creditor’s claims. He would, therefore, seek for borrowers who were [28] free of debt, that he might at least hold a secure lieu upon the capital, which he himself should loan to them. The principle would thus obviously prevent the accumulation of large credits in the hands of single individuals. And by preventing large accumulations of credit in the hands of single individuals, it would promote the distribution of the same aggregate amount of credit, in smaller parcels, among a larger number of individuals. And the same aggregate amount of credits, that now exist in the community, if properly distributed, would probably put into the hands of nearly or quite every laborer in the country an amount of capital sufficient for him to employ his own hands upon.

This principle of the prior right of the prior creditor would be no obstacle to banking, nor to a banker’s paying a second note while a prior one was still in circulation—because a banker’s notes are payable on demand, and are due immediately on their being issued. If, therefore, the holder do not present them when due, (that is, if he do not present them immediately on their being issued,) such omission is a voluntary waiver, on his part, of his right to priority of payment, and allows the banker to pay his notes in the order in which they are presented for payment. The same principle would apply to all other debts that were not demanded when due.

Again; although this principle, of the prior right of the prior creditor, would be an obstacle in the way of a debtor’s getting a second credit, (unless of the same creditor,) before a prior one had become due, it would be no such obstacle after the former one had become due, even though he should have been unable to pay the first credit in full—because, at the maturity of the first credit, he would—if the principle of “Proposition 6” be correct—cancel it by paying to the extent of his means, which would leave him thenceforth a free man.

The result of the two principles stated in propositions 6 and 7, viz., 1, that a debt is binding upon a debtor only to the extent of his means; and, 2, that a prior creditor has a prior lien on his debtor’s property, would be to induce capitalists [29] individually to seek out separate laborers, of capacity, industry, and integrity, who were free of debt, and furnish them respectively with what capital their business should require; and thus save borrowers from the necessity of getting credit, as they do now, in petty parcels, of several different persons. That such would be the result is obvious—because, 1, a capitalist would prefer, as a general rule, not to become the second creditor of a debtor; and, 2, as capitalists would not wish to become the second creditor of a debtor, it would be indispensable, as a general rule, that the first creditor should advance capital enough to enable the debtor to prosecute his business advantageously, else he might lose a part of what he should loan him. The debtor, having a right to cancel his debt, by paying to the extent of his means, would do so whenever the creditor should refuse to furnish sufficient capital to enable him to prosecute his business profitably. And the creditor, when he should see that his debtor was using capital advantageously, would choose to advance to him whatever might be necessary, because such advance would be a profitable investment of his capital. On the other hand, whenever he should find that his debtor was not using capital advantageously, he would withhold any further advances, and, at the maturity of the credit given, close the connexion with as little loss, if any, as possible, by accepting payment to the extent of the debtor’s means, in full discharge of the debt.

The operation of these principles, therefore, would be the establishment of a sort of partnership relation between the capitalist and laborer, or lender and borrower—the former furnishing capital, the latter labor. Out of the joint proceeds of this capital and labor, the laborer would first take enough for an economical subsistence while performing the labor—as it would be necessary that he should, in order that he might perform it. On all the remaining proceeds the capitalist would hold a lien for the amount of capital loaned, and also for such an amount of the increased value given to it by the labor, (say six, seven, eight, nine, or ten per cent.,) as [30] should have been agreed on between them, under the name of interest.

This quasi partnership between the capitalist and laborer, by which the latter is made sure of his subsistence while laboring, and by which the capitalist is made to risk his capital on the final success of the enterprise, without any claim upon the debtor in case of failure, is the true relation between capital and labor, (or, what is the same thing, between the lender and borrower.) And why? 1. Because capital produces nothing without labor; and it is impossible that the laborer should perform the labor, without having his subsistence meanwhile. For these reasons, it is right that the subsistence of the laborer, while bestowing his labor upon the capital, should be the first charge upon the joint proceeds of the capital and labor.”*

2. It is right that the capitalist should be made to risk his capital on the final success of the enterprise, without having any claim upon the debtor in case of failure, (that is, when the debtor performs his part in the enterprise honestly and faithfully;) because, beyond this point, the capital must be risked by somebody, (the capitalist or laborer,) in every enterprise. And inasmuch as profit (in the shape of interest) is as much the object of the capitalist, in furnishing the capital, as (in another shape) it is of the laborer in furnishing labor, it is as much right that he should take the risk of losing his capital, as it is that the laborer should take the risk of losing his labor, (that is, all over and above his subsistence.) The risk is then fairly divided between them; whereas it would not be, if the laborer were to risk both his labor and the capital. If the profit is to be divided in case of profit, the loss ought to be divided in case of loss. It is sufficient to make the enterprise a joint one, if the profit is to be divided in case of profit. And if it be a joint enterprise, it is as much right that the risk of loss should be [31] jointly borne, as that the chance of profit should be jointly enjoyed.

But this joint risk, between the capitalist and laborer, or lender and borrower, as to the final result of an enterprise, in which the labor of the one and the capital of the other are to be jointly employed, for their joint profit, is not only right as between the immediate parties, but it is also right and expedient on general principles of economy—and for this reason, viz., that when both capitalist and laborer are interested in the risks and results of an enterprise, the enterprise will then have the benefit of two heads, instead of one, in judging of its feasibility and probable results, and also in deciding upon the best plan of execution. Injudicious enterprises will then be more likely to be avoided; and less labor and capital will, therefore, be wasted on such enterprises than now are. When a capitalist loans money to a laborer, and knows that he will have a claim on the subsequent earnings of the laborer for any capital that may be sunk in the enterprise, he (the capitalist) does not look, for himself, into the merits of the enterprise as he would if he knew that his ultimate security for his capital depended solely upon the success of the enterprise, instead of depending also upon the subsequent earnings of the laborer.

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CHAPTER III.: ECONOMICAL RESULTS FROM THE PRECEDING PROPOSITIONS

The last four of the preceding propositions assert the following principles, to wit:

1. The right of the parties to contracts to make their own bargains in regard to the rate of interest.

2. The right of free competition in the business of banking.

3. That the legal obligation of a debt, with specific exceptions, is extinguished by the debtor’s making payment to the extent of his means, when the debt becomes due.

4. That the several creditors of the same debtor hold successive liens upon his property, for the full amount of their debts, in the order in which their debts respectively were contracted.

It will hereafter be shown that these several principles are legal ones, founded in natural and constitutional law, that is binding upon all our judicial tribunals, and incapable of being invalidated, or set aside, by any legislative enactments that are within the constitutional power of any of our governments.

It has already been shown, in part, how these principles are adapted to the accomplishment of the following objects, to wit:

1. That of enabling each poor man to obtain, on credit, capital sufficient to employ his own hands upon.

2. That of enabling him to obtain this capital on the most advantageous terms as to interest, and in the most advantageous form for his use.

3. That of enabling him to obtain this capital on credit, without the risk of incurring an arrearage of debt in case of misfortune, or of miscalculation, on his part, as to his ability to pay in full.

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4. That of enabling capitalists to loan capital to poor men, and hold the first lien upon it, in the hands of the debtor, for their payment; and without the risk of having the capital so loaned taken and applied, either by the law, or by the debtor, to the payment of debts to other men.

If such be the operation of these principles, it seems to follow, that, if they would not fully, they would yet very nearly accomplish the object of securing to every poor man, who was honest, industrious, and ordinarily skilful, the enjoyment of his right to labor to the best possible advantage, (by enabling him to obtain capital upon which to labor,) and also of his right to the possession of all the fruits of his labor, except what, in the nature of things, must be paid for the use of the capital upon which he labors.

If there can be any doubt as to such being the result of these principles, it can arise only from a doubt whether capitalists would loan their capital to laborers, or poor men, if the principles of law applicable to the loan, were such as have been described. This question, therefore, becomes important, viz., whether capitalists would loan capital to poor men under such circumstances?

The true answer to this question is, that, although they might not do it immediately, they yet would do it speedily—and for the following reasons:

1. It is obvious that, other things being equal, it would be much more safe for capitalists, especially when they loan on personal security, to loan their capital in small sums to a large number of individuals, who were each their own employers, than in large sums to a small number, who employed the labor of others. It would, for instance, be much more safe to loan fifty thousand dollars, in sums of five hundred dollars each, to one hundred men, who should each bestow their own labor upon it, than to loan the whole fifty thousand to one man, who should employ an hundred other laborers in the management of it. Each of the one hundred men would be more likely to repay the whole of his five hundred dollars, than the one man to repay the whole of his fifty thousand dollars. And why? Because a man can [34] manage, with far less risk and waste, and with much more comparative profit, a capital of five hundred dollars, on which he expends his own, and only his own labor, skill, and calculation, than he can a capital of fifty thousand dollars, on which he is obliged to employ the labor of an hundred others, whose skill, industry, and economy he cannot stimulate to the same degree, to which they would be stimulated, when laboring for themselves. Small borrowers are also less likely to squander their loans in extravagant living, and in extravagant, fanciful, and hazardous enterprises, than large borrowers. The command of large borrowed capitals often intoxicates men with the conceit of their superior judgment in the management of property, or with a vain ambition for display, or with dreams of sudden wealth, or with a passion for magnificent schemes—the consequences of all which are told in deep, perhaps ruinous losses to their creditors. On the other hand, a man who borrows merely capital enough to employ his own hands upon, avoids this intoxication entirely. He thinks only of results, and of skill, industry, and frugality, as the means. The small borrower is therefore much more likely, than the large borrower, to be able to repay his loan. He is also much more likely to be willing to repay it. The temptation to fraud in his case is trivial, compared with that in the case of the other.

2. In the case of small loans to a large number of individuals, each individual is not only more likely, for the reasons already given, to repay the loan, than the single individual is in the case of a large loan, but there is this further security, which is of great consideration with capitalists, who loan money, viz., that in cases of misfortune or fraud on the part of a debtor, the loss is small, not ruinous. If the hundredth debtor fail to pay, the ninety-nine are still solvent. The capitalist is not ruined. He loses but one per cent. of his whole capital. But in the case of the large loan, if the debtor fail, the creditor is ruined, or seriously injured—simply because he has embarked a large freight in one ship.

Capitalists understand these principles, as we see in the [35] case of insurance companies, which act uniformly on the policy of taking a large number of small risks, in preference to a few large ones.

3. There is still another consideration in favor of small loans to a large number of individuals, who are their own employers, over large loans to a small number, who employ the labor of others. It is this. The labor of individuals, who labor for themselves alone, being, for the reasons already given, much more productive, economical, and profitable, than the labor of hirelings, individuals could afford to pay a higher rate of interest—much higher if it were necessary—for the little capital that each man needs to employ his own hands upon, than they can for capital on which to employ the labor of hirelings.

The higher self-respect also, which a man feels, and the higher social position he enjoys, when he is master of his own industry, than when he labors for another, would induce him, if it were necessary, to pay even such a rate of interest for capital as would cut down the not profits of his labor to the same amount that he would receive as a laborer for wages.

The inevitable result of these principles would be that the class of employers, who now stand between the capitalist and laborer, and, by means of usury laws, sponge money from the former, and labor from the latter, and put the plunder into their own pockets, would be forced aside; and the capitalist and laborer would come together, face to face, and make such bargains with each other, as that the whole proceeds of their joint capital and labor would be divided between themselves, instead of being bestowed, in part, as now, as a gratuity, upon an intermediate intruder. The capitalist would not only get all he now gets as interest, and the laborer all he now gets as wages, but they would also divide between themselves that sum which now goes into the pockets of the employer. What portion of this latter sum would go to the laborer, and what to the capitalist, would depend upon the circumstances and bargains in each particular case. The probability is that for the first few [36] years after these principles went into operation, capitalists would ask and obtain a pretty high rate of interest. The competition among laborers, in their bids for capital, would produce this effect. But as the general safety of the system should be tested, and as laborers should gradually make accumulations, which would serve as some security for loans, and as the business of banking should be increased, the rate of interest would gradually decline, until—probably within ten or twenty years—capital would go begging for borrowers, and the current rate of interest would probably not exceed three or four per cent. And all the proceeds of labor and capital, over and above this interest, would go into the pockets of the laborer.

There obviously would be little or no risk in loaning capital to the generality of laborers, if the lender could hold the first lien upon the capital loaned; for industry, guided by ordinary skill and judgment in the application of labor, is almost certain to add more value to the capital employed than is necessary for the comfortable subsistence of the laborer. The cases, where it would fail of doing this, are few, and even in those few cases the deficiency would be very small. The principal risk, then, in loaning to a poor man, would be the risk of his death, and of loss in winding up his affairs. But this risk could be guarded against by the debtor’s keeping his life insured. The cost of keeping his life insured for an amount equal to the capital he hired, would not ordinarily be more than one, or at most two per cent. upon that capital. And he would thus accomplish the double purpose of giving his creditors a guaranty for their loans in case of his death, and of securing something for the support of his family.

The risk of loss to the creditor, from the death of his debtor, is now made altogether greater than it otherwise would be, by those laws that give to a deceased debtor’s family, (at the discretion of a Probate Judge,) the whole, or a part, of the effects in his hands, in preference to applying them to the payment of his debts. Such laws are as injurious towards debtors, as a class, as they are unjust towards [37] creditors. They virtually forbid capitalists to loan capital to a poor man, under penalty of being compelled to contribute the amount of such loans to the support of his family, in case of his decease. Such absurd and dishonest legislation defeats the very object it professes to have in view. Instead of its accomplishing the purpose of compelling creditors to support the families of poor men, it only serves, as a general rule, to deter capitalists from becoming the creditors of poor men at all. Thus the laws not only fail of providing for a poor man’s family after his death, but they contribute largely to make it impossible for him, while living, to borrow capital upon which to labor, and thus to make any accumulations of his own for their support.

There is no justice, or even appearance of justice, in such laws. If A have loaned capital to B, and taken a note for it, he, in equity, holds a lien upon that property for his debt. It is unreasonable to expect him to loan his capital to a poor man on any other condition. And there is no more reason why he should be compelled to support the debtor’s family, by losing his lion, in case of the debtor’s decease, than there is why any other particular individual should be compelled by law to support them by gifts from his own pocket. If, under these circumstances, a debtor die, leaving his family destitute, they must depend, for their support, upon their own labor, and the assistance of relatives and friends, or upon such provision as the public make, by general taxation, for the support of all who have no other means of subsistence. There is no justice in compelling those few individuals, who may have befriended, or loaned capital to the debtor, in his lifetime, to assume the burden of supporting his family after his death, by giving up to them their lien on the capital they have loaned him. If a poor man wish to provide for his family, in case of his death, he should keep his life insured. He will thus provide for his family, and his creditors too.

One object of these laws is to throw upon the creditors of a deceased person a burden, that might otherwise fall upon the public at large. But their effect is to create ten times as much pauperism as they prevent—because they deter capitalists [38] from loaning capital to poor men, and thus prevent the latter from making such accumulations, in their lifetimes, as they otherwise might, for the support of their families after their death.

It will be shown, in a subsequent chapter, that all legislation, of the kind mentioned, which destroys a creditor’s lien on the effects of his debtor, in order to give them to the debtor’s family, is unconstitutional and void.

If the risk of loss to the creditor, by the death of the debtor, were obviated in the manner now suggested, and if the prior creditor held a prior lien upon the property of his debtor, there would be little or no danger in loaning capital to poor men, in amounts sufficient to employ their own hands respectively.

The risk of the debtor’s success in business would be small—as small as the risk of success can be in any business in which capital is hazarded—because the business, in which each debtor would employ his borrowed capital, would be such as both himself and his creditor should have approved—inasmuch as the creditor would not of course loan his capital to a poor man, unless he should have first ascertained the business in which it was to be employed, and satisfied himself that it was a safe one. The business, therefore, in which each debtor would employ his borrowed capital, would be such as commended itself, (in its prospects of profit,) to the judgments of both debtor and creditor. Such business would ordinarily be more safe than that, in the planning of which the judgment of only one person had been consulted.

The risks from fire, theft, sickness of the debtor and his family, and other extraordinary misfortunes, would be no greater than those to which property is always liable, and would be guarded against by the creditor by the rate of interest.

The only remaining risk, to the creditor, is that of the frugality and industry of the debtor.

There are undoubtedly persons, who, if they could borrow money, would be idle and prodigal so long as it lasted, with [39] little regard either to the rights of their creditors, or to their own subsequent interests. But such persons are very few, and their prodigal habits generally become so publicly known that capitalists would be in very little danger of loaning money to them through ignorance of their characters.

But the mass of men, when they have, in their hands, the means of bettering their condition, are zealous to do it; and if they could borrow capital, on which to bestow their labor, and could have all the fruits of their labor except what they should pay as interest, they would almost universally exert themselves, both by industry and frugality, to make such accumulations as would place themselves beyond the reach either of poverty, or of dependence upon loans from others. And where such exertions were made, they would be successful, with but few exceptions; and those few exceptions would generally be the result only of some such unusual misfortune as property and business are always liable to. In few or no cases would any considerable portion of the loan be sunk by mismanagement, or erroneous judgment, on the part of the debtor—for as loans would usually be made for no longer than three or six months each, there would not be opportunity for much waste of capital, unless by mismanagement that was so gross as to be culpable, or by misfortunes of rare and extraordinary character. In all other cases, then, capitalists would either obtain the whole of their loans with interest, or at least the greater part of their loans. The probability is, that in the aggregate of loans, the whole amount of losses would not be one fifth, or even one tenth as great as capitalists suffer under the present system. The system, as a system—at least during the first few years of its operation—would be altogether better for capitalists than the present one—for the losses would be less, and the rates of interest higher. Competition on the part of borrowers would produce this result.

But it is to be understood that this state of things—this competition among borrowers, arising from poverty on the part of so large a portion of the community as are now poor—could continue but a short time. Most of them—particularly [40] those in the full vigor of life—would at once begin to realize more from their labor than would be necessary for their subsistence, and the payment of their interest. The work of accumulation would be at once begun; and they would speedily be in possession of sufficient acquisitions of their own to serve as security against all reasonable risks in their business; and such persons would then be able to borrow money at lower rates of interest than at first. In a very few years they would have made such accumulations as would be sufficient to employ their own hands, independent of loans from others. In a few years more they would themselves have small amounts to loan to others. The tendency of the system would be to individual accumulations by the mass of the people. The number of borrowers would decrease; the rate of interest would decline, until finally it would probably be no more than three or four per cent., and capital would have to go in search of borrowers at that.

The manifest tendency of the system would be to give to each man separately the use of sufficient capital to employ his own hands upon; to give him the use of this capital at the lowest possible rate of interest, that is consistent with free competition among borrowers; and to give him the entire fruits of his labor, except what he pays as interest. What more, consistently with the rights of property, can be done to distribute wealth justly among those who earn it, or to equalize the pecuniary condition of mankind?

The result of the system would be, that the future accumulations of society, instead of being held, as now, in large estates, by a few individuals, while the many were in poverty, would be distributed in small estates among the mass of the people. The large estates already acquired by single individuals, would, in two or three generations, at most, become entirely scattered. Afterwards we should see no such inequalities in the pecuniary conditions of men as now exist. There would probably never be any very large estates accumulated on the one hand, nor would there be any general poverty on the other. Some few incompetent or improvident individuals might always be poor; but there would be [41] no such general poverty as now prevails among those who were honest, industrious, and frugal.

The aggregate accumulations of society would probably be greater than they are now—for then every man being dependent upon his own labor for his subsistence, all would of necessity labor, instead of a part only as now. Men laboring for themselves would also labor with more skill and energy, and practise more economy in the use of capital, than when laboring for others. There would be less capital squandered in luxury and display, and in extravagant and fanciful schemes, than now, because few or none would ever have fortunes large enough to enable them to indulge in ostentation and prodigality. The consequence, so far as these causes alone were concerned, would therefore probably be, that the aggregate accumulations of society would be greater than they now are. But it is of little moment whether they would be greater or less. Distribution is of infinitely more consequence than accumulation. Our present accumulations are quite large enough, if not altogether too large, unless they can be more equally distributed. The luxury, the vices, the power, and the oppressions of the overgrown rich, and of those who are becoming such at the expense of other men’s rights, are probably much greater evils than the simple poverty of the poor would be, if it were the result of natural and necessary causes.

But the power of the one great agent of accumulation—labor-saving machinery—would be greatly increased, under the system proposed, beyond what it is, or ever can be under the present system. And why? Simply because the extreme, neither of poverty, nor of wealth, is favorable to invention. The man, who has much wealth, is either too much engrossed by the care of it, or too much sunk in the luxurious indulgencies it affords, to have either time or inclination left for such mental exertions as are required for mechanical invention. On the other hand, the man, whose extreme poverty leaves him no respite from manual toil, and affords him no accumulations beyond his daily bread, has no opportunity to cultivate any mechanical genius with which [42] nature may have endowed him, or to mature and realize any mechanical conceptions that may visit his mind—because to do so would require leisure, subsistence, and some little capital with which to make experiments. Thus the two extremes of society contribute nothing to the list of mechanical inventions. Neither the serfs nor the nobles of Russia, neither the slaves nor the slaveholders of America, neither the nobility nor the starving portion of the population of England and Ireland, make labor-saving inventions. On the other hand, in New England, where wealth is more equally distributed than perhaps in any other portion of the world, more labor-saving inventions are probably made than by any other people of equal number on the globe. And if the wealth of New England were distributed still more equally among the population, and if men labored more for themselves respectively, and less for others for wages, the number of valuable inventions would undoubtedly be still greater—because, if the wealth were more equally distributed, few or none would be so rich as to have their inventive powers smothered or stupefied by luxury, or overwhelmed by the care of their wealth; and, on the other hand, few or none would be so destitute as to have their powers fettered by poverty. But all, or nearly all, would be precisely in those moderate circumstances, that would at once stimulate their minds to the greatest activity, and also afford them leisure and capital for experiments. The practice of each man’s laboring for himself, instead of laboring for another for wages—which practice would be greatly promoted by a greater equality of wealth—would also contribute to the increase of labor-saving inventions—because when a man is laboring for himself, and is to have all the proceeds of his labor, he applies his mind, with his hands, much more than when he is laboring for another. And this habitual use of men’s minds, along with their hands, in labor, would undoubtedly give birth to multitudes of inventions that would otherwise never be made.

When we consider the almost incalculable amount of labor that is performed by labor-saving machinery, and the incalculable [43] wealth it produces—how many times greater this labor and wealth are than those performed and produced by mere manual toil, we can hardly avoid forming some conception of the importance of labor-saving inventions to the wealth and comfort of man, and of the importance of such a distribution of wealth as will most tend to increase the number of such inventions in future. Without these inventions, we should be little else than savages. It is these inventions that give us our comfortable, neat, and even elegant dwellings, and our comfortable, beautiful, and abundant clothing. They also give us abundant food, both by improving the implements with which we cultivate the soil, and by supplying our other wants (than food) so easily as to leave us abundant time to cultivate the soil. They also give us numerous and easy roads, and easy and elegant carriages. They give us the rail-road car and the steamboat. The labor-saving printing press gives us those abundant means of knowledge, which prevail in civilized over savage life.

Although the surplus accumulations, made by labor-saving machinery, over and above consumption, are now held mostly by a few hands, yet it is not the fault of the inventions themselves that it is so; but of the causes that have heretofore been pointed out as obstructing the general distribution of wealth. So far as actual consumption is concerned, the benefits of labor-saving inventions are distributed as equally among rich and poor, as are the benefits of manual labor. It is to labor-saving machinery that the poor, no less than the rich, are indebted for their present comfortable dwellings, abundant clothing, abundant food, good roads, good carriages, and such means of knowledge as the printing press affords them. It is to labor-saving inventions that we are all of us mainly indebted that we are not now savages, living in wigwams, clothed with the skins of beasts, and comparatively destitute of knowledge. All, then, are interested in the increase of these inventions, and in such an equalization of wealth, as, (in the manner already suggested,) will most promote their increase.

One such invention as Fulton’s adds more to the wealth [44] of the world than the mere manual labor of a whole generation. Yet how many Fultons, in the past ages of the world, have had their genius smothered by luxury, or starved by want; and how has poverty been entailed upon the world in consequence. Who can conceive what would have been the present wealth of the world, but for the want of opportunity, on the part of inventors, to enrich it by the productions of their genius? But war, and monopoly, (which is but a species of war,) have ever been employed in killing and starving mankind; when, with peace and equality of privileges, the labors of inventors would have made the earth one universal garden, and given, in profusion, to what then would have been its countless population, knowledge, comfort, and plenty.

The mind of man is fertile of invention almost beyond conception. All it needs is stimulus and opportunity to develope itself. And since every invention, made by a single individual, enures to the benefit of mankind at large, mankind at large are interested in placing each individual in such a pecuniary condition as that his mind will receive the proper stimulus, and enjoy the proper opportunity. And that condition is one neither of poverty, nor riches; but of moderate competency—such as will neither enervate him by luxury, nor disable him by destitution; but which will at once give him an opportunity to labor, (both mentally and physically,) and stimulate him by offering him all the fruits of his labor.

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CHAPTER IV.: SOCIAL, MORAL, INTELLECTUAL, AND POLITICAL RESULTS FROM THE PRECEDING PROPOSITIONS.

Social Results. To appreciate, in some measure, the important social influences of the preceding propositions, it is only necessary to consider that that portion of human virtue, which consists in one’s doing good to others than himself, depends almost entirely upon sympathy—upon one’s susceptibility of being affected by the feelings of others; and that this sympathy, or susceptibility, is mostly, if not wholly, the result of his having had, in some measure, a similar experience with others, or of his having had social relations with them. Thus those who have been sick, sympathize with the sick; the sorrowful sympathize with the sorrowful; the merry with the merry; the rich sympathize with the rich; the poor with the poor; the learned with the learned; the vicious with the vicious; kings with kings; slaves with slaves; and all men more or less with their immediate personal acquaintances. And it is from the sympathy, thus excited by personal intercourse, or by a similarity of experience, that much, perhaps most of the kindness, shown by one human being towards another, results. On the other hand, much of the indifference, or want of kindness, manifested by one man towards another, is the natural result of his having had little or no similar experience, or little or no personal acquaintance with him. Thus kings sympathize little with the people, and the people little with kings; slaves sympathize little with masters, and masters little with slaves; the rich sympathize little with the poor, and the poor little with the rich; and few sympathize much with strangers.*

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So again, most, or all, of the hatred and injustice, felt and practised by one man towards another, results from the fact, that the points of collision in men’s characters and interests are not rounded, and smoothed, and softened by the kindly influences of sympathy and acquaintance. Much of the hatred existing among mankind is the hatred of class against class—of classes against other classes, with whom they have little personal acquaintance, or little common experience. The rich do not hate the rich, as a class; nor the poor, the poor. But the rich hate and despise the poor, and the poor hate and envy the rich; and it is solely, or principally, because these two classes have not sufficient personal acquaintance, and sufficient similarity of experience with each other, to awaken their sympathies, and thus soften or avert the collision of their feelings, interests, and rights. Thus the rich will often defraud, oppress, and insult the poor, and the poor defraud and commit violence upon the rich, with less compunction than the same individuals would have defrauded, injured, or insulted one of their own number. And every man, who will defraud others at all, will more willingly defraud a stranger than an acquaintance.

Such being the laws of men’s minds, and such the conditions on which so large a portion of men’s virtue towards each other depends, it is obviously a matter of the highest social importance, that men—so far as it can be effected without infringing their individual liberties and rights—should occupy such situations and circumstances relatively to each other, as will promote the widest personal acquaintance, and the nearest similarity of experience among them all. To the accomplishment of this end, perhaps nothing is more conducive or indispensable, than an approximation to equality in their pecuniary conditions. Extremes of difference, in their pecuniary circumstances, divide society into castes; set up barriers to personal acquaintance; prevent or suppress sympathy; give to different individuals a widely different experience, and thus become the fertile source of alienation, contempt, envy, hatred, and wrong. But give to each man all the fruits of his own labor, and a comparative [47] equality with others in his pecuniary condition, and caste is broken down; education is given more equally to all; and the object is promoted of placing each on a social level with all; of introducing each to the acquaintance of all; and of giving to each the greatest amount of that experience, which, being common to all, enables him to sympathize with all, and insures to himself the sympathy of all. And thus the social virtues of mankind would be greatly increased.

Moral Results. Important moral results, other than those already mentioned as social, would be accomplished by carrying into operation the principles that have been set forth in the preceding propositions. To be convinced of this, we have only to look at all the criminal and vicious individuals in the community, and see how many of their crimes and vices can be traced either to their superabundant wealth, their extreme poverty, their desire for wealth, or their fear of poverty.

1. Those grosser offences against the rights of property, that are punishable by society as crimes, such as theft, robbery, forgery, and swindling, result, not from the love of crime, but almost without exception from one or another of these three sources, viz., the sufferings of actual poverty; the fear of coming poverty; or a desire for those luxurious displays and indulgences, which the perpetrators see to be enjoyed by the possessors of wealth. And all these motives to crime are aggravated, and individuals are often goaded to recklessness and audacity by that hatred of society, and that sense of outrage and wrong, which result from the observation of those great inequalities of condition, those extremes of poverty and wealth, which are brought about by that monopolizing and iniquitous legislation, which, while it deprives the many of their natural right to obtain capital on which to labor, and of their natural right to all the fruits of their labor, arbitrarily gives to the few the command of all the loanable capital, and consequently the control, and a large part of the fruits of other men’s labor.

But if the principles of the preceding chapters were administered as law, the crimes resulting from these sources would [48] mostly disappear. The causes now impelling to the commission of them would rarely exist. Nearly every man would be able to control his own labor, and secure to himself the whole of its fruits, (except what he should pay as interest on his capital;) and these would save him from that extreme poverty which instigates to crime. Monopolies also being broken down, there would be little or no great wealth, in the hands of single individuals, to excite his envy, or his desire for luxury and display. He would be able, without crime, to maintain a position near enough to the general level of society to save him from the temptation to crime.

2. Those innumerable frauds that pervade every department of traffic, but are not of that tangible character that can be proved and punished by society, result, in an important portion of the cases, from a fear of poverty, and, in another important portion, from a desire of that superior wealth, which the few acquire by means of monopolizing legislation, and which constitutes one of the principal distinctions of society. But if the propositions, advocated in the preceding chapters, were carried into effect, the motives to these frauds would be, in a great measure, extinguished; because, 1, there would be no such liability to extreme poverty as now; and 2, there being then few or no great fortunes in society, but, on the contrary, a somewhat general equality in wealth, large fortunes would not, as now, constitute the foundation for castes and distinctions; consequently they would not be objects of such general ambition as now; and, of course, would not prompt men, so often as now, to the commission of frauds for the sake of obtaining them. Neither would the possession of them, when acquired by fraud, be such a salve to a man’s character, as now. Wealth is now such a mark of distinction and honor, that society palliate, if they do not justify, almost any measure, short of open crime, to secure it. But under a system, where every man could easily obtain capital, on which to labor, and could have all the fruits of his labor; and where there was such a general equality of wealth as would necessarily result from those two causes, there would be no caste or distinction [49] founded on wealth; superior wealth would not be at all necessary to give one reputation; all men, as a general rule, could honestly obtain all the wealth that would be necessary to their respectability; and they would have little temptation, as now, to forfeit their character for integrity, for the sake of acquiring a degree of wealth that would give them no marked importance in society.

It is manifest also that the present precariousness of men’s pecuniary condition is a great provocative to injustice and fraud. It is not natural to mankind to desire to defraud or injure each other. But the wheel of fortune, in the present state of things, is of such enormous diameter; those on its top are on so showy a height; and those underneath it are in such a pit of debt, oppression, and despair; and its revolutions are so rapid, unsteady, and convulsive, that it is no subject of wonder that those on its sides should feel compelled, by the necessity of self-preservation, to jostle and cheat each other out of their footing, in order to seize a secure one for themselves. But under the system proposed, fortune could hardly be represented by a wheel; for it would present no such height, no such depth, no such irregularity of motion, as now. It should rather be represented by an extended surface, varied somewhat by inequalities, but still exhibiting a general level, affording a safe position for all, and creating no necessity, for either force or fraud, on the part of any one, to enable him to secure his standing.

3. Intemperance is another of the vices attendant upon superabundant wealth, and extreme poverty. The rich often become luxurious, gluttonous, and drunken, apparently because life hangs heavy on their hands. Being relieved from the necessity to labor, they feel little motive to that healthful industry, which is the companion and guardian of temperance; and their minds having been starved while they were engaged in hoarding their wealth, they are now incapable of intellectual pursuits, and have little or no resource against ennui but in animal indulgences. On the other hand, the intemperance of the poor is the natural consequence of the extremities of their condition. The excitement, [50] or the stupor of intoxication, brings at least a temporary relief from the anxieties that harass and unsettle their minds, and drive them to desperation.

4. Gambling also naturally results from too much wealth, and too severe poverty. The rich gamble for excitement, and because they can afford, or think they can afford the risks. The poor gamble in the hope of gain—tempted by the prospect of fleecing the rich, or driven to it by the hopelessness of their own condition.

5. Lewdness—the destroying vice of society—is enormously increased, if not mainly supported, by the precariousness and the inequality of men’s pecuniary condition. The rich become lustful and libidinous from idleness and luxury, and their wealth enables them to purchase the gratification of their desires. The poor become reckless from want, or from envy of the rich; and sell their virtue for bread, or for the means of display. Purity dwells with moderate competence, with the simple board, with the modest garb, and with cheerful industry.

The ruin of the young, particularly of young females, is mostly accomplished by means of their absence from home. They are generally safe in their father’s house. But the same want of capital that compels a poor man to sell his own labor, compels him also to sell the labor of his children; and to send them, in their youth, beyond his own roof or farm, to occupy some menial situation in a rich man’s service, where toil, oppression, insult, neglect, and loneliness are their lot; where few or no kind counsels meet their cars; where no friendly eye watches over their ways, and no guardian hand protects them from the dangers that crowd around them. What armies of the youth of both sexes are annually driven, by poverty, from the parental roof, and parental care, to seek menial employment in manufacturing and commercial towns, and to fall sacrifices to their own inexperience, and the enticements of the libertines that swarm in such places.

If every man could obtain the capital necessary to employ his own hands and the hands of his family, children would [51] be reared at home much more generally than now. It would rarely be necessary for daughters to go abroad for employment; and never to occupy servile and degraded situations as now. And if daughters only were to be reared uniformly at home, society would be pure compared with what it is now. It would often be necessary for sons to go from home to learn some different calling from that followed by their fathers; but they would not be driven from home by poverty. And not being driven from home by poverty, they would not be driven into servile and degraded situations, where their loneliness and misery would urge them into vice. As there would then be no such extremes of poverty and wealth, as now, a son leaving his father’s house for employment, would not leave an abode of want to become a menial in the mansion of the rich; he would merely leave one comfortable and virtuous home for another of like character, in a family situated in pecuniary respects much like his own, and in which he would be an equal and respected, perhaps cherished member, instead of a menial and an outcast. In such a situation his morals would be much more safe than when driven by poverty into a servile and lonely condition, where he would meet no sympathy from the family with which he lived, and find no virtuous companionships to keep him from vice.

That general equality of condition, and that pecuniary independence, which should enable parents always to rear their children at home, or which should merely save them from the necessity of placing them abroad, except in situations and families where the want of parental kindness and watchfulness would be, in some good measure, supplied to them, would save almost countless multitudes of the youth of both sexes from the ruin that now overtakes the neglected and outcast children of poverty.

But the system proposed would promote chastity in still another, and perhaps even more effectual way, to wit, by making marriage nearly universal, and by inducing it in early life. Celibacy is the great cause of licentiousness. If all men were to be married in early life, there would be very [52] little libertinism—for although libertinism now invades married life, it does not originate there. Its principal source is in the unnatural and solitary state of large numbers of both sexes. The sexes are so nearly equal in number that if all of either sex were married, there would not be enough of the other left unmarried to give rise to any general profligacy.

The desire of matrimony is so strong and universal, and manifests itself so early in life, that nearly all would be married at an early age, if their pecuniary circumstances would admit of it. The causes, of a pecuniary nature, that prevent universal and early marriages, are these:

1. Young men cannot establish themselves in business of their own, immediately on attaining their majority, because they cannot obtain capital on which to employ their labor. Until they can obtain capital, and thus establish themselves, they do not wish to marry, because their station in society will not be agreeable, or because their income, while laboring for others, will not give them a sufficient support. But if freedom in banking, and freedom in the rate of interest, and the prior right of the prior creditor to the property of the debtor, were recognized as law, there would be no difficulty in a young man’s borrowing capital enough to employ his own hands upon; and his being married would improve, instead of injuring his chance of obtaining it; because his being married would afford his creditor an additional guaranty for his industry, economy, and morality. Other things being equal, a married man can always obtain both credit and employment, in preference to an unmarried one.

2. Men’s fortunes, in the present state of things, are so precarious—there is so much danger that a man, who is in comfortable circumstances to-day, may, by some of the hazards of trade, lose his property to-morrow; and not only lose it, but be left with a debt upon him, which will be a charge upon his future earnings, and an obstacle in the way of his borrowing the capital necessary to make his industry lucrative—there are so many dangers of this kind, that a [53] prudent man dare not marry until he has accumulated, as he thinks, property enough to protect him, to some reasonable extent, against the chances of misfortune. He therefore lives unmarried for years solely to make this accumulation. But if the obligation of debts attached only to the property that a man should have when his debt should become due, and not to his earnings afterwards, so that he could always acquit himself of his debts by paying to the extent of his means, this danger of being overwhelmed in debt and consequent poverty, would be removed. He would know that he could always be at least a free man, if not a rich one; and that he could always be sure at least of his earnings for the support of his family; and that if he could get capital, (as he could under the system proposed,) sufficient to employ his own hands upon, he could always support them in a condition of respectability.

3. A third motive, with many persons, for postponing matrimony, is the desire of first accumulating sufficient wealth to enable them to maintain a domestic establishment of such elegance and cost as will bring them within the caste or circle distinguished by wealth and display. But if the system proposed were carried into effect, it would produce such a comparative equality in men’s conditions, that there would be no rank or caste founded on such distinctions; and thus this motive to the postponement of marriage would be removed.

Thus the various motives, of a pecuniary nature, which now operate to dissuade or deter men from early matrimony, would be, in a great measure, removed by the system proposed; and the morals of society would be very greatly purified by the change.

Under the present system, we see society agitated by the efforts of individuals, associations, and of society as large, to check the several crimes, frauds, and vices, that have now been enumerated, and that seem sometimes to threaten all human virtue. Legislatures, courts, prisons, churches, schools, and moral associations of all sorts, are sustained at an immense cost of time, labor, talent, and [54] money. Yet they only mitigate, they do not cure the disease. And like all other efforts to cure diseases, without removing the cause, they must always be inadequate to the end in view. The causes of vico, fraud, and crime, to wit, excessive wealth and excessive poverty, must be removed, before society can be greatly changed. Just in proportion, or very nearly in proportion, as these causes are removed, will the ignorance, the vices, the frauds, and the crimes of all sorts naturally resulting from them, disappear.

Intellectual Results. The intellectual advancement of society would be immensely promoted by the adoption of the system proposed. To be convinced of this, we have only to consider the following facts:

1. The mental independence of each individual would be greatly promoted by his pecuniary independence. Freedom of thought, and the free utterance of thought, are, to a great degree, suppressed, on the part of a large portion of the poor in all countries, by their dependence upon the will and favor of others, for that employment by which they must obtain their daily bread. They dare not investigate, or if they investigate, dare not freely avow and advocate those moral, social, religious, political, and economical truths, which alone can rescue them from their degradation, lest they should thereby sacrifice their bread by stirring the jealousy of those on whom they are dependent, and who derive their power, wealth, and consequence from the ignorance and servitude of the poor.

2. The mass of the poor in all countries have but little leisure, or means, or opportunity for intellectual cultivation. Wherever capital is in the hands of the few, the competition for employment among laborers becomes so great as to reduce the price of labor to a sum that will give the laborer but a mean and wretched subsistence in return for the severest toil of which his body is capable. Under these circumstances, intellectual culture, to any considerable extent, becomes an impossibility. Even the desire of it is in a great measure crushed, and but feebly animates the breast of the mass of them. Their thoughts are confined, by the [55] pressure of their physical necessities, almost wholly to the questions of what they shall eat, and how they shall live.

When it is considered how large a portion of the human race have in all ages been thus condemned, by extreme poverty, to an almost brutish and merely animal existence; that their minds were, nevertheless, naturally susceptible of the same cultivation and development as those other minds that have been cultivated and developed; that they needed, for their growth, but such an opportunity as all might have enjoyed, if each man could have controlled his own labor, and possessed its fruits; that their intellects, thus enlightened, would have contributed their share, equally with others, to the general progress of knowledge; that among them must have been a due proportion of superior minds, capable of becoming discoverers in science, inventors in the arts, and teachers in morals, religion, and law; when we consider these facts, we cannot entirely shut out the idea, although we can form no adequate idea, of what the world might now have been, if so large a portion of its intellectual light had not been thus needlessly and wickedly extinguished.

3. The system proposed would speedily result in the universal education of children. The universal education of children can, in the nature of things, never be accomplished except through the universal ability of parents to provide the means of educating their own children respectively. In some small portions of the most civilized parts of the world, educational systems have been established, which give knowledge to the children of the poor, at the public expense. Yet under these systems children are but partially and poorly educated, in comparison with what they would be, if all parents were able to meet the necessary expenses of educating their own children. These systems too, defective and inadequate as they are, prevail in but small districts of the world; and if extended at all, can be extended but slowly. Moreover they are but the unnatural and forced productions of an unnatural state of society, consequent on the unnatural distribution of wealth. They merely constitute one of the [56] remedies, by which government attempts to mitigate the evils of its own injustice, to wit, the evils of that monopolizing legislation, by which they keep capital in the hands of the few; deprive the many of their right to labor independently for themselves; rob them of the fruits of their labor; and thus render it impossible for them to educate their children. Such being the character of public systems of education, their perpetuity cannot be relied on; nor can it even be advocated, except on the supposition that a large, or at least somewhat considerable, portion of the people are always to remain too poor to educate their own offspring. And if they cannot be relied on as permanent institutions where they already exist, still less can they be looked to as the means by which the world at large is over to be universally educated. The universal education of children can, in the nature of things, never come from any other source than the universal ability of parents to provide for their education. And this universal ability of parents can come from no other sources than their liberty to labor; their liberty to borrow capital on which to labor; and their liberty thus to secure to themselves all the legitimate fruits of their labor.

4. The intellect of society would be much better directed, under the system proposed, than under any that has ever existed. It would be directed more to the service and improvement of man, as man; and less to the aggrandizement of one portion of mankind, at the expense of the other portions, than it is, or ever has been under systems where wealth and power are distributed by arbitrary, instead of natural and equal laws. This system would present no such great prizes, either of wealth or power, as are presented by existing systems, to tempt the avarice and ambition of those stronger minds, that have great capacities for both good and evil, and that generally follow good or evil according to the respective influences of each upon their own elevation. The system proposed would bring such men down very nearly to the same social, political, and pecuniary level with the mass of men; and place entirely beyond their reach and their hopes those great fortunes, and that great [57] political power, which can now be obtained, and which can only be obtained, by means of those arbitrary political arrangements that produce a corresponding poverty and subjection on the part of the masses.

So long as society, or its institutions, offer a few great prizes, either of wealth or power, for the acquisition of any one, so long many of the more powerful minds will be engrossed in the pursuit of them. Unable to obtain them, (inasmuch as they are in their nature unattainable,) consistently with the equal rights of all, they will propose to secure them by sacrificing the rights of a part, and sharing the spoils with their adherents, by means of partial and monopolizing legislation. Thus their contests with each other will be made to involve the interests, welfare, and rights of every other man—for every other man is to be made either a victim or a beneficiary of some one or more of the various schemes proposed by the different competitors. Thus nearly every individual mind in the community becomes occupied, necessarily occupied, as a party interested, on one side or the other, in these strifes, where power and plunder are the objects of the assailants, and defence and retaliation the objects of the assailed. Such contests not only necessarily suspend, to a great degree, all those labors and studies that really advance man as an intellectual and moral being, or promote the impartial welfare of the race, but they actually divert a vast mass of mind into pursuits—of monopoly and war—that have for their objects, injury and destruction to mankind at large. Much of the intellect of society, under such circumstances, is not merely wasted, as regards purposes really beneficial to all mankind; it is worse than wasted; it is exerted for purposes of positive detriment and injury.

Such selfish, absorbing, and destructive agitations could evidently find no place under institutions, which, instead of offering dazzling prizes to the few, should, on the contrary, secure to each individual, without discrimination, the full enjoyment of his right to labor, to hire capital on which to labor, and to hold all the legitimate fruits of his labor. The [58] mass of men, under such circumstances, could not be withdrawn from the quiet enjoyment of their just and natural rights, and the pursuit of their highest interests, to enlist, as they now do, as mercenaries under the lead of ambitious, rapacious, and unprincipled men, or to lend themselves as tools in their iniquitous enterprises of avarice and aggrandizement. Ambition, therefore, for want of troops, if for no other reason, would be obliged to abandon its war upon the equal rights of men; and to apply itself to achievements that promise good, instead of evil, to man in the aggregate. Thus preëminent minds, that are now employed and exhausted in the projection and execution of great plans of rapacity and power, in fierce struggles for the elevation of the few, and the corresponding prostration of the many, would be driven, by a sort of moral necessity, to seek more peaceful employments. And these other employments would generally be of such philosophical, scientific, or literary kinds, as active minds delight in, and such as conduce to the physical, intellectual, or moral advancement of the human family at large. And mankind at large, being thus relieved from many of those turbulent collisions, which now inflame their passions, and pervert their judgments, and having more leisure and quiet for intellectual pursuits, would rapidly acquire a more humane and intellectual character.

Political Results. If the several propositions stated in chapter second, were recognized as law, and if their effects upon the pecuniary conditions of men should be such as it is here claimed they would be, the only true and rightful ends of all political institutions, so far as they relate to men’s pecuniary conditions, would seem to be very nearly accomplished. For what rightful objects have political institutions, in reference to pecuniary matters, beyond that of securing to each individual the free exercise of his natural right to acquire all he can by honest and moral means, and of his right to the control and disposition of all his honest acquisitions? Each man has the natural right to acquire all he honestly can, and to enjoy and dispose of all that he honestly acquires; and the protection of these rights is all [59] that any one has a right to ask of government in relation to them. It is all that he can have, consistently with the equal rights of others. If government give any individual more than this, it can do it only by taking it from others. It, therefore, in doing so, only robs one of a portion of his natural, just, and equal rights, in order to give to another more than his natural, just, and equal rights. To do this, is of the very essence of tyranny. And whether it be done by majorities, or minorities, by the sword, the statute, or the judicial decision, it is equally and purely usurpation, despotism, and oppression.

Labor is one of the means, which every man has a natural right to employ for the acquisition of property. But in order that a man may enjoy his natural right to labor, and to acquire all the property that he honestly can by it, it is indispensable that he enjoy fully and freely his natural right to make contracts; for it is only by contract that he can procure capital on which to bestow his labor. And in order that he may obtain capital on the best possible terms, it is indispensable that his natural right of contract be entirely unrestricted by any arbitrary legislation; also that all the contracts he makes be held obligatory fully to the extent, and only to the extent, to which, according to natural law, they can be binding.

But nearly all the positive legislation, that has ever been had in this country, either on the part of the general or state governments, touching men’s right to labor, or their right to the fruits of their labor, or their rights of contract—whether such legislation has had reference directly to banks and banking, to the rates of interest, to insolvency and bankruptcy, to the distribution of the debtor’s effects among his creditors, or to the obligation or enforcement of contracts—nearly all has been merely an attempt to substitute arbitrary for natural laws; to abolish men’s natural rights of labor, property, and contract, and in their place establish monopolies and privileges; to create extremes in both wealth and poverty; to obliterate the eternal laws of justice and right, and set up the naked will of avarice and power; in short, to [60] rob one portion of mankind of their labor, or the fruits of their labor, and give the plunder to the other portion.

Some of this legislation has probably been the result of an ignorance of natural law; but very much of it has undoubtedly been the result of deliberate design.

The system proposed would take men’s pecuniary interests, in a great measure, out of the hands of the legislative branch of the government, and leave them to rest upon immutable principles of natural law, to be ascertained by the judiciary. If this were accomplished, the “natural, inherent, and inalienable right of individuals to acquire, possess, and dispose of property,” would then have at least a semblance of reality in actual life; and would cease to be treated, as it now is, as a mere privilege to be enlarged, contracted, or utterly withholden, as those who administer the government may arbitrarily dictate. But so long as this right is admitted to be a subject of arbitrary legislation, so long it will be perpetually infringed, invaded, and denied, by innumerable legislative devices of the cunning and the strong, which a large portion of society, the ignorant, the weak, and the poor, can neither ferret out, nor resist.

If the judiciary should assert and maintain, (as they are constitutionally bound to do,) the natural right of all men to acquire, possess, and dispose of property, in accordance with the principles of natural law, they would do such a deed for freedom, humanity, and right, as has never yet been done since government was instituted. And why do they not do it? Many, if not all our state constitutions declare, either in form or substance, that “the right to acquire, possess, and dispose of property, is a natural, inherent, and inalienable right.” The legal authority of this constitutional declaration, is to prohibit and annul all legislative enactments whatsoever, that would infringe the right of any individual to acquire and dispose of property on the principles of natural law. This principle may not, perhaps, be distinctly asserted in all our state constitutions; but it is, nevertheless, everywhere law; law, by an infinitely higher authority than constitutions and statutes. The right, (whether practically [61] acknowledged, or not,) is an “inherent, essential, inalienable right” of human nature: it is the natural and necessary right of providing for one’s own subsistence; and can no more be surrendered to government, (which is but an association of individuals,) than to a single individual. It is, therefore, in the nature of things, impossible that any government can have the right, (however it may have the power,) to infringe it. Why, then, do not the judiciary sustain this principle, and annul all the arbitrary legislation against banking? against particular rates of interest? and all the other legislation, by which individuals are deprived of their natural right to make contracts, naturally lawful, for the acquisition and disposal of property? and by which a few monopolists are enabled to control so large a portion of the labor and capital of the community? Is the reason to be found in their ignorance? their cowardice? their bigotry? or in their corrupt subserviency to the other departments of the government, from whom they receive their appointments and salaries, and to whom alone they are made amenable for their conduct?

Were the judiciary to assert this principle, (that is, the natural right of men to make all contracts, that are in their nature lawful, for the acquisition and disposal of property,) and carry it out in all its ramifications, as they are morally and legally bound to do, government would no longer be, what it now, to a great extent, everywhere is, an organized system of plunder, usurpation, and tyranny, by which the intelligent, the rapacious, and the strong continually prey upon the ignorant, the weak, and the poor.*

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Should the judiciary ever take this ground, government will then be reduced to a very simple and harmless affair, in comparison with what it now is. All those innumerable, arbitrary, conflicting, and over changing legislative enactments, which annually come upon us like visitations from some incarnated spirit of anarchy and injustice, to elevate, depress, and change the relative values of different kinds of property, (thereby putting into one set of pockets fortunes taken from others,) and to enlarge, diminish, and deny men’s natural and equal rights of acquiring their subsistence, will then give place to judicial decisions founded upon the unchanging principles of natural law, and affecting uniformly the rights of all; and to a few simple legislative provisions for carrying these decisions into effect.

No reasonable objection can be made to this doctrine on the ground that natural law, in its application to all possible cases, is not already fully and absolutely known. If it be not, in any particular case, known, that is only a reason [63] why it should be sought after, and ascertained, (by the proper tribunal, the judiciary;) and not why it should be arbitrarily set at defiance where it is plain and palpable. The truths of mathematics are not fully known in their application to all possible cases; yet is that any reason why they should not be adhered to so far as they are known, or can be ascertained? Is it any reason why the ruling power of a state should innovate upon mathematical principles by legislation, and enact that three and four shall be counted as fifteen, and eight and six as forty; and that the amount of men’s dues to each other shall be determined by such processes as these? As much reason would there be in such a procedure, as there is in legislatures attempting to prescribe men’s rights of property, or their rights to the acquisition of property, in defiance of the principles of natural law. Natural law is the science of men’s rights, as mathematics is the science of numbers and quantities. It is impossible, in the nature of things, that men can have any rights, (either of person or property,) in violation of natural law—for natural law is justice itself. And justice is a science, to be learned; not an arbitrary rule, to be made. The nature of justice can no more be altered by legislation, than the nature of numbers can be altered by the same means.

Natural law, in regard to all human rights, is capable of being ascertained with nearly absolute certainty. There are no Gordian knots in it, that must be cut by legislation. It has been said with very great reason, and probably with entire truth, that nothing approaches so near the certainty of mathematics, as the reasonings of the law. Sir William Jones, a man preëminently learned in the laws of different nations, ancient and modern, says, “It is pleasing to remark the similarity, or rather identity, of those conclusions, which pure unbiased reason, in all ages and nations, seldom fails to draw, in such juridical inquiries as are not fettered and manacled by positive institutions.”*

The science of justice, then, is, in its nature, certain; and [64] its truths are susceptible of being ascertained, to a very great extent, as absolutely as any other truths of an abstract nature. We have also, in this country, greater facilities for progress in the science of the law, (if law were suffered to rest on natural principles,) than in any other country. Individual rights, the only basis of natural law, are already acknowledged to a greater extent here than elsewhere. We have also a large number of separate states, each having an independent judicature. The decisions of these separate courts are continually coming under examination in all the others. If an error is committed by one of them, through want of investigation, or any other cause, the same question, when it arises in the others, is independently and more thoroughly scrutinized, and thus the truth is nearly certain to be ascertained. The science of the law, therefore, but for that legislation which innovates upon it, and sets all natural principles at defiance, would be carried further towards perfection in this country than it ever has been elsewhere.

If, however, the arbitrary commands of legislative bodies are better standards of right, than the everlasting principles of justice and natural law, why are not the former substituted for the latter in all cases whatsoever? Why do not legislatures make thorough work in demolishing, obliterating, and erasing everything like natural right? We have still, nearly whole branches of law, on which legislation has not yet dared to lay its Vandal hand. Why are they spared? Is it because the utter extinction of justice would defeat the purposes of rapacity itself, by not allowing men to produce enough to be worth the robbing? Or is it because knowledge, and consequent power, have at length become so far diffused among the mass of mankind, that no very considerable portion of them can now be reduced by the others to unqualified servitude?

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CHAPTER V.: THE LEGAL NATURE OF DEBT.

The nature of debt, and the extent of its moral and legal obligation, have been very much misunderstood; and from this misunderstanding, and the erroneous judicial decisions consequent thereon, have resulted perpetual ruin to a large proportion of debtors: utter confusion, and the violation of all natural law in regard to the rights of creditors, as against each other, in the property of their debtors; and the destruction, in a great measure, of all credit, that is sound in itself, and safe and beneficial to both debtor and creditor.

This chapter and the succeeding one will attempt to prove that a debt—such as is evidenced by a promissory note, for instance—has no legal obligation, and generally no moral one, beyond the means of the debtor to pay at the time the debt becomes due.

Some illustrations will hereafter be given of cases, where a moral obligation to pay may remain, after the legal one has expired. The effect also of fraud, fault, neglect, and the violation of good faith, on the part of the debtor, will be explained in a subsequent part of the chapter. At present, the argument will have reference solely to the legal obligation of debt, and to cases where there has been no fraud, fault, neglect, or violation of good faith on the part of the debtor. That the debt, in such cases, is legally binding, at most, but to the extent of the debtor’s means of payment at the time the debt becomes due, is proved by the following arguments.

1. The law requires no impossibilities of any man. If, therefore, a man contract to perform what proves to be an impossibility, the contract is valid only for so much as is possible.

Neither is a man bound, before he enters into a contract, [66] to know, (because it is impossible that he should know,) the utmost extent of his ability; nor to foresec, (because it is impossible that he can foresee,) all the contingencies and accidents that may occur to defeat his purposes. He is, therefore, bound only to the faithful exercise of all his powers, and the faithful application of all his means. As this is the most that the debtor can contract for, the creditor is bound to know it, and, of course, must always be presumed to have understood the contract, subject to that limitation. A creditor is, therefore, as much bound to judge for himself, whether the means and ability of the debtor will be sufficient to enable him to fulfil his contract to the letter, as is the debtor himself, unless the debtor do something intentionally to mislead him in his judgment of them.

2. A contract to perform a manifest impossibility, is an immoral and absurd contract; and a contract, that is either immoral or absurd, is void from the beginning. It has no legal obligation whatever. And if a party pay value, as a consideration for such a contract, he must lose it, unless the receiver voluntarily restore it. The law will neither restore it to him, nor compel the fulfilment of even the possible portion of the contract.

Every contract would be an immoral and absurd one, and therefore void from the beginning, if it were a contract to perform a particular act, or to pay a particular amount of money, at a particular time, at all events, and without any implied reservation for contingencies, accidents, and misjudgments, that may make it impossible to fulfil the letter of the contract. The only way, therefore, to make any contract a moral, reasonable, and, therefore, valid one, is to understand it subject to the limitation of all contingencies that may make its fulfilment impossible; and as binding only to the extent of what shall be possible.

If, then, the contract be entered into, with these limitations implied, it imposes no obligation upon the debtor to make good, out of means that he may acquire after the contract shall have expired, any short comings, that were occasioned, not by his fault, neglect, or bad faith, but by causes, which [67] fixed a limitation upon his original liability, and of whose effects the creditor of course took the risk.*

3. Time is a material element of the contract. All the legal obligations of the contract, of necessity, come to maturity at the time agreed upon for its fulfilment; else the whole of the debt would not be due at that time. At the maturity of its legal obligations, it is plain that the contract can attach only to the property then in the hands of the debtor—for there is nothing else for it to attach to. And it is plain that it can attach to nothing acquired by the debtor subsequently—because to allow it to do so, would be to extend the obligations of the contract beyond the time to which they were originally limited. It would be equivalent to creating a new contract, for a new period of time. Or it would be equivalent to saying that the obligations of the contract had not come to maturity at the time agreed upon for its fulfilment.

But further. Although the preceding considerations are sufficient to prove that a debt has no legal obligation beyond the means of the debtor at the time the debt becomes due, they, nevertheless, do not convey a full and clear idea of the true nature and obligation of the contract of debt. And this leads to another proposition, as follows:

4. A contract of debt is a mere contract of bailment, differing, in no essential element of the contract, from other contracts of bailment.†

That it is so, is easily shown. Thus a promise to pay [68] money, for “value,” that has been “received,” is evidently a mere promise to deliver money, which has been sold and paid for; because the “value,” that has been “received” by the debtor, is nothing else than the equivalent, or price, paid by the creditor, for the money which the debtor promises to deliver, or pay to him.

The right of property, in this money, that is to be delivered to the creditor, (or in a quantum of value, in the hands of the debtor, sufficient to purchase the money,) obviously passes to its purchaser, the creditor, at the time he thus buys, and pays for it; and not, as is generally supposed, at the time it is finally delivered, or paid to him; for it is absurd to say that when a man has bought and paid for a thing, he does not, from that time, own it, merely because it is not delivered to him at that time. A promise to deliver, or pay money, especially when coupled with an acknowledgment that the equivalent, or price of the money promised, has been “received,” is as good evidence that the right of property in the money, (or in an amount of value sufficient to purchase the money,) has already passed to the purchaser, as is a delivery itself.

The obligation of debt, then, on the part of the seller of the money, arises simply from the fact that the money, (or an amount of value sufficient to purchase the money,) which he has thus sold, and received his pay for, and the right of property in which has already passed to the purchaser, is, by agreement, to remain, for a time, in his, (the seller’s,) hands, for his use. And the sum of his obligations, as a debtor, is, not, at all events, to preserve and deliver, but to use due diligence to preserve, and, (at the time agreed upon,) to deliver to the purchaser, the money, or value, which he has thus sold to him.

A debtor, then, is a mere seller of value, (generally measured by money,) which he is to deliver to the purchaser at a time subsequent to the sale. And a creditor is a mere purchaser of value, that is to be delivered to him, (generally in the shape of money,) at a time subsequent to his purchase of it.

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But the material point to be regarded, is, that the right of property, in the money, (or in the amount of value to be measured by money,) which is thus bought and sold, passes to its purchaser, by the sale, and, of necessity, at the time of the sale, and not at the time of final delivery, as is generally supposed.

The common error on this point, viz., that the right of property, in the value thus purchased and paid for by the creditor, does not pass to him until the final delivery of it to him in the shape of money, (or in whatever other shape it may be agreed to be delivered,) is the source of all our erroneous notions of the nature and obligations of debt; for if the right of property, in the value purchased by the creditor, passes to him at the time of the purchase, then the seller, or debtor, from that time until the time agreed on for its delivery, holds the value, thus sold, merely as the bailee of the purchaser, or creditor; and his obligations are only similar to the obligations of bailees in other cases. The value itself is at the risk of the purchaser, (or creditor,) from the time of the sale, unless it be lost through some fault, or culpable neglect, on the part of the seller, (or debtor.) The seller, (or debtor,) is only bound to due fidelity and diligence in the preservation of the value, and not for its absolute preservation. If it perish in his hands, or be lost out of his hands, without any fault or culpable neglect on his part, he is not answerable. The loss falls on the purchaser, and real owner, whose bailee he (the debtor) is from the time of the sale.

The contract of debt, therefore, presupposes a prior contract of sale, to wit, a sale, by the debtor to the creditor, of the money or value, which the debtor is to hold, for a time, as the bailee of the creditor, or purchaser.

It is important to be borne in mind, that this contract of sale, which, in point of law, precedes, although in point of time it is simultaneous with the contract of bailment, is, in reality, a sale, not of the specific money promised, but of a certain quantum of value, out of the debtor’s whole property, to wit, a quantum of value sufficient to produce or purchase [70] the amount of money promised; and which is to be converted into money by the time agreed on for the delivery.

This double contract of sale and bailment of necessity implies that the debtor has property in his hands, both for the sale and bailment to attach to—otherwise there would be no validity in either contract.* No contract, either of sale, or bailment, is of any validity, unless there be property for the contract to attach to, at the time it is made. It is in the nature of things impossible that a man can make a contract, either of bailment or sale, that can bind property, or convey any right to property, unless he have property, at the time, for the contract to attach to. All contracts of debt, therefore, whether morally void, or not, are legally void, unless the debtor have property, at the time, for the contract to attach to, and bind.†

A contract of debt, then, in order to be valid, must attach to such property as the debtor has at the time of the contract—because there is nothing else for it to attach to, and it must attach to something, or be utterly invalid. Its validity, as a legal contract, depends upon its attaching to something, at that time; and, of consequence, it has no validity beyond the property to which it then attaches, (and such as may become indistinguishably mixed with it prior to its delivery;) its validity lives only in the life of the property to which it attaches; and when the property, to which it attaches, is exhausted, its validity, as a contract, is exhausted. The obligation of the contract is fulfilled, when all the property, to which it attaches, and which it binds, is delivered to the creditor.

This contract of bailment, or debt, differs from other contracts of bailment, in no important particular, unless in these, viz.:

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1. That the bailment is of a quantum of value—to wit, enough to purchase the amount of money promised—existing in a form not designated by the contract, instead of a bailment of a specific thing. But this is obviously a difference of form merely, and not of principle.

2. That it is always of a quantum of value, that has just been sold by the debtor to the creditor. Indeed the bailment is one of the conditions of the sale. The debtor sells the value to the creditor, with a proviso that he (the debtor) shall be allowed to retain and use it for a time agreed upon.

3. That this quantum of value, not being designated, or set apart by the contract, from any other value, that the debtor may have in his hands, is, in reality, merged in the value of all the property, that the debtor, or bailee, has in his hands.

4. That this value is finally to be converted into some particular form, (generally that of money,) for delivery to the creditor, or bailor.

5. That the debtor, during the bailment, while bestowing his care and labor upon the whole property in his hands, in which the value bailed to him is merged, is allowed to take his necessary subsistence out of the mass; by reason of which it may sometimes happen, in cases of sickness, misfortune, or accident, that the value bailed may itself be diminished, or consumed.

6. The debtor, or bailee, is allowed to traffic with the whole property in his hands, and of course with the value bailed, which is merged in that property.

In this respect, however, the bailment of debt does not differ, in principle, from bailments to agents, factors, and commission merchants, who are authorized to traffic with, and exchange or sell the property intrusted to them. Where this is done, the same right of property, which the bailor had in the original commodity bailed, attaches to the equivalent which the bailee receives for it. And it is the same in the bailment of debt. The right of property, which the creditor has in the original quantum of value bailed to the debtor, follows that value, and clings to it, through all the forms [72] and changes to which the labor and traffic of the debtor may subject it.

Some of these points will be further discussed and explained in the next chapter.

That a contract of debt is a mere contract of bailment, as has now been described—that is, a mere bailment, by the creditor to the debtor, of a quantum of value sold by the latter to the former, and to be finally delivered in the shape of money, but in the mean time to remain merged in the general property of the debtor—seems to be too nearly self-evident to render a more elaborate argument, at this point, necessary. It will, however, be further discussed in the next chapter.

If debt be but a bailment, the value bailed is at the risk of the owner, (that is, of the creditor,) from the time he buys and pays for it, and leaves it in the hands of the seller, or debtor, until the time agreed on for its delivery to himself. If it be lost during this time, without any fault or culpable neglect on the part of the bailee, or debtor, the loss falls on the owner, or creditor. All the obligations of the owner or debtor are fulfilled, when he has used such care and diligence, in the preservation of the value bailed, as the law requires of other bailees, and has delivered to the creditor, or owner, at the time agreed upon, the value bailed, or such part thereof, if any, as may then be remaining in his hands.

If such be not the natural limit to the obligation of the contract of debt, then there is no natural limit to it in any case, short of the absolute delivery of the amount mentioned; a limit, that requires a debtor to make good any loss that may befall the property of the creditor in his hands, whether the loss be occasioned by his fault, or not; and whether he ever be able to make good the loss, or not; a limit, which, in many cases, condemns the debtor and his family to perpetual poverty, and a liability to perpetual oppression from the creditor, for a misfortune, or accident, to which property is always liable, and for which the debtor is not morally responsible; a limit very nearly allied, both in its legal and moral character, as well as in its practical effects, to that, which, in former times, required the debtor and his family [73] to be sold into slavery for the satisfaction of a debt, which the debtor could not otherwise pay.*

If such be not the natural limit to the legal obligation of debt—that is, if debts be naturally binding beyond the debtor’s means of payment when the debts become due, then all insolvent and bankrupt laws are palpable violations of the true and natural obligation of debts, and, consequently, of the rights of creditors; such violations as no government has the moral right, (however it may have a constitutional authority,) to perpetrate.

On the other hand, if such be the natural limit to the legal obligation of debt, then we have no need of insolvent or bankrupt laws at all, for every contract of debt involves, within itself, the only honest bankrupt law, that the case admits of.

If such be the natural limit to the obligation of debt, then there is, as a general rule, no moral, any more than legal obligation to pay, beyond the means of the debtor at the time the debt becomes due; and any subsequent promise to pay, is gratuitous and void.†

Taking it for granted, for the remainder of this chapter, that it has now been shown that a debtor is a mere bailee of the creditor, let us see some of the consequences, that follow from that proposition.

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1. As a contract of debt does not designate the specific value, to which it attaches in the hands of the debtor, it cannot be said to attach to any one part of the value in his hands more than to another. It therefore attaches to all. And if it attaches to all, it necessarily operates as a lien upon all that the debtor has in his hands, at the time the debt is contracted; also upon all that may become indistinguishably mixed with that, prior to its delivery or payment to the creditor.* This being the fact, each debt of course becomes a lien in the order in which it is contracted relatively to the others.†

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2. A second creditor, by selling value to a debtor, and giving him credit for it, would hold a lien for his debt upon the specific value so sold to him, so long as it should be kept [76] separate and clearly distinguishable from the value on which the prior creditor had a lien; because the first creditor could claim a lien only on that value, which was in the debtor’s hands, and to which his contract attached, at the time it was entered into; and on such other value, as, (by labor done on the property, or otherwise,) might become indistinguishably mixed with that, prior to its delivery, or payment to him, (the creditor.)

If B mingle his property, as grain, wine, or money, for instance, indistinguishably with property of the same kind belonging to A, without the knowledge of A, or without any agreement, express or implied, that, in case of a diminution of the mass by accident or otherwise, there shall be a division of the remainder according to their original proportions respectively, the loss of any diminution that may befall the mass, falls upon B. On this principle, if a second creditor should suffer the value, which he should sell to a debtor, and on which he had a lien in the hands of the debtor, to become indistinguishably mixed with value in the same debtor’s hands, on which a prior creditor had a lien, and there were no agreement between the two creditors, for a division in case of loss, the first creditor would be entitled to take his whole debt out of the mass before the second creditor should receive anything; for it could not be presumed, without an express agreement, that a prior creditor would authorize his debtor to give a second creditor an equal lien with himself on the whole property in the debtor’s hands, even though the second creditor should pay an equal amount of value into the mass with that paid by the first creditor; because the first creditor might suppose the debtor incompetent to manage the two loans so advantageously, or so beneficially for his (the creditor’s) security, as he would have managed one only, and might therefore not have consented to the mixture of the two loans on the footing of equal liens. The first creditor might also think it necessary for his security, that the whole labor of the debtor should be bestowed on the first loan; and might therefore have objected to the mixture of another loan with it, to take an equal lien with [77] his own. And especially it could not be supposed, without an express agreement to that effect, that a creditor would have such confidence in the judgment of the debtor, as to be willing that he should take capital from others, at his (the debtor’s) own estimate of its value, mix it with that received from himself, and place these subsequent creditors on the same footing with himself, as to their rights in the mass. The first creditor would wish an opportunity to judge for himself, instead of leaving it wholly with the debtor to judge, whether the value contributed to the mass by the succeeding creditors, was such as that his security would not be weakened by allowing them to share that security equally with himself, in proportion to their debts.

3. If each creditor holds a lien upon the value of all the debtor’s property, in the order in which their debts respectively were contracted, it would of course be fraudulent for a debtor to pay a second creditor, before paying a first, especially if the first should suffer a loss in consequence.

For such a fraud the debtor would be liable to a prosecution for swindling, and would also be liable in damages, if any damages should be suffered by the first creditor in consequence of it; and for these damages his future earnings would be liable forever, as in the case before mentioned, and not merely his present property, as in case of debt.

But the first creditor, in such a case, would have a right to recover, of the second creditor, the amount thus fraudulently paid to the latter by the debtor, on the ground that he (the second creditor) was not an innocent purchaser for value; that he had merely received, on a debt already contracted, value that belonged to a prior creditor; and that he (the second creditor) not having, either innocently or otherwise, paid any additional value to the debtor, as an inducement to the debtor’s payment to him, would be in no worse condition on restoring the value to the first creditor, than he would have been if it had not been wrongfully paid to him.

This right of a prior creditor to recover of a succeeding one, any value that should be paid to the latter in fraud of the prior creditor’s rights, taken in connexion with the [78] debtor’s liability as a swindler, and his perpetual liability for any damages caused to the prior creditor by such fraudulent payment, would be an effectual prevention of such payments. The principle of the prior right of the prior creditor, would thus be firmly established in practice; all those endless frauds, by which the value rightfully belonging to one creditor, is now with impunity appropriated to the payment of another, would be prevented; and credit would be placed on the secure basis of each creditor’s knowledge of the property liable for his own debt.

4. If a creditor should not demand his debt at the time it became due, his neglect to do so would be a waiver of his prior right to payment, and would make it lawful for the debtor to pay a subsequent debt, if the latter should become due before the prior one was demanded.

For this reason, (as has before been mentioned,) the principle of the prior right of the prior creditor, would be no obstacle to banking, by the issue of notes payable on demand; nor to the payment of a subsequent note while a prior one was still in circulation—because a note payable on demand is due as soon as it is issued, and if its payment be not immediately demanded, the neglect is a waiver of the right of priority.

5. If a debt were not paid immediately on its becoming due, the creditor could not take interest for the delay out of the debtor’s property, to the injury of a succeeding creditor—for interest, after a debt is due, is no part of the debt itself; it is only the damage that is allowed for the detention.* The first creditor holds a prior lien on the debtor’s property only for his debt; and not for any damage he may sustain by reason of his debt not being paid when due. This claim for damage, being a separate matter from the debt itself, would not legally attach to the debtor’s property, until its amount was legally ascertained and adjudged; and it could then attach to it only in its order with reference to other claims, and not to the prejudice of any prior ones.

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The effect of this principle would be to make creditors prompt to collect their debts immediately on their becoming due, especially when there was any doubt as to the solvency of the debtors—because, as their claims for damage would not be entitled to the same priority as their debts, they would be liable to lose them entirely, or to be under the necessity of holding them against the debtor until he should have made some accumulations over and above his debts.

But the debtor would choose to pay when due, because for any damage occasioned by his delay, (unless the delay were occasioned by some other cause than fault on his part,) his future earnings would be liable, as in any other case of damage occasioned by his fault.

6. If a creditor should not demand, and, in case of nonpayment, sue for his debt, immediately, or at least very soon after the debt became due, the delay would afford a presumption that the debt was extinct, by reason of the debtor’s inability to pay. And if, at a subsequent time, the creditor should sue for the debt, the burden of proof would then be upon himself to prove that, at the time the debt became due, the debtor actually had means in his hands to satisfy it.

So if a creditor should obtain judgment for his debt, and that judgment should remain unsatisfied for any considerable time, that fact would afford a presumption of the debtor’s inability to pay, and throw upon the creditor the burden of proving that, at the time the judgment was obtained, the debtor had the means of paying it; because a judgment, founded merely on a debt, (and not on a wrong,) would attach only to the property that the debtor had in his hands at the time it was rendered.

7. If a debtor should be unable, when his debt became due, to pay the whole of it, it would be his duty to tender the most that it was in his power to pay. If the amount tendered should not be accepted in full discharge of the debt, it would be his duty to preserve it, (for the creditor’s future acceptance,) separate and distinct, both from subsequent acquisitions of his own, and also from any future loans that he might procure.

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In case of a tender made by a debtor, the creditor could afterwards obtain judgment only for the amount tendered, unless he should prove—at least to the reasonable satisfaction of a jury—that the debtor had not tendered all that it was in his power to pay. But it would not be necessary for a creditor, in order to obtain judgment for more than the amount tendered, to prove, by actual witnesses of the fact, that the debtor had a larger amount in his hands at the precise time the debt became due. It would be sufficient for him to show that the debtor had not reasonably accounted for all the property that he had had in his hands either when the debt was contracted, or at any time previous to its becoming due. For these reasons, it would be important for debtors, especially for those who had little or no property in their hands more than enough to pay their debts, to keep such accounts and vouchers of their dealings, as would enable them always to account for any losses that might happen prior to their debts becoming due.

8. If a debtor be merely the bailee of his creditor, then the laws, which, on the death of a debtor, give the property, that was in his hands, to his family, to the prejudice of his creditors, are all void—as much so as would be laws, that should arbitrarily give any other men’s property to the same debtor’s family.

9. If a debtor be merely the bailee of the creditor, a fine imposed upon the debtor by the government, as a punishment for an offence, cannot be satisfied out of property in his hands to the prejudice of his creditors. It can only attach to his property in its order relatively with other claims.

10. If a debtor be the mere bailee of the creditor, his obligations in regard to the preservation of the value bailed to him, are similar to the obligations of bailees in other cases.

The degree of care, which the law requires of a bailee for hire, is that degree of care, (incapable of being measured with perfect accuracy, and therefore only capable of being judged of by a jury in each case separately,) which reasonable and prudent men ordinarily take of their own property. [81] The law, however, does not require of a bailee, that he possess an equal judgment with other men, for the management of property. The bailor, or owner of the property, must take the risk resulting from any defect of judgment, on the part of the bailee—for weakness of mind is no fault; and the bailor, therefore, must judge for himself of the mental capacity of the bailee, before he entrust his property to him. All that the law requires of the bailee is, that whatever judgment he may possess, be exercised honestly, in good faith towards his bailor, and with such care and diligence in the use, custody, and management of the property entrusted to him, as prudent men generally exercise in the use, custody, and management of their own property.

In the case of a gratuitous loan, the bailee is bound to exercise still greater care and diligence, in the preservation of the property bailed, than in a case of bailment for hire.

A bailment of debt, however, differs from other bailments, in this particular, to wit, that the value bailed is merged in, and indistinguishably mixed with, the general property of the debtor. The debtor must, of course, take the necessary subsistence of himself and family out of the whole mass of property in his hands; and hence arises an obligation somewhat peculiar to this species of bailment, to wit, an obligation to practise such a degree of economy and frugality in one’s mode of living, as is obviously necessary to save the amount bailed from consumption, and enable the bailee to repay the whole loan to his bailor. Good faith requires this of the bailee; and the law of bailments requires of the bailee, in all cases, everything that is essential to good faith. But what that economy and frugality are, which good faith towards a creditor requires of a debtor, may depend upon a variety of circumstances, and be very different in different cases. If, for example, a man owed but one thousand dollars, and had ten thousand dollars of property in his hands, he could, consistently with good faith towards his creditor, maintain substantially the same style of living that a prudent man would, who possessed nine thousand dollars, and owed no debts at all. On the other hand, if a debtor had no [82] property at all, in his hands, except what had been loaned to him; and out of that and the value added to it by his labor, he was under the obligation of paying his debt and supporting his family, good faith towards his creditor would require that he practise such a degree of economy, (a stringent frugality even where the case plainly demanded it,) as would be likely to enable him to accomplish both objects; because it cannot reasonably be supposed that his creditor would have loaned him the capital, except upon the understanding that he should practise all the economy that would be obviously necessary, (setting aside unusual and unexpected contingencies,) to enable him to repay it. Nevertheless, in the case of debt, the precise measure of duty, on the part of the debtor, or bailee, cannot be defined with perfect accuracy, any more than in the case of any other bailment. All that can be said is, that the debtor is bound to do all that good faith towards his creditor requires, under the particular circumstances of each case; and the general rule is, that a bailee must practise the same care, diligence, and economy, in the management of the property bailed to him, that prudent men generally use in the management of their own property, in like circumstances; and the judgment of a jury is the final criterion for determining whether the care, diligence, and economy observed by a bailee have been such as are usually observed by other men.

11. If a bailee, or debtor, be guilty of any fraud in procuring the bailment, or of any fault, culpable neglect, or want of good faith in the custody, use, or management of the value bailed, whereby any loss should accrue to the bailor, or creditor, the bailee or debtor will be liable, not on his contract, but in an action on the case for damages; and for the satisfaction of these damages his future acquisitions will be liable forever, and not merely his present property, as in the case of debt. The reason of this distinction is, that the ground of his liability, in the former case, is a wrong done by him; in the latter, a contract. For a wrong done to another, the wrong doer can obviously be discharged from his liability only by making reparation. But from a contract [83] he is discharged when he has delivered all the value, which the contract attaches to, and binds.

12. If a debtor do not pay his debt at the time it becomes due, (unless he have some valid excuse for not paying it at that time,) and all the property in his hands should afterwards be lost, even by accident—by such an accident as would have excused him forever from the payment, if it had happened before the debt became due—he will be liable in damages, (and his future acquisitions be responsible;) because, but for his fault in withholding the value beyond the time agreed on for its delivery, (or payment,) it would not have been exposed to the accident, by which it was lost. Such is the rule in other bailments; and the principle would apply with equal propriety to the bailment of debt.

13. If a debtor, before his debt becomes due, should use the value bailed to him in a manner wholly or plainly different from what could be reasonably presumed to have been the agreement of the parties that it should be used, and the creditor should suffer loss in consequence, the debtor would be liable in damages, and his future acquisitions will be responsible.

14. If a debtor, previous to his debt becoming due, should commence any wasteful, profligate, or manifestly unfaithful expenditure of the value bailed to him, whereby he should be plainly endangering his creditor’s security, the creditor would have a right to the interference of a court of equity to restrain the debtor, and, if need be, compel him to make payment of what he had in his hands before the time agreed upon for the payment; for all the rights of the debtor, to hold the property, by virtue of the contract, are at an end the moment he violates the conditions of the bailment, if the creditor choose to avail himself of the violation to cancel the contract, and recover the property bailed.

Such are some of the leading principles, drawn from the general law of bailments, and applicable to the bailment of debt, if debt be but a bailment. How much more beneficial these principles are to the interests of both creditors and debtors; how much more strongly protective of the rights of creditors, and how much less barbarous and absurd [84] towards debtors; how much more promotive of sound, safe, and generally diffused credit, than are the principles, (if arbitrary rules, that violate all principles, and acknowledge none, can themselves be called principles,) that are now acted upon by legislatures and courts of law, in reference to the same subjects, need not be particularly set forth; for light and darkness, truth and falsehood, reason and absurdity, justice and injustice, present no stronger contrasts than those two systems do to each other. One system is founded in natural law, and, like all the principles of natural law, is defensive of all the rights, and benign in its influence upon all the lawful interests that it reaches. The other is a mere relic of that barbarous code, (as false in theory, as merciless in practice,) which sold the debtor and his family into slavery, or, (in later days,) doomed him to prison, like a felon, whenever, by reason of contingencies, to which all property is liable, and which he could not foresee, nor be expected to foresee, he proved unable to fulfil the letter, instead of the true law, of his contract.

It remains, in this chapter, to suggest the nature of the cases where a moral obligation to pay, may remain after the legal one has expired.

Where the contract has been entered into by both parties, creditor as well as debtor, with a view to profit only, and as a mere matter of business, and the loss has occurred from the necessary hazards of business, or the contingencies to which property is always liable, and not from any fraud, fault, neglect, or bad faith on the part of the debtor, no moral obligation will remain after the legal one is extinct.

But where the creditor has entered into the contract, and advanced capital to the debtor, not with a view to profit for himself, but as a matter of favor or kindness to the debtor, there a moral obligation will remain after the legal one has expired; because we are all under a moral obligation to save our friends from suffering any loss by reason of any kindnesses they may do for us.

Again. Where it was the intention of the creditor, that the only property, in the hands of the debtor, to which the contract of debt attached, or could attach, should be consumed [85] by the debtor—as, for example, where one man should sell food to another, who was so destitute that he had nothing for his contract of debt to attach to, except the food itself which he had just bought of the creditor, and which it was the intention of the creditor that he should eat, there the moral obligation to pay would remain after the food was consumed, and after the legal obligation of the contract was consequently extinct.

There are some cases, where there would be a moral obligation to pay, where no legal one had ever accrued at all—as, for example, where a physician should render his services to a sick man, who had no property in his hands for a legal contract of debt to attach to.

It may be thought an objection to the system here advocated, that it makes no provision for the legal enforcement of moral obligations of so palpable a character as those here mentioned. But the objection ought to vanish, when it is considered how very few such cases would need to arise, if the whole system of credit, which natural law authorizes, and which has been here advocated, were in operation; for few persons only, if any, would then be so destitute as to have nothing for a legal contract to attach to, or as to need to receive pecuniary assistance on such grounds as these cases contemplate. Besides, there is no more reason why compensation should be enforced by law, for every kindness of a pecuniary nature, that one man does to another, than for kindnesses of any other sort. The honor, gratitude, and sense of duty of mankind may be safely trusted to make suitable returns for all the kindnesses which men will be likely to show to each other, where they have no legal guaranty of compensation. Such is the prudent character of men’s benevolence generally, that the number of such benefits conferred will not be so great as to bring any serious injury to their authors, even if some of them should actually go unrequited. Besides, the sense of gratitude, on the part of receivers, is generally commensurate with the generosity of givers. The cases, where the former falls short of the latter, are too few to be a matter of any concern to the government.

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CHAPTER VI.: THE LEGAL NATURE OF DEBT.—(Continued.)

Some persons may not have been convinced, by the arguments already offered, that debt is but a bailment. The doctrine is also too important to be dismissed without offering all the arguments that go to sustain it. Some further explanations of collateral questions are also necessary. These additional arguments and explanations have been reserved for a second chapter, for the reason that, to many minds, I apprehend, they will be unnecessary, and therefore tedious; and for the further reason that the matter will be simplified by presenting them separately from those in the preceding chapter.

There remain two lines of argument, which go to prove the same point, to wit, that debt is but a bailment—and which, for the sake of distinctness, will be presented separately. It will be impossible, in presenting them, to avoid entirely a repetition of some of the ideas already expressed.

FIRST ARGUMENT.

In order to get at the true nature and obligation of debt, it is necessary to consider that a promise to pay money is of no legal importance, except as evidence of debt. It does not, of itself, create the debt. It only aids to prove it.

Neither do the true nature and obligation of debt consist in, nor even rest at all upon, the merely moral obligation of a promise to pay. A naked promise to pay money is of no obligation, in law, however sincere may have been the intention of the maker to fulfil it. The legal obligation of debt never arises from the fact that a man has made a promise to pay money. It is entirely immaterial to the validity of a debt, whether the debtor have made any promise or not. [87] The debt does not arise from the promise; the promise is only given as evidence of the debt.

The legal obligation of a debt, then, is something entirely distinct from the moral obligation of a promise, or the moral obligation to keep one’s word. The promise is given merely because the debt is due, and as evidence that the debt is due. It is no part of the legal obligation of the debt itself.

If a promise be made when no debt is due, the promise is of no importance in law. On the other hand, if a debt be due, and no promise have been given, the debt is equally valid, as if a promise had been given. These facts show that the promise is nothing material, either to the existence or to the obligation of a debt. A debt may be created without giving a promise; and a promise may be given without creating a debt.

In order, therefore, to get at the true nature of debt, it is necessary to separate it entirely from the idea of a promise. It is this false idea of the legal obligation of a promise, that interposes itself before our minds, and prevents our seeing the true nature and obligation of the debt.

But it is said by the lawyers, that when a man has “received value,” as a “consideration” for his “promise,” his promise is binding. But it is an entire misstatement of fact, and conveys wholly erroneous ideas of the nature of debt, to say that the debtor receives value, as a consideration for his promise. A man never pays a consideration for a promise—for a promise, as we have seen, has, of itself, no legal obligation, and is of no consequence to the validity of a debt. To say, therefore, that a man pays a consideration for a promise, is equivalent to saying that a man pays his money for nothing—for that which has no value of itself, and is of no legal obligation.

If, then, the creditor do not pay “value” to the debtor as a consideration for the debtor’s promise, for what does he pay it to him? Obviously as the consideration, or price, of the thing promised—that is, as the price of the equivalent, which the debtor sells to him in exchange. If, for instance, A sells to B a horse for an hundred dollars, and takes B’s [88] promissory note therefor, he does not sell the horse for the note, but for the hundred dollars; and he takes the note merely as evidence that he has bought the hundred dollars, and paid an equivalent (or value) for them, and that they are therefore now his, by right of property; also as evidence of the time when they are to be delivered to him.

This brings us to a perception of the fact, that the “value received” by the debtor from the creditor, and the sum, or value, which the debtor promises to pay or deliver to the creditor, are merely equivalents, which have been mutually sold or exchanged for each other.

If these equivalents have been mutually sold, or exchanged for each other, each equivalent has bought and paid for the other; and, of necessity, the right of property in each equivalent passed to its purchaser, at the same time that the right of property in the other equivalent passed to its purchaser—that is, at the time of the contract.

But that, which makes one of these parties the debtor of the other, when there has been merely an exchange, or a mutual purchase and sale of equivalents, between them, is simply this, viz., that the value, which is sold by one of the parties to the other, is, by agreement, to remain, for a time, in the hands of the seller, for his use.

A debtor, therefore, is one, who, having sold value to another, and passed the right of property in it to the purchaser, retains it for use until a time agreed upon for its delivery. At the end of this time, the creditor can claim this value, because it is his, he having previously bought it, and paid for it—and not because the debtor has promised to deliver it at that time. The debtor’s promise to pay, or deliver, this value to the creditor, at the time agreed upon, is not of the essence of the contract, by which the creditor acquired his right of property to the value promised; and it is of no importance whatever except as evidence that the value, thus promised to be paid, or delivered to the creditor, has been already sold to him, paid for by him, and now belongs to him; and that the debtor has no right to retain it, for use, beyond the time when he has promised to deliver it. [89] The promise, therefore, instead of being evidence that the right of property, in the value promised, has not passed to the creditor, is only evidence that it had (in point of law) passed to him before the promise to deliver it was made.

The right of property, in the value to be paid by the debtor, must have passed to its purchaser, the creditor, at the same time that the right of property, in the “value” paid by the creditor, passed to its purchaser, the debtor—that is, at the time of the contract; else the creditor would have parted with his “value,” or property, (that which he paid to the debtor,) without receiving any equivalent for it. He would merely have received a promise, which, as we have seen, is of no legal value, of itself, and could be used only as evidence. And it could be used as evidence only to prove that the creditor had paid value to the debtor in exchange for an equivalent; that he had thus bought the equivalent; and that he was then, of course, the owner of the equivalent thus bought and paid for—notwithstanding it were still remaining in the hands of the debtor.

The promise, therefore, would be of no avail, even as evidence, unless the right of property in the value promised to be paid, or delivered, had already passed to the creditor—for that is the only fact, (in case of debt,) which the promise can be used to prove.

But perhaps it will be said, (and this is all that can be said on the other side,) that the promise, and the acknowledgement of the receipt of value, by the debtor, may be used to prove that the creditor has paid value to the debtor in exchange for an equivalent, which the debtor was to deliver, or pay, to the creditor at a future time. True it may; it can be used for that purpose, and no other. But that is, in reality, only asserting, instead of contradicting, what has already been stated, viz., that the promise may be used to prove that the creditor has bought value of the debtor, and paid for it; and that it, (the value thus bought and paid for,) is therefore now his, (the creditor’s,) by right of property, and has been his ever since he bought and paid for it, to wit, ever since he paid his value to the debtor—for (as has before [90] been mentioned) it is absurd to say, when a man has bought and paid for a thing, that he does not own it, (has not the right of property in it,) merely because it was left for a time in the hands of the seller.

The essential error in the common theory of debt, is, that it supposes that the creditor acquires no present right of property—at the time the contract is made, or at the time he pays his value to the debtor—in the equivalent which the debtor promises to pay or deliver to him; that he only acquires a right of property in this equivalent when it is finally delivered, or paid to him—which may be days, months, or years after he has really bought it and paid for it. It supposes that he pays his value to the debtor, and passes his right of property in it to the debtor, without at the time acquiring, in return, any equivalent right of property in the value which the debtor is to pay, or to deliver to him.

This error results, in part, in this way, to wit; because the value sold by the debtor to the creditor, is, at the time of the sale, merged in the whole value of all the debtor’s property, and is to remain so merged until it is finally separated and converted into money, for the purpose of delivery, we overlook the fact, that the right of property in it has nevertheless as much passed to the purchaser, (that is, to the creditor,) as if it were already separated from the mass of the debtor’s property, and delivered to the creditor.*

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This error is further strengthened by our confounding, in the first place, the idea of a promise, and the obligation of the debt; and, in the second place, the right of property, and the delivery of the property itself. The promise, and the obligation of the debt, as we have already seen, are entirely distinct matters. So also the right of property, and the delivery of property, are entirely distinct matters. Neither depends at all upon the other.* The right of property is acquired when it is bought and paid for; the delivery only gives the owner the possession of what was already his. A creditor, therefore, acquires a right of property in the value promised to him, at the time he pays his value for it—whether the actual delivery or payment of the value promised takes place at that time, or months, or years afterwards. If this were not so, the creditor, during the whole period, between the time when he pays his value to the debtor, and the time when the debtor finally delivers or pays to him the equivalent value, is without any right of property at all, either in the value he has parted with, or in the value that he is to receive for it. And if he has no rights of property, during all this time, to either of these values, he has, of necessity, no rights at all in reference to them; and never can have by virtue of his contract. He only holds a promise, which could be used as evidence of his rights of property, if he had any such rights; but which, on the theory that he has no such rights, can be of no use whatever.

If it be now established, that the value paid by the creditor to the debtor, and the value promised by the debtor to the creditor, are merely equivalents, that are mutually bought and sold for each other; and if it be also established that the right of property, in each of these equivalents, [92] passes to its purchaser, at the same time that the right of property in the other equivalent passes to its purchaser, to wit, at the time of the contract, instead of at the time of delivery, these facts furnish us with an explanation, or definition of the true legal obligation of a debt. They define this obligation to be the obligation of a seller to preserve for, and deliver to his purchaser at a time agreed upon, value, which he has sold him, and the right of property in which has already passed to him.

If this definition be correct, a debt (or sum due) is merely an amount of value, which has been sold by one person to another, and is to be delivered to him at a time subsequent to the sale. And a debtor is merely one, who has sold value to another, but retains the custody and use of it for a time after the sale, and is bound to deliver it to the purchaser, on demand, or at a future time agreed upon.

If these definitions of debt, debtor, and the obligation of a debt, are correct, they prove that from the time the contract (by which the debt is created) is entered into, up to the time the value due is to be delivered, the debtor is the mere bailee of the creditor; for a man, who continues to hold property, that he has sold to another, is merely the bailee of the purchaser; he is the mere holder, user, and hirer of the value, which he himself has sold, but not delivered; and all the necessary consequences of bailment follow; and the legal principles of bailment apply. One of these principles, as has before been stated, is that if the property bailed be lost or injured during the bailment, without any fault or culpable neglect on the part of the bailee, the loss falls on the bailor, or owner.

SECOND ARGUMENT.

It is a principle of natural law, that a contract for the conveyance of property is void, unless there be property owned by the maker, for the contract to attach to, at the time it is made. If, for instance, A should give to B, a deed of a farm, which A did not own, the deed would be void. It [93] would convey no rights to B, simply because A owned no such farm for the contract to attach to—or, what is the same thing, because it is, in the nature of things, impossible that he could convey to B any rights, which he did not himself possess. And even if A should afterward become the owner of the farm, the deed that he had previously given of it to B, would give B no title to it. To convey the farm to B, a new deed would have to be given, simply because, at the time the first deed was given, A had no right of property in the farm, for his contract to attach to and convey. His first deed being void, at the time it was given, it could never afterwards be made a legal conveyance of rights subsequently acquired.

Again. If A should make a contract, purporting to convey to B his (A’s) right, as heir, in his father’s estate, while his father was yet living, the contract would be void, simply because, while his father was living, he had no right, as heir, in his estate. And even after his father should have died, and he should have become heir to his estate, B could not hold it under any contract that had been made prior to A’s becoming entitled as heir—all for the simple reason, that at the time the contract was entered into, there was no legal right or property in A, for his contract to attach to and convey. And if it attached to nothing at the time it was entered into, it never could attach to anything. No contract, that a man can enter into at one time, can, in the nature of things, be made a legal conveyance of any rights which he did not then possess, and which he should only acquire subsequently.

If A were to give to B, a bill of sale of a horse, which he (A) did not own, B would acquire no rights to the horse by it; simply because A had, at the time, no ownership, or right to the horse, that he could convey. And even if A should afterwards become the owner of the horse, B could not hold him, or claim him, under the bill of sale that had been previously given—solely for the reason that, as there was no right of property, in A, to the horse, at the time the bill of sale was given, the contract was void. It conveyed [94] nothing, because the maker of it had no rights that his contract could convey. There was nothing for the contract to attach to. The contract being void at the time it was entered into, nothing that might happen afterwards could make it a valid conveyance of rights subsequently acquired. B could then get the horse only by a new sale, or a new contract, to be made after A had become the owner of the horse.

In all these three cases, that have been named, where the sale proved void, for want of any right in A to the thing purported to be sold, B could recover back his consideration money, on the ground of its having been paid without any equivalent, or value received. And in an action to recover it, he could use the deed, bill of sale, or other contract, as evidence that he had paid the consideration money; but the contract itself would convey him no rights, either to the land, the inheritance, or the horse, simply because A, at the time of making the contract, had no rights that he could convey. And B would recover his consideration money, solely because the grant or contract had conveyed him no rights.

These cases are put simply to illustrate the principle, that a contract, for the conveyance of property, is void, and conveys no rights whatever to the grantee, unless the grantor be the possessor, at the time the contract is entered into, of the rights his contract purports to convey. Any subsequent ownership, that he may acquire, is not transferred to the grantee by any contract made previous to his becoming the owner. There being, in the grantor, at the time the grant is made, no such rights as the contract purports to convey, the contract is void, inoperative; and being void at that time, nothing can give it validity at a future time. It can only be used as evidence that the grantee has paid his money without consideration, and ought to recover it back. And if he wishes to acquire the specific property contracted for, whenever it may afterwards happen to come into the hands of the grantor, he must do it by a new contract—the old one being absolutely inert, lifeless, invalid, for any purpose of a conveyance. And it is equally invalid, so far as any conveyance [95] of rights is concerned, whether the grantee have actually recovered his consideration money, or not. It may be useful, as evidence, to enable the grantee to recover the money he has paid; but it is incapable of any validity as a conveyance.

The force and justness of this principle will be more clearly seen, when it is considered what a contract really is. It is merely a consent, agreement, assent—a mere operation of the mind. The written instrument, called a contract, is only the evidence of the mental contract, or consent. It has no validity otherwise than as such evidence. The only really material matter is the mental operation, or assent.* Now this mental exercise, or assent, can obviously produce no effect, except while it is in action. It must therefore pass the right of property then, or never. If, while it is in action, the right of property be in the person who experiences this assent, the assent passes the right of property to another. But if the right of property be not in him, while experiencing this sensation of assent, the sensation accomplishes nothing, because there is nothing on which it can operate. And if the person should ever after become the proprietor of the thing to be conveyed, he must experience the sensation again, in order to make the conveyance, because his former consent was of no force except while it continued.

This principle being established, that a contract for the conveyance of property, has no legal force, or validity, as a conveyance—that is, that it attaches to nothing, and conveys no right to anything—unless the maker, at the time the contract is made, be the owner of the rights he purports [96] to convey, let us apply the principle to the case of a promissory note.

A promissory note is a contract (or, more accurately speaking, the evidence of a contract) for the conveyance of property—that is, of money. It is a bill of sale of money, that has been sold and paid for, and is to be delivered at a future time. It differs, in some particulars, from the contracts just mentioned, in regard to land, a horse, &c.; but it does not differ from them, in any particular that is essential to the principle just stated, to wit, that a contract for the conveyance of property, attaches only to the property that a man has when the contract is entered into—(and, of consequence, to such other property as may become indistinguishably mixed with it prior to the delivery.) The rights, which a creditor acquires by a promissory note, (or by the contract of which the note is the evidence,) are rights which attach to the debtor’s property the moment the contract is entered into, even though the money is not to be delivered for months or years afterward. And if the debtor have no property for the contract to attach to, at the time the contract is entered into, the contract is void, and can never afterwards attach to anything. And this is on the same principle, that a deed of a farm attaches to the farm from the moment the deed is made, and that the right of property in the farm passes, at that moment, from the seller to the buyer, even though the possession of the farm is, by agreement, not to be delivered for months or years afterwards. So also a bill of sale of a horse, attaches to the horse, and the right of property in the horse passes from the seller to the buyer at the moment the contract of sale is entered into, even though the horse, by agreement, is not to be delivered until a subsequent time. On the same principle, the right conveyed by a promissory note, (which is merely a contract for the sale and delivery of money,) attaches to the debtor’s property, and the lien passes to the creditor at the moment the contract is entered into, even though the money is not to be delivered until months or years subsequent. The right of the creditor must attach at the time the contract is entered into, or, for the [97] reasons already given, it can never attach at all; and would therefore convey no rights at all to the creditor.

The principal points, in which a deed of land, or a bill of sale of a horse, (where the possession is to be delivered at a time subsequent to the contract,) differs from a promissory note, are these:

1. A deed of land, or a bill of sale of a horse, necessarily describes or designates a particular piece of land, or a particular horse; and it necessarily applies or attaches only to the one so described, because there is, and can be no other precisely like it. Bat a promissory note does not describe the particular dollars, that are sold, or are to be delivered, but only the number of them. It therefore does not apply, or attach to, any particular dollars; and it is not necessary that it should, because all dollars are of equal value, and therefore it is immaterial what particular dollars shall be delivered.

2. As a promissory note does not describe or designate the identical dollars sold, it cannot apply, or attach to any particular dollars, any more than to any other dollars that the debtor may have.

3. As a promissory note does not describe, designate, or attach to any particular dollars, in preference to others, it does not imply that the identical dollars, that are finally to be delivered, now exist in the hands of the debtor. And if it does not imply that those identical dollars now exist in the hands of the debtor, it does not even imply that the amount of value, which the dollars contain, or (in other words,) the amount of value which the note conveys, now exists (in the hands of the debtor) of the debtor) in the shape of dollars, any more than that it exists in any other particular shape, from which it can, by the time agreed on for the delivery, be converted into the particular dollars that shall finally be delivered, or into any dollars that the debtor may have a right to deliver in fulfilment of his contract. As the note does not describe or designate the identical dollars, that are sold by the contract, it does not imply or describe the particular shape, in which the amount of value sold, now [98] exists; for if it do not imply that it exists in the shape of the identical dollars that are to be delivered, it does not imply that it exists in the shape of any other dollars, any more than that it exists in the shape of corn, wool, or iron. It only implies, therefore, that it exists, (that is, that the amount or value conveyed by the note exists,) in the hands of the debtor, in some shape or other, from which it is susceptible of being converted into dollars by the time agreed on for the delivery.

4. As the note does not describe the particular shape in which the value conveyed by it now exists, and does not even imply that it now exists in the shape of dollars, the note is, in effect, a lien upon all a man’s property for the number of dollars mentioned in the note; or it is a sale of so much value, existing in some shape or other, as will procure, or exchange for the number of dollars mentioned in the note, rather than a sale of any particular dollars themselves. That such is the fact, is evident from two considerations, to wit; first, that the identical dollars sold are not described, and therefore cannot be known; and, secondly, that the debtor is to have the use of them until the time agreed upon for the delivery. As the dollars, while remaining in the specific shape of dollars, can be of no use to the debtor, and can be used by him only by converting them into other commodities, and as they are to be left in his hands, for a certain time, solely that he may use them, it follows that it must have been the intention of the parties that the debtor should have the right of converting them into other commodities that might be productive, or susceptible of use in the mean time — that is, until the time of delivery; and, therefore, that the creditor should have his lien upon them, or upon an amount of value equivalent to them, into whatever shape they might be converted, or through whatever changes they might pass, previous to delivery; and that, in time for the delivery, this amount or value was to be converted again into dollars for that purpose.*

5. As the contract, to be of any validity, (that is, to convey any rights,) must, from the moment it is entered into, attach to something or other in the hands of the debtor; and as it does not designate, or therefore purport to attach to the identical dollars that are to be delivered, it can only attach to the general property of the debtor, as a lien for the number of dollars to be delivered. Unless it thus attach to the general property of the debtor as a lien, it would, of necessity, be a nullity, having no legal operation whatever, simply because there is nothing else for it to attach to.

A promissory note, therefore, for an hundred dollars to be delivered at a future time, is, in reality, a contract of sale of so much value, existing, in some shape or other, in the hands of the debtor, as will produce an hundred dollars. Such a contract is, in effect, a lien, for that amount, upon a man’s whole property, even though his whole property should be equal to an hundred times that amount — and why? Because, as the particular amount of value, or property, to which the contract attaches, is not described, or set off distinctly from the rest of his property, the debtor can never show, as long as any portion of his property remains in his hands, and the debt is unpaid, that the portion remaining in his hands is not the portion that was sold, and promised to be delivered. Besides, if, by the time of delivery, it shall appear that all his property has disappeared except a single hundred dollars, it is more reasonable to suppose that he has disposed of his own property, than that he has disposed of that to which his creditor had on equitable right.

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A promissory note, then, for an hundred dollars, is a mere bill of sale of an hundred dollars, that are to be delivered at a future time; or rather a bill of sale of so much value, (now existing, or presumed to exist, in some other shape than that of the identical dollars which are to be delivered,) as will purchase an hundred dollars at the time agreed upon for the delivery. Although, then, a promissory note difers from a bill of sale of a horse, or a deed of land, in not describing or designating the identical dollars sold, and therefore in not attaching to any particular dollars which the debtor may have on hand at the time the contract is entered into, it is nevertheless precisely like a bill of sale of a horse, or a deed of land, in this respect, to wit, that the rights of the creditor attach, from the moment the contract is made, to an amount of value, (existing in the hands of the debtor, in some shape or other,) sufficient to produce, or be converted into, the number of dollars mentioned in the note.

But perhaps some may be disposed to deny that there is any such analogy, as I have supposed, between a promissory note and a deed of land, or a bill of sale of a horse; or any analogy that makes it necessary that there should be any property, in actual existence, for the contract expressed in the note, to attach to. And perhaps they will say that the different form of a promissory note from that of a deed, or bill of sale — the former being a “promise to pay” at a future time, and the two latter being express grants in the present tense — implies that the note conveys no such present right of property to the payee, as a deed does to the grantee, or a bill of sale to the vendee.

To see the fallacy of this objection, it is necessary to get rid of words, and get at ideas; or rather to get rid of that confusion of ideas, which results from the habit of arbitrarily using different words to convey the same essential ideas. For instance. We “pay” money for a horse, and we “sell” a horse for money — such is the common use of words. Yet, in reality, we as much “pay” the horse for the money, as the money for the horse. And we as much sell the money for the horse, as the horse for the money. The horse buys the money, as much as the money buys the horse. The horse and the money are equivalents, which are mutually exchanged for each other; which mutually buy each other; which are mutually sold for each other; which mutually pay for each other. In every exchange of equivalents of this kind, there are two purchases, and two sales. One of the parties sells his horse for money, the other his money for a horse. One of the parties buys a horse with money, the other buys money with a horse. And this is the whole matter.

When, therefore, a man sells a horse for money, and promises to deliver the horse at a future time, the contract is of precisely the same essential nature as where a man sells money for a horse, and promises to deliver, or “pay” the money at a future time. The horse and the money are the equivalents, that are exchanged for each other; that is, the right of property in each is exchanged for the right of property in the other. And the right of property in each equivalent passes at the same instant that the right of property in the other equivalent passes — else the contract is not reciprocal, mutual, or equal, and one of the parties receives no equivalent, or consideration, for the property he sells. And it is of no consequence when the delivery, either of the horse, or of the money, actually takes place — whether in a month or a year after the contract — or whether the delivery of both equivalents takes place at one and the same time, or not. The right of property in both equivalents passes at the time of the contract, whether the delivery of either or both takes place then or not. The delivery is a mere incident to the contract, and is of no importance in itself, as affecting the rights of property, which each of the parties has acquired by the contract. After the contract is made, the horse belongs to its purchaser, as much before it is delivered to him as afterwards; and, by the same rule, the money belongs to its purchaser as much before it is delivered, or “paid” to him, as afterward. The [100] same is true in regard to the sale of land. The right of property in the land passes at the time the contract is made, or the deed given, though the possession of the land itself be not delivered until a subsequent time. And, of consequence, the right of property in the equivalent, the consideration, the money, for which the land is sold, or exchanged, passes also at the time of the contract, though this equivalent, or money itself, be not delivered, or paid, until a subsequent time—else the contract would not be mutual, reciprocal, or equal, and the seller of the land would have parted with his right of property in the land, without receiving any consideration therefor—that is, without receiving any equivalent right of property in exchange. The delivery of money, then, on a note or contract made previously to the delivery, corresponds with a delivery of the possession of land, on a deed that has been previously given. The delivery has nothing to do with the right of property in either case—for that (the right of property) has previously passed, to wit, at the time the contract was entered into.

What we call “paying” money on a note, is the mere delivery of money that has been previously sold and paid for, and the right of property in which has previously passed to the purchaser. And it is solely because the money has been previously sold and paid for, and the right of property in it has passed to the purchaser, that the money itself is paid, or delivered. It is because the money has been previously bought by another, and therefore belongs to him, is owned by him, is, in fact, his property, that it is paid, or delivered to him. If it be not paid to him for this reason, or if it be not his property before it is delivered, the delivery is a gratuity; it is what he cannot claim as a right—for plainly a man cannot claim, on a contract, that property be delivered, or paid to him, as his, unless he has, by the contract, first acquired the ownership of it.

Contract rights to things, then, are actual bona fide rights of property in and to the things contracted for. No other intelligible meaning can be given of contract rights to things. A right to a mere promise, or a merely moral claim to the fulfilment of a promise, is nothing in law. The law, that governs men’s title to property, cannot take notice of any such uncertain, intangible, and speculative rights, as that of a merely moral claim to the fulfilment of a promise, if such a claim, (depending, as it may, upon a thousand contingencies not in their nature susceptible of proof,) can be called a right. The law, in regard to property, can take notice of nothing less delinite, certain, or tangible, than actual, proprietary rights, in actual, existing things. And unless a man acquire a right of property in a thing, by his contract, he acquires, legally speaking, no right at all by his contract. There is no other legal right to or in things, that he can acquire by contract. And this proprietary right is acquired—in all cases when it is acquired at all—the moment the contract is made; whether it be agreed that the delivery shall take place at that, or a future time. And this principle applies as well to money that is sold for a horse, or for land, and is agreed to be delivered, or paid, at a future time, as it does to land, or a horse, that is sold for money, and is agreed to be delivered at a future time.*

But perhaps it will be said that the words, “I promise,” which are contained in the note, are not contained in the bill of sale of a horse, or deed of land; and that these words indicate some essential difference in the nature of these different contracts.

But the words, “I promise,” are no essential part of the contract. Nor is a formal [101] promise in any case essential to the validity of a debt—that is, to the obligation to deliver money that has been sold and paid for. A man may make as many naked promises to pay money, as he pleases, and they are of no obligation in law. On the other hand, if a man have received value from another, with the understanding that it is not a gift, or that an equivalent is to be paid for it, the debt is obligatory—that is, the obligation to deliver the equivalent is binding—whether there be any formal promise to pay or not. This we see in the case of goods sold, and charged on account. And the obligation to deliver the equivalent consists in this—that it, (the equivalent or money,) has been bought and paid for, and now actually belongs to the creditor, or purchaser, as a matter of property. The promise, then, is a matter of mere form in any case, and of no importance to the validity of an obligation to deliver an equivalent, that has, by contract, (consent,) been exchanged for value that has been received. It may be important as evidence of the contract; but it is no part of the contract itself; that is, it, of itself, conveys no rights of property to the promisee, and no rights of any kind, to the equivalent promised, which he would not have without any formal promise.

But it may be said, (and this is the language of the lawyers,) that where a man has paid a consideration for a promise, there the promise is binding. But the truth is, (as has before been stated,) that a man never pays a consideration for a promise. He simply pays an equivalent, a price, or consideration, for the thing promised. And his right of property to the thing promised, of course, attaches at the time of the contract—at the time he pays the equivalent for it—or it can never attach at all. And then the promise to deliver, or pay it, (the thing promised,) is made solely as evidence that it (the thing promised) has been sold, and now belongs to the promisee as a matter of property.

A promissory note, then, that is given for money, is, in its essence, precisely like a bill of sale, that is given of a horse, and that contains an agreement to deliver the horse at a future time; or it is precisely like a deed that is given of land, and that embraces an agreement, or memorandum, that the possession of the land is to be given at a future time. The language of these three contracts are, in their legal purport, essentially the same. For instance. The promissory note runs thus.

“Thirty days from date I promise to pay A. B. one hundred dollars, for value received.” Signed C. D.

The bill of sale runs thus.

“A. B. bought of C. D. one horse, to be delivered in thirty days from date. Received payment.” Signed C. D.

The deed of land runs thus.

“In consideration of one hundred dollars, paid by A B, the receipt of which is hereby acknowledged, I hereby grant, sell, and convey to A B, one acre of land, possession to be delivered in thirty days from the date hereof.” Signed C. D.

What difference is there in these three contracts, so far as a conveyance of proprietary rights to the thing promised to be paid, or delivered, is concerned? Obviously none whatever. The bill of sale says, in substance, that the horse has been sold, and that the “payment,” the value, or the equivalent, has been “received;” and that the horse—which, having been thus sold and paid for, now of course belongs to the purchaser—is to be delivered to him in thirty days. The deed says that the land is sold, and its equivalent, or “consideration,” has been “paid” and “received;” and that the possession of the land—(which, having been thus sold and paid for, now of course belongs to the purchaser)—is to be given in thirty days. The note says that the “value”—that is, the equivalent, the “payment,” the “consideration,” for the money promised, has been “received,” (which implies that the money promised [102] has been sold, and now belongs to the purchaser,) and that the money is to be delivered, or paid, in thirty days.

What possible ground is there for saying that the right of property in the land, or in the horse, is conveyed by the contract expressed in the foregoing deed, or bill of sale, and that the right of property in the money, (or in an amount of value sufficient to purchase the money,) is not conveyed by the contract expressed in the note? None, none whatever.

Suppose A and B should make a contract with each other for the exchange—or, what is the same thing, for the mutual purchase and sale—of an hundred dollars in money, and a horse; that is, A should sell to B a horse for an hundred dollars in money, and B should sell to A an hundred dollars in money for a horse; and that both the money and the horse are to be delivered in thirty days from the time of the contract. The promise of one would be to “pay” the money in thirty days, and of the other to “deliver” the horse in thirty days. Yet do not these mutual promises, or undertakings, mean precisely the same thing? And is not the contract, on the part of each, precisely the same throughout, that it is on the part of the other? The horse is the equivalent of the money, and the money of the horse. The money is sold for the horse, as much as the horse is sold for the money. And the horse buys the money, as much as the money buys the horse. The bargain is reciprocal and equal in every respect. The mutual purchase and sale have been a mere exchange of the rights of property in certain values, or equivalents. Why, then, attach a different meaning to the word “pay,” when applied to the money, from what we attach to the word “deliver,” when applied to the horse? Why say that the right of property in the horse passes to the purchaser of the horse at the time of the contract, but that the right of property in the money, (or in an amount of value sufficient to purchase the money,) does not pass to the purchaser of the money until the delivery, thirty days afterwards? Clearly there is no reason for it. Evidently, the right of property in one equivalent passes at the same time that the right of property in the other equivalent passes, to wit, at the time of the contract, without any regard to the time of the delivery.

The real, equitable, bona fide right of property in each of these articles, (the horse and the money,) is exchanged by the contract, and therefore necessarily passes at the time of the contract. The possession merely of each remains with the seller for thirty days. All will agree that the right of property in the horse passes at the time of the contract, and that the possession merely remains with the seller during the thirty days. Why does not the right of property, in the hundred dollars, (or in an amount of value equivalent to the hundred dollars,) pass equally at the time of the contract, and the possession merely remain with the seller of the money for thirty days? The mutual purchase and sale of the horse and the money is a mere exchange of equivalents—a reciprocal and equal contract; and precisely the same rights of property, which pass to the purchaser of the horse, pass also to the purchaser of the money. Certainly, if the right of property in the horse, passes to the purchaser of the horse, by force of the contract, and at the time of the contract, the same right of property in the money passes also to the purchaser of the money, by force of the contract, and at the time of the contract. No proposition, in law, it seems to me, can be more self-evident than this.

Well, then, supposing this point to be established, that the right of property, in money that is promised—or rather in an amount of value existing, in some shape or other, in the hands of the debtor, sufficient to purchase the amount of money promised—passes to its purchaser at the time the contract is entered into, instead of the time of delivery—what follows?

From the time that property is sold, until it is delivered, the seller is the mere [103] bailee of the purchaser; and the property itself is at the risk of the purchaser, unless the seller be guilty of some fault, or culpable neglect, in regard to the custody or use of it.

For instance. In the case before supposed, where A sells to B a horse, for an hundred dollars, giving him a bill of sale thereof; and B sells to A an hundred dollars for the horse, giving him a promissory note therefor—the horse and money to be each delivered to their respective purchasers in thirty days from the time of the contract—A holds the custody of the horse, for those thirty days, as the bailee of B. And if the horse, during those thirty days, die, be stolen, or otherwise lost or injured, by any of the casualties to which horses are liable, without any fault, or culpable negligence, on the part of A, the loss falls upon B, the purchaser. All lawyers will agree that this is the law in regard to the horse. On the same principle, then, that A is the mere bailee of the horse for those thirty days, B is the mere bailee of the money, (or of an amount of value equivalent to the money,) during the same time; that is, this money or value remains in the hands of B, for his use, the real ownership being in A; and if the money, during the thirty days that it is to remain in the hands of B, for his use, be lost by fire, or theft, or any of the accidents, or any of the casualties of trade, to which money is liable, without any fault, or culpable negligence on the part of B, the loss falls upon A, the purchaser and real owner of the money. Clearly the same principles apply to both the articles, horse and money. The right of property in each has been exchanged for the right of property in the other; and the custody and use of each are to remain with its seller for thirty days. Each purchaser, of course, takes the same risk as the other, of the commodity he has purchased, while it remains in the hands of its seller.

If A, the seller of the horse, while the horse remains in his possession, after the sale, should use it in any mode different from what it was understood that he should use it; or should neglect to take such reasonable care, in the use and treatment of the horse, as good faith towards the owner of the horse required of him; and should thereby be the cause of injury or death to the horse, he (the seller) would be still liable for the value of the horse; not, however, on his contract, nor in an action of trover for the horse itself, but in an action on the case for damages, for the loss occasioned by his fault, as has before been explained. By the same rule, if B, the seller of the money, while it remained in his possession, should intentionally or negligently expose it to any other than the usual risks, to which it was understood that it was to be exposed, and thereby the money should be lost, then he (the seller of the money) would be still liable to the owner of it for the amount; not, however, on his contract, nor in an action of trover for the money itself, but in an action on the case for damages, for the loss occasioned by his fault.*

But if A, the seller of the horse, used the horse with such reasonable care, while it remained in his possession after the sale, as the law of bailments and good faith towards B; the owner of the horse, required of him, and the horse, nevertheless, came to injury or death, B, the purchaser and owner of the horse, must bear the loss. By the same rule, if B, the seller of the money, use such care in the preservation and management of it, while it remains in his possession after the sale, as the law of bailments and good faith towards A, the purchaser of the money, require of him, [104] and it (the money) should, nevertheless, be diminished or lost, A, the purchaser and real owner of the money, must bear the loss.

Now the only objection which the lawyers will raise to this doctrine, or to the application of the principles of bailee and bailor to the cases of debtor and creditor, is simply this: They will say that the specific property, to which the contract of debt (at the time it is entered into) attaches, may, before the time agreed on for the delivery, be exchanged, by the debtor, for other property; and that the same contract, which attached to the original property, cannot attach to the new property for which that is exchanged.

They get this false idea from looking solely at the general rule in regard to bailments, and keeping the exceptions and qualifications to the rule out of sight; when, in fact, these exceptions and qualifications cover nearly or quite as many cases, in actual life, as the rule itself. For instance: the general rule, in bailments, is, that the specific thing loaned or entrusted to the bailee, is to be restored to the bailor. The exceptions or qualifications are, where there is either an express or implied authority given to the bailee to exchange the property bailed for something else. Wherever there is either an express or implied authority given to the bailee to make such exchange, the same right of property which the bailor had in the original commodity bailed, attaches to the new commodity, or equivalent, for which that has been exchanged. In the cases of the various kinds of commercial agencies, where the agent is entrusted with commodities of one kind, to be exchanged by him for money, or other commodities, the right of property in the money or other commodities, received by the bailee as the equivalent of the commodities bailed, vests in the bailor on the instant of the exchange, and never becomes vested in the bailee. In many, perhaps in the larger number of cases of commercial agencies, the bailee receives express anthority for making the exchange; but not in all, nor nearly all. In many cases the authority is implied from collateral facts. And an implied authority is as good, in law, in any case whatever, as an express authority. All that is necessary, is, that there be valid grounds for the implication.

Considering, then, the relations of debtor and creditor to be those of bailee or bailor, are there any valid grounds for the implication of an authority, from the creditor to the debtor, to exchange, and traffic with, the property bailed, or loaned to the debtor?

There are several.

1. Inasmuch as the contract makes no designation of the particular form in which the value, to which the contract attaches, exists at the time the contract is entered into, it, of course, prescribes no particular form in which it must exist at any time, except at the time of delivery, when it must be in money. Since, then, there is, in the contract, no express or implied requirement that the debtor shall retain the value in any particular form, it impliedly allows him to use all reasonable discretion as to the form in which it will be expedient to keep it. And such a discretion allows him to convert it, by exchanges, into such different forms as a prudent and careful man might reasonably deem beneficial. Unless he were allowed this discretion, he would not be allowed to convert it from a perishable commodity into a durable one; nor from an unproductive into a productive one.

2. The capital loaned, is loaned to be used. This must always be presumed, because no other reasonable motive for the loan can be supposed. And if it be loaned to be used, and the form in which it is to be used is neither expressed nor implied by the contract, (as is the case in the instance of a promissory note,) it must be presumed that it was intended, by the creditor, that the debtor should use it in such manner as prudent men use their own capital. And as the habit of prudent men is to convert their own capital, by exchanges, or traffic, from one form into [105] another; and as, in many kinds of business, they are obliged to do so, to derive any profit from their capital, it must always be presumed, (in the absence of any express or implied prohibition,) that the debtor was to be allowed the same discretion in the management of the loan, and in converting it from one form into another, by traffic, as prudent men exercise in the management of their own capital.

3. The contract of debt never describes the particular form, in which the amount of value, to which the contract attaches, exists at the time the contract of bailment or debt is entered into; but only the form in which it is finally to be delivered, to wit, that of money. The contract, therefore, only implies that the amount of value exists, in some shape or other, in the hands of the debtor. If, therefore, the debtor have not money for the contract to attach to, at the time it is entered into, it must attach to value existing in some other form, else it would attach to nothing, and therefore be void. When, then, the contract does attach to value existing in some other form than money, it certainly implies an authority to exchange the commodities, (in which the value is invested,) for money, at least, if for nothing else; because the contract expressly prescribes that the value to which the contract attaches shall finally be delivered to the creditor in the shape of money, and the debtor, therefore, could not fulfil his contract, unless he could convert this value into money. And if the debtor is authorized to convert into money, the value to which the contract attaches, there is no reason, that I know of, why he has not all fair and reasonable discretion as to the mode of converting it into money; nor why he may not do it by means of half a dozen intermediate exchanges, if he thinks he can thus do it more advantageously.

4. If the value, to which the contract attaches, do exist in the shape of money at the time the contract is entered into, (as in the case where money itself is loaned, and the debtor has no other property, than the loan, for the contract to attach to,) then the contract certainly implies an authority to exchange that money for other commodities, and those commodities back into money; because the money is obviously loaned to be used; as is proved by the facts, that no other reasonable motive for the loan can be supposed, and that, in most cases, the debtor agrees to pay interest for its use, which he could not afford to do unless the money were to be made productive to him. Now money itself can neither be used, nor made productive, in any other way than by being exchanged for other commodities, or by being wrought into some other shape than coin. These facts, then, are enough to prove that it must have been the intention of the lender, or bailor, that the borrower, or bailee, should be at liberty to exchange the money loaned, for other commodities. And then the fact that the amount of value, promised to be paid to the creditor, is finally to be delivered to him in the shape of money, proves that the debtor has the consent of the creditor to convert these other commodities back into money again.

Whether, therefore, the contract of debt attach, at the time it is entered into, either to value existing in the shape of money, or to value existing in any other shape, (not designated in the contract,) the contract and the collateral facts imply an authority to the debtor to traffic with the property or value to which the contract attaches. And, if this be the fact, then the rights of the creditor, or bailor, follow this value, and cling to it, in every form that it may pass through, in the hands of the debtor, from the time the contract is made, until it is finally delivered, or repaid to him, (the creditor,) in the shape of money.

If it have now been shown that the true relation subsisting between debtor and creditor is merely the relation of bailee and bailor; that a debtor is merely one who has sold value to another, and retains the possession and use of it for a time after the sale; and that the legal obligation of the debtor to pay money, and the legal purport of his promise to pay money, for value that he has received, are merely an [106] obligation and promise to deliver money, which he has sold and received his pay for, and the right of property in which has already passed to the creditor, it follows that the creditor’s right, acquired by his contract, attaches to nothing except to such property as actually existed in the hands of the debtor for the contract to attach to, at the time the contract was made, and to such other value as may have become indistinguishably mixed with it, between that time and the time agreed upon for its delivery or payment. And from these several propositions it also follows, that at the time a debt becomes due, a creditor has no claims, by virtue of his contract, upon anything except what remains of the property that he purchased by his contract, and upon such other value or property as may have become indistinguishably mixed with it, (unless the debtor have been guilty of some fault or culpable neglect in the use or custody of it, whereby it has been diminished or lost.)

The utmost extent, therefore, of the creditor’s claim, (when the debtor has been guilty of no fault, neglect, or bad faith, in the custody or use of the property loaned to him,) is to the property actually existing in the hands of the debtor at the time the debt becomes due. He has a prima facie claim to the whole of this,* if it be necessary for the satisfaction of his debt. But if it be insufficient for the satisfaction of his debt—that is, if his purchase have been diminished in value or amount, while in the custody of the debtor, (without any fault or culpable neglect on the part of the debtor,)—he, the creditor, must bear the loss. The contract is extinct, fulfilled, on the delivery of whatever remains of the property originally bailed to the debator. And if the whole of the value bailed have been lost, without the fault of the debtor, the loss falls on the creditor.

There is no escape from this conclusion but by denying that the contract attached to anything at the time it was made. And such a denial, instead of proving that the debt was obligatory beyond the debtor’s means of payment, would only be equivalent to a denial that it ever had any legal validity at all. In order to maintain the validity of the contract, we must maintain that it attached to something—that is, that it conveyed to the creditor a proprietory right to some value existing in the hands of the debtor at the time the contract was entered into. And if the contract had any validity—that is, if it attached to anything—at the time it was entered into, its validity lived only in the life of the value, or property to which it attached; and when that value expired, or became extinct, the contract, or, in other words, all the rights which the creditor acquired by virtue of his contract, necessarily expired with it.

Taking it for granted that it has now been shown that a debtor is, in law, the mere bailee of his creditor, it may be important to repeat the statement of the principle, by which this bailment operates as a lien upon the whole property of the debtor, even though his property be many times greater than the debt. The principle is this. Suppose the debt to be one hundred dollars; and the whole amount of property, in the hands of the debtor, to be one thousand dollars. The contract attaches to and binds so much value, or property, in the hands of the debtor, as will bring one hundred dollars. But the contract does not designate the particular form, in which the value, or property, to which it attaches, exists. It, therefore, attaches to it in every form, as it exists in the hands of the debtor; simply because it cannot be shown that it attaches to that which exists in one form, any more than to that which exists in another form. Any portion, therefore, of the debtor’s property, or the whole of it, if it should be necessary, is liable to be taken for the satisfaction of the debt; and [107] this liability of the whole makes the debt a lien upon the whole. It is on this principle that a mortgage on land, for but a tenth part of the actual value of the land, is a lien upon the whole.

A promissory note, or other personal debt, where there is no designation of the particular articles of property, to which the contract attaches, is, in fact, a sale of all the property the debtor has in his hands, subject to his right of cancelling the sale by paying the amount of the debt in money, just as a mortgage is a sale of the land mortgaged, subject to the right of the debtor to cancel the sale by paying in money the amount for which the mortgage is given.

In other words, a contract of debt, without any designation of the specific property to which the contract attaches, is a contract by which the debtor pledges his whole property for the delivery, or payment of the amount sold out of it to the creditor, viz., the amount of the debt. Such a pledge gives the creditor a special, or conditional ownership of the whole property pledged; and the debtor thenceforth holds the whole property as the bailee of that portion of its value, which actually belongs to the creditor, and is merged in the value of his, (the debtor’s) whole property.

If the point be now established, that a debt is a lien upon the whole property of the debtor; and if the debtor is the mere bailee of the amount of value sold and belonging to the creditor, it becomes necessary to show on what grounds it is, that the debtor has the right to appropriate, for his subsistence, any portion of the property on which his creditor holds a lien. Where a debtor has mortgaged land to his creditor, he, (the debtor,) has no right to sell any portion of that land, not even to provide himself with food. Why is it different in the case of the lien created by a personal debt, upon the whole property of the debtor? The reason is, that there is an implied permission, given by the creditor to the debtor, to appropriate enough of the property in his hands for his subsistence—subject to the condition that the debtor shall apply his care and labor to the increase and preservation of that property. This permission is to be implied from the following facts:

1. It is a self-evident fact that the debtor and his family must live; and being a self-evident fact, it must have been taken for granted by the creditor as a part of the contract—because all self-evident facts having any bearing on the contracts, are taken for granted in all lawful contracts.

2. If the debtor and his family must live, it is self-evident that they must derive their subsistence, either by selling their labor for wages, (independently of any property in their hands;) or by bestowing their care and labor upon the property in their hands, and taking their subsistence out of it, and its proceeds.

Now it is evident that the contract does not contemplate that the debtor is to sell his labor for wages to the neglect or disuse of the property loaned to him; for the only reasonable motive that can be supposed for the loan, is, that the debtor may use the capital loaned, that is, that he may bestow his labor upon it. And if he bestow his labor upon it, it follows that he must meanwhile take his subsistence out of it—because, while bestowing his labor upon it, he cannot be selling his labor for wages, and of consequence cannot derive his subsistence in any other way than from the property in his hands. And as the creditor’s lien extends to all the property in his hands, it follows that the debtor must take his subsistence out of that to which the lien attaches—simply because there is no other property in his hands for him to take it out of.

In all this there is a strong analogy to the case of a lien on land—for there the debtor takes the produce of the land for his subsistence; which is hardly distinguishable in fact, and is not distinguishable in principle, from taking the land itself—inasmuch as the crops exhaust the fertility, and consume the value of the land.

3. The contract evidently supposes that the debtor, while laboring, is to have enough of the fruit of his labor for his subsistence, (because a man cannot labor without a subsistence;) that his labor is to be bestowed upon the capital on which the creditor has a lien; and, of course, that the value of his labor is to become incorporated indistinguishably with that of the capital. It follows that it must have been understood, both by debtor and creditor, as a self-evident matter, that the debtor, while laboring, should appropriate enough of the property in his hands for his subsistence, because without his subsistence, he could not bestow his labor upon the capital.

4. The nature of the contract proves that the creditor is interested in the labor of the debtor, because, at a given time, he (the creditor) is to receive the capital loaned, with increase. This, of course, the debtor could not afford, nor the creditor expect, unless the debtor were to bestow his labor upon the capital. And if he bestow his labor upon the capital, he must, of necessity, have his subsistence meanwhile. And as his contract is a lien upon everything in his hands, it must of necessity have been understood that he should appropriate his subsistence out of the property that is subject to the lien.

[108]

In short, the contract proceeds throughout upon the supposition that the subsistence of the laborer, while laboring on capital, must be provided for out of the capital on which he labors. And this supposition is not merely a reasonable, but it is a necessary one—for it is obvious that his subsistence must be thus provided for, whether he hold the relation of debtor to the capitalist, or that of a laborer for wages. In either case, his subsistence, while laboring, must be a tax upon the capital on which he labors.

In all this there is nothing that authorizes waste or prodigality on the part of the debtor; or that authorizes anything except what is consistent with such economy and frugality as good faith towards the creditor requires. But this point has been sufficiently explained in the preceding chapter.

Halting at this point, and looking back upon the ground we have gone over, does not that ground present a more rational view of the nature of debt, than any that has ever been practised upon by courts of law? Is it not the only view that can make the contract of debt consistent, either with morality, or with the ideu that creditors acquire any tangible, legal rights, to actual things, by virtue of that contract?

This view of the contract of debt places the debtor and creditor, to a certain extent, in the relation of partners. The creditor furnishes capital, the debtor labor. The separate values of this capital and labor become indistinguishably mixed—that is, the labor bestowed upon the capital adds to its value, by converting it into new forms—as, for instance, by converting leather into shoes. The debtor, while thus bestowing his labor upon the capital, receives his subsistence out of the mass; in other words, his subsistence, while laboring, is the first charge (as in all cases it necessarily must be) upon the combined capital and labor. The creditor holds the next lien upon this combined capital and labor, for the amount of his investment, and his stipulated profits. The debtor is entitled to the residue, if any there be, as the reward of his labor. During the partnership, the creditor holds the debtor to the observance of economy and good faith. Under these circumstances, both parties take the natural risks of the business. The creditor risks his capital, the debtor his labor.*

All this is obviously a joint operation, a bona fide partnership. The creditor, as well as the debtor, is to derive a profit from it. The prospect of profit is the creditor’s only motive for entering into the contract. The debtor, therefore, becomes a bailee, not merely for the benefit of himself, but also for the benefit of the creditor. What is there in morality, or in the legal rights of the parties to the capital and labor thus combined, that requires the debtor to take the risk, both of his own labor, and of the creditor’s capital, beyond the due exercise of his skill, industry, care, and good faith in the preservation and management of the latter?

The creditor adopts this mode of employing his capital, as being the most advantageous to himself. He has more capital than his own labor can advantageously employ. He must, therefore, in order to make his capital productive, either loan it to others, or employ the labor of others upon it, by hiring them, and paying them wages. He considers that, by loaning it, and offering the debtor an inducement to the exercise of his best skill, by a contract that gives to the debtor all the proceeds of the joint labor and capital, except a stipulated amount, (called interest,) he will better stimulate the laborer’s industry, skill, and care, and thus reap a better profit to himself, than he will if he hire the man as a laborer for wages. And this is the reason why he loans his capital, instead of hiring the labor necessary to employ it. But there is nothing in all this, that morally or legally entitles his capital—while it is in the hands to which he has thus, with a view to his own profit, chosen temporarily to entrust it—to an insurance against the necessary risks to which capital is always liable. Nor is there anything in all this, that morally or legally entitles him to make this bailee, and partner, his slave for life, in case of any misfortune to the partnership business, by which both his capital and the debtor’s labor should be lost. Nor is there in all this, anything that gives him any tangible, legal, proprietary rights, to property that his partner and bailee may earn after the partnership, or bailment, shall have terminated.

Endnotes

*

One of the greatest—probably the greatest—of all the evils resulting from the existing system of privileged corporations for banking purposes, is that these incorporations amass or bring together, and place under the control of a single directory, the loanable capital that was previously scattered over the country, in small amounts, in the hands of a large number of separate owners. If this capital had been suffered to remain thus scattered, it would have been loaned by the separate owners, in small sums, to a large number of persons; each of whom would thus have been supplied with capital sufficient to employ his own hands upon, with the means of controlling his own labor, and thereby of securing to himself all the fruits of his labor, except what he should pay as interest. But when all this scattered capital is collected into one heap, and placed under the control of a single directory, it is usually loaned in large sums, to a few individuals—generally to the directors themselves and a few other favorites. It probably is not loaned to one tenth, one twentieth, or one fiftieth as many different persons, as it would have been if it had been suffered to remain in its original state, and had been loaned by its separate owners. Individuals, instead of borrowing one, two, three, or five hundred dollars to employ their own hands upon, as would be the case but for these incorporations of capital, now borrow fives, tens, and hundreds of thousands of dollars, upon which to employ the labor of others. This process of concentration, monopoly, and incorporation, by means of which one man, a director, or a favorite of a bank, is enabled to borrow capital enough to employ the labor of ten, twenty, or an hundred men, of course deprives ten, twenty, or an hundred other men of the ability to borrow even capital enough to employ their own hands upon. Of consequence it compels them to sell their labor to him who has monopolized the capital. And they must sell their labor to him at a price that will give him a profit—generally a large profit. That is, they must sell it for much less than the amount of wealth it produces. In this way ten, twenty, or an hundred men are literally robbed of an important portion of the fruits of their labor, solely that a single monopolist may be gorged with wealth. It is thus that the legislation, which creates these large incorporations of privileged bankers, operates to plunder the many of the fruits of their labor, and pamper the few with the spoils.

*

Mutual benefit is the only foundation for the morality of contracts; or, at least, to be moral, a contract should contemplate no injury to either party.

*

If the capitalist were to hire his labor, instead of the laborer hiring the capital, the subsistence of the laborer would still be as much a charge upon the capital, as it is when the laborer hires the capital, and makes his own living the first charge upon the joint proceeds of the capital and labor.

*

There is, of course, some sympathy between all men, for a common nature compels it; but it is not quick or strong between opposite classes, or strangers, as it is between similar classes and acquaintances.

*

The judiciary probably would assert this principle, in this country, (and under a system of universal suffrage they would be sustained in doing it,) were it not that, by our constitutions, they are placed, in a great measure, beyond the reach of either the approbation or censure of the people at large, and made dependent upon, and the mere creatures of, the very departments, whose usurpations they are, in theory, designed to restrain. They receive their offices and salaries from, and are made amenable by impeachment solely to the other departments; and, as might be expected, they servilely and corruptly sustain all their arbitrary measures, in defiance of all the moral and constitutional obligations they are really under in the premises.

Although the natural rights of all men to acquire, possess, and dispose of property—which, of course, involves the right to make all the contracts, naturally lawful, by which property may be acquired or disposed of—is so clearly announced in most of our constitutions; although, as a principle of natural law, it is too manifest to be doubted, or denied; although it is a right, in its nature vital to the well being, and even to the self-preservation of every man; and although all our statute Books abound with enactments, infringing, denying, or withholding this right, on the part of a greater or less portion of the people; it is nevertheless hardly probable that a single one of all these thousand enactments has ever yet encountered the veto of the judiciary. What a sickening proof this, of the degradation, corruption, and servility of that branch of the government which holds all our rights in its hands.

The judiciary should be made entirely independent of the executive and legislative branches of the government. They should neither receive their appointments nor salaries from them; nor be amenable to them by impeachment. We might then hope that they would act as a check upon their usurpations, instead of acting, as they generally do now, as mere pimps and panders to them, lending the covering of their sanction to hide the crimes of the legislatures from the eyes of the victims. Judges should be elected by the people; for short terms; their salaries should be fixed by the constitutions; and they should be amenable, by impeachment, to independent tribunals specially instituted for the purpose. They should also be separately chosen, at separate periods, and by separate districts of the people—that no party, however powerful in the nation, or in the state, might be able to choose the whole of the judiciary.

The judiciary is altogether the most important department of the government; or rather would be so, if it were properly constituted. Indeed, if judges were but honest and capable, there would be very little for the legislative department to do, in regard to property, except to provide the means for carrying the decisions of the judiciary into effect.

*

Jones on Bailments, p. 133.

*

A promissory note has been defined to be “a written promise to pay money absolutely, and at all events.” (Bailey on Bills, p. 1. Kent’s Commentaries, Lect. 41.) And courts now act on that theory, and on the theory that such a contract is binding. But if such were the legal meaning of the contract, it would plainly be an immoral, absurd, and, therefore, void contract—of no legal obligation whatever.

†

A bailment is where one person is temporarily intrusted with the property of another, either for safe keeping, as in the case of a special deposit; or to be used, as in the case of a horse lent for a journey; or to be sold, as in the case of goods intrusted to a commission merchant; or for some other purpose; under an agreement, express or implied, that he will comply with the conditions on which it is intrusted to him, and finally restore it to the owner, (or its equivalent, if it be sold,) or otherwise dispose of it agreeably to the owner’s directions. The owner is called the bailor—the person intrusted, the bailee. If the property be lost or injured in the hands of the bailee, without any fault, or culpable neglect on his part, the loss falls on the owner.

*

The value sold by the debtor to the creditor may often be the same “value,” which he has just “received” of the creditor. It must be the same, where the debtor has no other property. But where he has other property, the value that he sells to the creditor is merged in the value of his whole property, and continues so until it is finally separated from it to be delivered to the creditor.

†

On this point more hereafter.

*

To say that value entrusted to a debtor was lost through his incapacity for the judicious management of it, (as it often really is, instead of by accident,) makes the case no stronger in favor of the perpetual liability of the debtor; because a want of capacity is nothing for which the debtor is culpable, or for which he can rightfully be held liable. The creditor, therefore, must judge for himself, and must always be presumed to have judged for himself, and to have taken the risk of the debtor’s capacity, or incapacity, before he entrusted his property to him. All he could expect, or have a right to require of the debtor, was the faithful exercise of whatever capacity he possessed. It is neither policy, equity, nor law, that a man shall be protected against the legitimate consequences of his own negligence, or be permitted to throw them even upon another person equally negligent; much less upon an innocent person. The law requires diligence of all. This principle, therefore, forbids that a creditor, who has been so negligent as to entrust his property to an incompetent debtor, should hold the debtor responsible for its loss, when the latter has faithfully exercised his best ability for its preservation.

†

I shall hereafter have occasion to speak of the exceptions to this rule, and to show in what cases a moral obligation to pay may remain, after the legal one has expired.

*

This point will be more fully established in the next chapter.

†

That is, each debt becomes a lien in the order in which it is contracted, if the debtor practise no fraud. But if a debtor should fraudulently conceal a former debt, when contracting a succeeding one, the first creditor might thereby lose his prior lien, and the second creditor become entitled to it, in preference to him. The principle, on which the debtor’s fraud would have this effect against the rights of his first creditor is this. Possession is prima facie evidence of property. There is no exception to this rule, unless in cases of real estate, where legislation has substituted public records, for possession, as evidence of property. There being no exception to the rule as to personal property, all persons are bound to know it, and govern themselves accordingly. If, therefore, A put his personal property into the hands of B—no matter on what private agreement between themselves, whether on the bailment of debt, or any other bailment—he thereby virtually and legally asserts, to the world, that B is the owner of it; and he cannot retract that assertion to the injury of any third person, who has been deceived by it, or who has purchased, without notice of the contrary, and actually paid value for the property. The sale, will, therefore, be a valid one to the purchaser, and the original owner can look only to his bailce for the damages.

This principle makes it necessary that the owner of property should take upon himself the risk (as he evidently ought) of any dishonest sales of it by those, to whom he voluntarily intrusts it, and whom he holds out to the world as the owners, instead of enabling him to throw this risk upon innocent and ignorant purchasers, who proceed according to law in presuming, (where they are not informed, or put upon inquiry to the contrary,) that the one having the property in his possession, is the true owner of it.

On this principle, a second debt, (which involves a safe of value in the debtor’s hands,) contracted by concealing from the creditor the existence of a former debt, might be valid against the prior creditor, and operate as a prior lien on the debtor’s property.

But there would be little or no danger of such transactions; because, first, the habit of obtaining credit is so general, as to serve as reasonable notice to put creditors on inquiry; and every creditor would therefore be bound either to take the risk of any prior debts, or to make special inquiry of his debtor, before giving him credit, whether he were already in debt? If his debtor were to answer falsely, and thereby induce him to give him credit on the idea that his (the debtor’s) property was free from any prior lien, the act would be one of swindling towards the prior creditor, and would be properly punishable as swindling, especially if the prior creditor should suffer any actual harm from the second lien; and perhaps it would be the same if he did not suffer any. The case would be parallel to that of a man, who, after having given one mortgage of land, should afterwards, before that mortgage was recorded, give another mortgage to another person, who had no knowledge of the first mortgage; and should thereby deprive the first mortgagee of his prior lien.

Debtors would have little or no temptation to practise such frauds; for it would not only make them liable as swindlers, but also liable in damages, where any actual loss should be suffered by the first creditor; and for these damages their future earnings would be liable forever, as will hereafter be shown, and not merely their present property, as in case of debt. If, therefore, a debtor should be unable to obtain a second credit on account of the lien of a prior one on his property, his true course would be to do the best he could with the means in his hands, until his present debt should come to maturity, then pay it, or pay to the extent of his ability, and thus cancel it. He would then be free to contract a new one.

It perhaps might be expedient for debtors, when contracting second debts, to take written acknowledgments from their creditors that their former debts (naming them) were disclosed to them. This would put it out of the power of creditors to impute fraud to their debtors; and would also prevent any collision between creditors as to the order of their respective rights. Probably, however, this precaution would be unnecessary, for the burden of proof would always be upon the second creditor to show the fraudulent concealment, and not upon the debtor to prove his disclosure, or that no disclosure was asked. The second creditor’s own testimony would be inadmissible to give himself a prior lien; and, uncorroborated, it would be suspicious testimony even in a criminal prosecution for swindling. The probability, therefore, is, that for want of proof of any fraud, if for no other reason, there would be no collision among creditors, as to the order of their respective liens, unless second creditors, at the time of giving credit, should take written declarations from their debtors that there were no prior liens on their property. And debtors would not, of course, dare to put false declarations of that kind in writing, because they would thereby convict themselves of swindling. So that there would be no collision among creditors on this ground unless in some few cases, where debtors might be such open villains as to put their fraudulent representations in writing.

The principle stated in this note would be no obstacle to a debtor’s selling or exchanging any property in his hands for an equivalent value of a different kind, provided he should act according to his best judgment, and with no intent to lessen the value of his creditor’s security; because the lien of his creditor is not a special lien on specific articles of property, (none such being designated by the contract,) but upon the amount of value that inheres in all the property in his hands—which value he has an implied authority from the creditor to convert into different forms, by labor and traffic, at his discretion, (as will be more fully shown in the next chapter.) And when he sells an article for money, or makes an exchange of it for another commodity, the exchange is a mere conversion of the same value into a different form. The creditor’s right attaches to it, or adheres to it, in its new form, in the same manner, and to the same extent, that it did in its original one.

*

Ogden vs. Saunders, 12 Wheaton, p. 340.

*

Suppose A sells to B, and receives his pay for, an hundred bushels of grain, out of a certain mass consisting of a thousand bushels; and A promises that he will separate the hundred bushels from the mass in which they are merged, and deliver them to B in one month from the time of the contract. In this case the right of property in the hundred bushels, passes to B, the purchaser, at the time of the contract—and if the mass should be destroyed before the delivery, (without any fault on the part of A) the loss of the hundred bushels would fall upon B, the purchaser and owner of them. And this is but a parallel to the case of debt, where A should sell to B, and receive his pay for, an hundred dollars’ worth of yalue out of his (A’s) whole estate; and should promise that this hundred dollars’ worth of value should be separated from the mass of his estate, (in which it is merged,) converted into money, and delivered to B, the purchaser, (or creditor,) in one month from the time of the contract. In this case, as in the case of the grain, the right of property in the hundred dollars’ worth of value, would pass to B, the purchaser of it, at the time of the contract; and if the whole estate of A, in which B’s hundred dollars’ worth of value was merged, should then be lost or destroyed prior to the delivery, without any fault or culpable neglect on the part of A, (the bailee, or debtor,) the loss of the hundred dollars’ worth of value would fall upon B, the purchaser and owner of it.

*

The delivery may sometimes be important as evidence of the right of property, when there is no other evidence of it. But it is of no importance to the right itself, if the right can be proved by any other testimony. And a promise to deliver property, and an acknowledgment that the property has been paid for, (as in the case of a promissory note,) are as good evidence that the right of property has passed to the promisee, as is the delivery itself.

*

The validity of this assent, for the conveyance of property, results from the facts that men have an inherent right to dispose of their property; that they can dispose of it only by the consent, or assent of their minds, or wills to do so; and that, consequently, whenever this consent, or assent, takes place, it actually passes the right of property, (in the thing to which it applies,) to the person to whom the proprietor designs it to go. It is truo the law requires some outward manifestation of this assent—such as a delivery of the thing sold, or a written or oral contract as proof of it—before it (the law) will declare that the right of property has actually passed to another; but this is required, not because the outward manifestation is of any intrinsic importance, but because we can have no evidence of a man’s mental sensations except from some outward exhibition of them.

*

Although a deed of land, or a bill of sale of a horse may contain an agreement that the possession shall remain in the seller for a time; and although such an agreement would imply that the horse or farm was left in his possession to be used by him, still it would not, as in the case of a note, (or bill of sale of dollars,) imply that the horse or farm might, in the mean time, be converted into any other shape for use, or be exchanged for any other commodity; because the horse and farm, unlike the money, are productive and useful in their present shape.

*

It will be understood, when I say that the right of property in the “money” passes to the purchaser at the time it is sold, or contracted for, (though not delivered until a future time,) that I mean, not the right of property in the identical pieces of money that are to be delivered, or paid, but (for the reasons heretofore given) the right of property in an amount of value, existing in some shape or other, in the debtor’s hands, equivalent to the money, and which is to be converted into money in time for the delivery.

*

This distinction between the liability of a debtor, on his contract, for the money itself, and his liability, for the same amount, in an action on the case for damage, where the loss has been occasioned by his fault or negligence, is an important one in several respects, as regards both debtors and creditors, (as has heretofore been shown,) notwithstanding the amount recoverable in each case should be the same.

*

This prima facie claim may be defeated as to any particular property in the hands of the debtor, clearly distinguishable from the bulk of his property, and which the debtor can show to have been either loaned or given to him since his debt was created.

*

That is, he risks his labor, all over and above his necessary subsistence while laboring; which is no more than the capitalist would be obliged to risk if he hired his labor; and which, therefore, is not entitled to be considered as a risk created by the loan.

T.8 Who caused the Reduction of Postage? Ought he to be Paid? (1850).↩

Title

[8.] Who caused the Reduction of Postage? Ought he to be Paid? (Boston: Wright and Hasty's Press, 1850).

- also online Shorter Works, vol. 1: </titles/2290#lf1531-01_head_034>

Text

TO THE PUBLIC.

The reduction of postage, which was made in 1845, was forced upon Congress, against the determined opposition of that body, by the establishment of private mails, and such an exposure of the unconstitutionality of the laws prohibiting private mails, as satisfied Congress of their inability to suppress the competition, and preserve the revenues of the Post-Office Department, otherwise than by the reduction of the government postage. And they accordingly reduced the postage to a point that made competition unprofitable, without even bringing the constitutionality of their prohibitory laws to the test of a decision by the Supreme Court.

The further reduction, made by the law of 1851, is but a natural consequence of the former one—it being proved, by the surplus revenue that accrued under the act of 1845, that a low rate of postage will pay the expenses of the Department.

The first reduction was forced; the second was the result of the surplus revenue that accumulated under that forced reduction.

Whoever, therefore, caused the first reduction, is the real author also of the second—and thus of the whole reduction—that is, from the original rates of 6¼, 10, 12½, 18¾, and 25 cents, for each piece of paper, (less than four,) to an uniform rate of three cents, the half ounce, for all distances, within the United States, if prepaid, or five if not prepaid.

The law of 1851 also provides that so soon as the revenue of the post office Department shall exceed the expenditures by [6] five per cent in a year, the postage shall be reduced to two cents the half ounce.

The laws both of 1845 and 1851 also make large reductions in the postage of newpapers, circulars, periodicals, and pamphlets.

The subscribers present to the public the following “Letter” and “Statement” of Lysander Spooner—together with a copy of his argument of the “Unconstitutionality of the Laws of Congress Prohibiting Private Mails,”—as proof that Mr. Spooner has been the principal, and by far the most efficient agent in effecting the reduction of postage.

Our object, in presenting this evidence, is to submit to the public the question, whether the accomplishment of so great a service, by Mr. Spooner, does not demand some compensation at the hands of those who are enjoying the fruits of his exertions?

The English people, by voluntary contribution, gave to Rowland Hill, a munificent testimonial of their gratitude for his services in reducing the postage. The English government also honorably rewarded him. Shall Mr. Spooner go entirely unrewarded?

Mr. Spooner’s claims to a compensation, are enhanced by the fact that, in his contest with the government in 1844, (which caused the first reduction of postage,) he became involved in debts which he has hitherto been unable to discharge. We cannot believe the public will be content to enjoy the fruits of such a service, and make no remuneration for the exertions and losses by which it was accomplished.

It will be seen by the “Letter” and “Statement” of Mr. Spooner, and the evidence he produces in support of them, that he published his argument in January 1844, and established his private mails in the same month—avowing, in his public [7] advertisements, his “intention thoroughly to agitate the question, and test the constitutional right of free competition in the business of carrying letters,” if he should be sustained in his enterprise by the patronage of the public. This patronage was not extended to him, in a sufficient degree to meet the expenses of his mails, and of the conflict which the government carried on against him. And in six or seven months he was obliged to surrender the business—but not until the principle which he had established by argument, had become so far fixed in the public mind as to make the suppression of the private mails impossible, otherwise than by a reduction of the postage.

The merit of Mr. Spooner consists in his being the first to establish by argument the unconstitutionality of the laws prohibiting private mails, and the first to establish mails on that principle, and challenge the government to test the question—whereby a reduction of the postage was coerced.

That Mr. Spooner’s argument, and the establishment of his mails, had the merit and the efficacy we have ascribed to them, we subjoin the following opinions expressed by the press, and by distinguished legal gentlemen:

The New York Express (January 13, 1844,) says of the argument, “The writer has certainly made out a very strong case.”

January’ 30, 1844, the same paper called it “A very able argument,’ and said “We do not see how it can be got over.”

February 7th, 1844, the same paper said, “Mr. Spooner has discussed that great question with surpassing ability.”

The New York Tribune (January 18, 1844,) said, “This pamphlet deserves attention. It is certainly an able statement of one side of the subject, and the people may find after all that the Postmaster has stretched a point in the constitution.”

[8]

The New York Evening Post (January 29, 1844,) called it “A very able pamphlet,” and said, “We hold with Mr. Spooner in this matter.”

The New York Journal of Commerce (February 29, 1844,) said, “It has been concurred in by the general voice of the legal gentlemen who have examined it.”

Hon. Rufus Choate certifies that he “had occasion to examine it carefully,” and that “the author’s leading and important position, that all laws prohibiting private mails were unconstitutional, was maintained with a force and cogency, calculated, under the obvious limitations applicable to it, to convince every unbiassed judgment.”

Hon. Franklin Dexter certifies that he “considers it as quite unanswerable;” that “as U. S. District Attorney,” he “had occasion to consider it carefully, and could make no answer to it satisfactory to himself.”

Hon. Simon Greenleaf, (late Law Professor in the Cambridge Law School,) certifies that he has read it, and “should think it a very difficult work to refute it.”

Hon. Benjamin F. Butler, (late U. S. Attorney General,) although, out of deference to the practice of the government, he forbears to say the laws prohibiting private mails are unconstitutional, yet says that Mr. Spooner’s “argument goes very far to show that no power to pass any such laws has been delegated to the Congress of the United States. If the question were a new one, I should expect the courts to repudiate the claim of the Federal Government to any such authority.”

Judge Story, in June 1844, (five months after the publication of Mr. Spooner’s argument,) on the trial of a case for the violation of the Post-office laws, said, (as reported in the Boston Daily Advertiser of June 18,) that “there were many [9] difficulties in maintaining in the United States any exclusive right to establish post-offices and post roads.”

Senator (now Judge) Woodbury, February 6, 1845, (about one year after the publication of Mr. Spooner’s pamphlet,) said in the Senate of the U. S.: “Were the question a new one at this moment, the whole restrictions on private enterprise and private competition in carrying letters themselves, could not stand an hour.”

Senator Simmons said February 6, 1845, in the Senate of the U. S.. “The power to establish a mail was not given to enable the government to make exorbitant charges for service, much less to enable it to enforce a compliance with them, if made.”

Hon. Mr. Dana, M. C. of New York, said in the U. S. House of Representatives, February 25, 1845. “The validity of that (the government) monopoly is not beyond all doubt. Stake not the Department, under present circumstances, upon the hazard of a law suit. Prejudice is too strong against you. Success is almost impossible; victory is useless; defeat ruin.”

We think these opinions of Messrs Story, Woodbury, Simmons, and Dana, are fairly to be attributed to Mr. Spooner’s argument—inasmuch as such opinions, (so far as we know,) had never before been heard from the Bench, or in Congress.

We think also, that the reduction of the government rates, without bringing the constitutional question before the Supreme Court, is a virtual admission, on the part of Congress themselves, that they did not feel it safe to subject the constitutionality of their prohibitory laws to the investigation of that tribunal; otherwise they would not have succumbed to such a defiance of their authority, without bringing the question to a [10] judicial decision, as the Postmaster General was invited by Mr. Spooner to do.

Mr. Spooner’s “Statement,” which follows this card, will be found to contain numerous extracts from debates in Congress, and from reports of the Post-office Committees, all showing conclusively that the necessity of getting rid of the competition of the private mails, and the acknowledged impossibility of doing it otherwise than by a reduction of postage, were the motives which induced Congress to make the reduction in 1845.

It is on these grounds that we think that Mr. Spooner’s argument, and the establishment of his private mails, (with other private mails, which grew up, as we think, mainly under the protection of his argument and example,) were the immediate and most efficient causes of that reduction.

Hon. Simon Greenleaf certifies that “the reduction of postage (in 1845) seems justly attributable to his (Mr. Spooner’s) exertions.”

Judge Kent, of New York, certifies that “one thing is certainly evident, that Mr. Spooner has displayed talent and energy in obtaining a reduction of the charges of postage, and deserves the gratitude of all of us for the obtaining of a great public benefit.”

Hon. Benjamin F. Butler says, “That your (Mr. Spooner’s) efforts have largely contributed to awaken attention to this great interest, no man can deny. And whatever I may have thought of them, before my recent perusal of your pamphlet, (published by you in 1844,) I am now satisfied that you were induced to engage in those efforts under a deep conviction of the unconstitutionality of the laws with which they conflicted, and that you may, therefore, be regarded as having rendered, in this matter, good service to the country.”

[11]

Hon. Robert Rantoul, Jr., says, “I think Mr. Spooner entitled to the gratitude of his country for his able and efficient labors to illustrate the constitution, and to facilitate correspondence.”

Hon. William H. Seward also says, in reference to the same services, “I am quite satisfied that Mr. Spooner desrves well of the country, and of the age.”

For further evidence of the efficiency of Mr. Spooner’s efforts in effecting the reduction that was made in 1845, we must refer to his “Letter” and “Statement,” which follow this card; and especially to the extracts he has given from the report of the Postmaster General, the reports of Committees, and the Debates in Congress. And we take leave to repeat that the reduction of 1851 is a legitimate result of the reduction of 1845, and is therefore attributable also to Mr. Spooner’s exertions.

It is due to Mr. Spooner to say that he was not the first to suggest this contribution. At the time the new postage law went into operation, in 1845, it was proposed to him that the public be called upon to remunerate him for his services in bringing it about; and he was requested to prepare such a statement of the facts as was necessary to be laid before the public for that purpose. He then declined, from motives of delicacy, to furnish the statement, and the matter was necessarily dropped. It has since been proposed to him again; and a sense of duty to himself and his creditors, has induced him to furnish the “Statement” which follows.

From the mercantile, manufacturing, banking, and professional community, who have already realized large sums from the reduction of 1845, and who will realize similar profits from the one of 1851, we are confident something liberal may be expected. We trust also that other persons, whose savings have been, [12] and will be less, will yet feel it a pleasure and a duty to contribute such small sums, (one dollar each, for instance,) as, if numerous as we think they ought to be, will, in the aggregate, make up a testimonial that will honorably mark the public gratitude for so great a service as the reduction of the postage.

As it will necessarily be impossible for agents to visit all those, who may be disposed to contribute, we invite each person, without waiting for further solicitation, to send his contribution, by mail, to “Lysander Spooner, Boston, Mass.”

In the cities we invite the merchants to move in the matter, by sending their contributions individually, or by acting collectively, as may seem to them proper.

In each village, where many will be disposed to contribute sums too small to be sent singly by mail, will not some public spirited individual take it upon himself to act as a collector of contributions, and forward them as above directed?

To ensure the success of the objects in view, it is important that each one should feel the obligation to do his own part, and not omit it, in the confidence that others will be more just or liberal than himself.

P. S. Will not editors, whose interests have been largely promoted by the reduction of postage, give the foregoing card an insertion, with such comments as the facts given in the following “Letter” and “Statement” may seem to them to justify?

[13]

Lysander Spooner

Spooner, Lysander

1851

Boston,

M. D. Phillips

Phillips, M. D.

LETTER.

Boston,

1851

.

M. D. PHILLIPS, Esq.,

Dear Sir:—

You were pleased to suggest to me, as have many others, that the public were indebted to me for the Cheap Postage Law, that was passed in 1845. And you and others have proposed that those persons who have realized large savings from the reduction of postage, be requested to recognize the obligation. With this view you have desired me to put on paper the facts necessary to enable the public to understand my agency in the matter.

The question of indebtedness and obligation, on the part of the public, is one to be settled by each individual for himself; but the following pages will probably satisfy those who may read them, of these facts, viz: That I was the first to prove by argument—certainly the first to prove to the satisfaction of any considerable portion of the public—that Congress had no Constitutional power to forbid the establishment of mails, by the States, or by private individuals, in competition with the mails of the United States; 2, that I was the first to establish mails on that principle, and invite the government to test the question before the judicial tribunals; 3, that these events were followed by a recognition of the correctness of the principle, by an important portion of the bar, the press, the people, and, in one instance, by the bench, (Judge, Story,) and, in another instance, in the Senate, (by Levi Woodbury; 4, that numberous other private mails were speedily established, whose operations, by diminishing the revenues of the general Post office, threatened the Department with bankruptcy; and, finally, that Congress were compelled, in order to save the Department from becoming a burden upon the treasury, to reduce the postage to a rate that would rid the Department of the competition of the private mails; and that these were the immediate causes that led to the passage of the cheap postage act of 1845.

The importance of the Constitutional principle I contended for, whether viewed politically, socially, or commercially, will be in some measure appreciated, when it is considered that, if the government of the United States have the power to forbid [14] the States and individuals carrying letters, newspapers, and other mailable matter, it can, at will, suppress, to any extent it pleases, all written and printed communications between man and man. Theoretically, this absolute power was claimed by the government; practically, it was exercised to a very injurious and tyrannical extent.

The right of the States and individuals to establish mails has not yet been fully established by judicial decisions. The act of 1845, in terms, denies it; although the act itself was practically a concession to it—for it is not to be supposed that Congress would have yielded to a competition so destructive of their revenues, and based, as the Post-office Committee of the House of Representatives said, “upon the impudent assumption that the government of the United States have no authority to restrain or punish” the competitors—it is not, I say, to be supposed that Congress would have been so regardless, both of their own dignity, and of the duty of maintaining their Constitutional prerogatives inviolate, as to have thus succumbed to the usurpations of a few private persons, without so much as bringing the case before the Supreme Court, if they had had any real confidence that their authority would there have been sustained. They would naturally have vindicated their authority first, and considered the reduction of postage afterwards.

It was my intention—had I been sufficiently sustained by the public—to carry the question to the last tribunal. But after a contest of some six or seven months, having exhausted all the resources I could command, I was obliged to surrender the business, and with it the question, into the hands of others, who did not see sufficient inducement for contesting the principle, after the reduction of postage had taken place.

But, great as was the relief afforded by the act of 1845, the value of my movement did not end there. That act, by the proof it afforded that a low rate of postage will support the Department, became but a preparatory step to the still further reduction made by the act of 1851.

I understand that my claim to be remunerated for my services and losses, has been objected to, on the ground that I engaged in the enterprise with a view to make money; that, so far as I was concerned, it proved to be a losing business; that, in this respect, it stands but on a level with enterprises generally that prove unfortunate, presenting no claim for indemnity or compensation from the public. The error of this objection consists in this, that it leaves entirely out of view the benefits the public have received from my unrewarded labors. Those benefits distinguish this case from all those unfortunate private adventures, which propose no benefit to the public, in which [15] the public have no interest, from which they derive no advantage, and whose authors they are consequently under no obilgation to compensate.

It is true I hoped to realize a profit from the enterprise; although I trust I had also a proper sense of pride and duty in the establishment of so important a principle. But no person—no one certainly in my circumstances—would have been justified in entering upon so expensive a contest with the government, unless he had trusted to come out of it, at least without loss.

With reference to my prospects of profit, it is also to be considered, that although the legal idea, and the argument sustaining it, may have had as much originality as any of those mechanical or chemical ideas, which the government protects by securing to their authors an exclusive property in them; and although my ideas were of far greater value to the public than almost any one of those that have ever been thus guaranteed to their authors; still, being legal ones, I could obtain for them no patent, and secure for them no monopoly. All persons, who could read my argument, or hire a lawyer to read it for them, were at once free to avail themselves, as many did, of my thoughts, and establish themselves in competition with me in carrying them into practice. The idea and the argument were therefore necessarily a free gift, on my part, to the public, because the public were sure to get the benefit of them, without being under any compulsion to make any payment to me.

Nevertheless, I looked for a profit from the undertaking—a legitimate profit from the business of carrying letters in the midst of free competition—for I could not believe that the public would be so unmindful of one who should vindicate for them so great a right—a right so vital to civil liberty, so important in a pecuniary view, and the establishment of which was sure to result in the reduction of the government postage to the lowest rate to which free competition could bring it—as to give him no preference in business over those who had done nothing for them in that behalf. Probably such would not have been the case, had not the fact of my being the first to establish mails in avowed defiance of the authority of Congress, and the fact that my mail arrangements were at the outset more extensive than those of any other person, (to wit, from Boston to Baltimore,) induced the Postmaster General to direct nearly or quite all his efforts, for the suppression of private mails, against me alone. By employing a large police in the cities and on the roads, he was enabled occasionally to detect and arrest my carriers, and thus obstruct my mails. In this way the confidence of the public in the certain transmission [16] of their letters through my mails was diminished, and their patronage accordingly withheld. In the mean time, other private mails were allowed to pursue their business, either in entire, or comparative, quiet; and their mails being the surer conveyance, they secured the larger share of business, and their proprietors reaped the profits which should have been the reward of my labors.

The consequence was that, after having sustained the conflict for some six or seven months, and placed the principle, on which I acted, so fully before the public as that it finally compelled the concession of Congress to it, I was obliged, by want of means, to abandon the business, after having incurred debts which to this day I have been unable to discharge.

I subjoin the following “Statement,” and a copy of my argument. The two embrace the proofs of all the more important assertions made in this letter.

With these remarks I leave the question of obligation, on the part of the public, to be determined by each person individually, to whom application may be made for contributions.

Very truly

Your Obt. Servt.,

LYSANDER SPOONER.

[17]

STATEMENT.

THE CONSTITUTIONAL QUESTION.

My argument on the “Unconstitutionality of the Laws of Congress Prohibiting Private Mails,” was published in January, (about the 10th,) 1844.

Copies were sent to most of the members of Congress, and to the Postmaster General.

On the 6th of Feb., 1844, it was published at length, in the New York Express.

Of this argument the New York Express said, (January 13th, 1844,)—“The writer has certainly made out a very strong case.”

January 30th, the same paper called it, “A very able argument,” and said, “we do not see how it can be got over.”

February 7th, the same paper said, “Mr. Spooner has discussed that great question with surpassing ability.”

The New York Tribune, (January 18th, 1844,) gave an extended synopsis of the argument, and said:

“This pamphlet deserves attention. It is certainly an able statement of one side of the subject, and the people may find, after all, that the Postmaster has stretched a point in the Constitution.”

The New York Evening Post, (January 29th, 1844), called it “A very able pamphlet,” and said, “we hold with Mr. Spooner in this matter.

The New York Journal of Commerce, (February 29th, 1844), said, “It has been concurred in by the general voice of the legal gentlemen who have examined it.”

[18]

Hon. Rufus Choate, Hon. Simon Greenleaf, Hon. Franklin Dexter, Hon. Benjamin F. Butler, Hon. William Kent, Hon. William H. Seward, and Hon. Robert Rantoul, Jr., give the following certificates:

Rufus Choate

Choate, Rufus

9 Feb. 1849

Boston,

“I have been requested to express an opinion respecting a pamphlet entitled ‘The Unconstitutionality of the Laws of Congress Prohibiting Private Mails, by Lysander Spooner,’ published in 1844. Having had occasion to examine this pamphlet carefully, soon after it appeared, I am happy to say that I was impressed with the ability and research displayed in it. The arguments it presented were, to a great extent, original, and the author’s leading and important position, that all laws prohibiting private mails were unconstitutional, was maintained with a force and cogency, calculated, under the obvious limitations applicable to it, to convince every unbiased judgment.

“

Boston,

9 Feb. 1849

.

RUFUS CHOATE.”

S. Greenleaf

Greenleaf, S.

May 2, 1849

Andover,

“

Andover,

May 2, 1849

.

“Gentlemen,

—I have received your favor of April 27, requesting my opinion on the constitutionality of the laws against private mails.

“My attention has never been specially called to that question, and it is out of my power, at present, to command the time necessary for a thorough examination of it. I can only say that, having read over Mr. Spooner’s argument, I have been deeply impressed with its cogency, and the research it displays, and should think it a very difficult work to refute it. In effecting a reduction of the postage, which seems justly attributable to his exertions, he has performed a service deserving not only the gratitude of the community, but a remuneration of the expenses it must have cost him.

“Respectfully, your Obedient Servant,

“S. GREENLEAF.”

“To Messrs. John W. Wetherell, John C. Wyman, and Oliver H. Blood.”

Franklin Dexter

Dexter, Franklin

January 31, 1850

Boston,

Samuel E. Sewall

Sewall, Samuel E.

“

Boston,

January 31, 1850

.

“Samuel E. Sewall, Esq.,—Dear Sir,

—In answer to the inquiry contained in Mr. Lysander Spooner’s letter to you, I very willingly state that I consider his printed argument, against the power of Congress to prohibit private mails, as quite unanswerable.

“That argument was produced, and substantially repeated, in the defence of certain prosecutions which I was, as U. S. [19] Dist. Attorney, specially required to institute against persons who had set up private mails. I had, of course, occasion to consider it carefully, and I could make no answer to it satisfactory to myself. Since that time my attention has been again drawn to the subject, as Lecturer on Constitutional Law at the Cambridge Law School, and I felt obliged to state the opinion that Congress possessed no such power.

“FRANKLIN DEXTER.”

(Hon. B. F. Butler’s letter discusses the question, at too great length to be inserted entire. I give the more important portions.)

B. F. Butler

Butler, B. F.

Feb. 26, 1850

New York,

Lysander Spooner

Spooner, Lysander

“

New York,

Feb. 26, 1850

.

“Lysander Spooner, Esq.,—Sir,

— * * * I regard the provisions of the existing Acts of Congress, creating a government monopoly in the transmission of ‘mailable matter,’ as inexpedient and oppressive; and, so far as those provisions impose penalties on individuals for carrying, for hire, on their persons, or in their vehicles or vessels, by land or water, letters, newspapers, or packages, your argument goes very far to show, that no power to pass any such laws has been delegated to the Congress of the United States. If the question were a new one, I should expect the courts to repudiate the claim of the Federal Government to any such authority. * * * * *

“I am not prepared to say that the several Congresses that passed, and the several Presidents that approved, these laws, transcended their powers, and violated the Constitution. *

“That your efforts have largely contributed to awaken attention to this great interest, no one can deny; and, whatever I may have thought of them before my recent perusal of your pamphlet, (published by you in 1844,) I am now satisfied that you were induced to engage in those efforts under a deep conviction of the unconstitutionality of the laws with which they conflicted, and that you may therefore be regarded as having rendered, in this matter, good service to the country.

“Very Respectfully, your Obedient Servant,

“B. F. BUTLER.”

W. Kent

Kent, W.

May 18, 1849

New York,

Mr. Howe

Mr. Howe

“

New York,

May 18, 1849

.

“My Dear Mr. Howe,

—I return the pamphlet containing the argument of Mr. Lysander Spooner, on the Unconstitutionality of the Laws Prohibiting Private Mails.

[20]

“That he has established this point, I am not prepared to say, while I appreciate the force of his reasoning.

“One thing is certainly evident, that Mr. Spooner has displayed talent and energy in obtaining a reduction of the charges of postage, and deserves the gratitude of all of us for the obtaining of a great public benefit.

“I am Faithfully Yours,

“W. KENT.”

William H. Seward

Seward, William H.

June 2, 1849

Auburn,

“

Auburn,

June 2, 1849

.

“Gentlemen,

—My engagements leave me no leisure to examine the interesting question discussed by Mr. Spooner in the pamphlet you have submitted to me. It seems clear enough, however, that his opinion of the Unconstitutionality of the Laws Prohibiting Private Mails was adopted by him in good faith, and upon at least plausible grounds, while it has been discussed with great ability and fairness. Inasmuch as the agitation of the question, very proper under such circumstances, contributed to the reformation of our Post system and the establishment of cheap postage, I am quite satisfied that Mr. Spooner deserves well of the country and of the age.

“I am, with great Respect, your Humble Servant,

“WILLIAM H. SEWARD.”

“To Messrs. John W. Wetherell, Oliver H. Blood, and John C. Wyman.”

Robert Rantoul Jr.

Rantoul, Robert Jr.

Dec. 27, 1849

Beverly,

“

Beverly,

Dec. 27, 1849

.

“I have read and examined with some care Mr. Spooner’s pamphlet on the supposed power of Congress to prohibit private mails. His argument against the existence of such a power is lucid and thorough—indeed it seems to exhaust the inquiry on that side of the question.

“As it is of transcendent importance that the constitutional limits of the action of the Federal Government should be clearly defined and settled by general acquiescence, and as this can only be done by a consideration of the whole argument for and against every questionable claim of Federal power; as nothing can contribute more towards the progress of civilization and social improvement, and to perpetuate and strengthen the bonds of our glorious Union, than the cheap, rapid, safe and unrestricted intercommunication of thought, through written or printed vehicles, over the whole territory comprised in this group of republics, I think Mr. Spooner entitled to the gratitude of his country, for his able and efficient labors to illustrate the Constitution, and to facilitate correspondence.

“ROBERT RANTOUL, JR.”

[21]

The public will judge whether this argument, or the agitation of the question produced by it, and by the establishment of my mails, had any thing to do in calling out the following opinions.

Judge Story’s Opinion.

In June, 1844, (five months after the publication of my argument,) the first intimation, so far as I know, that ever came from the Bench, that the laws prohibiting private mails were unconstitutional, came from Judge Story, on the trial of Winsor Hatch.

After giving the case to the defendant, on the ground that the facts proved, did not bring the case within the letter of the statute, Judge Story, (as he is reported in the Boston Daily Advertiser of June 18th,) said:

“That there was a very grave and important question behind all this, which was not raised by this case, but which had been of late agitated; and whenever a case occurred, requiring its decision, must be decided at Washington, by the Supreme Court of the United States. This was, whether the United States had any exclusive right to establish post offices and post routes. This was a question of great importance, and there were many difficulties in maintaining that power in the United States.”

As reported in the Boston Mail, of June 17th, Judge Story said:

“That a still more important question lay behind all these, and that was, whether the government had, by the Constitution, any exclusive right to set up post offices and post roads, or whether its jurisdiction extended any farther than the right to make laws regulating the conduct of those actually employed in the service of the United States mail. This question, he said, he should embrace the first proper opportunity to carry before the full bench of the Supreme Court, plainly intimating that his own opinions were opposed to any such exclusive right on the part of the government.”*

[22]

Senator Woodbury’s Opinion.

February 6th, 1845. In a debate in the Senate, on the new postage bill, pending an amendment to restrict the transmission of newspapers out of the mail, Senator Woodbury, now Judge Woodbury, of the Supreme Court of the United States, (as reported in the Globe, and the report copied in the Boston Times of Feb. 14,) said:

“How abhorrent, also, was the principle involved in such a prohibition! We choose to become common carriers, on the great highways of the nation, of letters, and newspapers, and periodicals, and therefore assume the power to punish all others who choose to exercise their individual rights to be likewise common carriers. * * *

“What, sir!—are we to interfere in this way with the mails in which our constituents shall carry or send their own property? Are we to regulate the prices of labor or freight, or the private rights of the people in any thing, merely by construction? No power was ever given in the old Confederation, or in the present Constitution, to exercise such officious and restrictive interference.

“He was alarmed at the progress of the government in setting up such a monopoly, as well as officious interference. Were the question a new one at this moment, the whole restrictions on private enterprise and private competition in carrying letters themselves, could not stand an hour.* Government would be left to carry its own letters, at its own prices; and individuals placed in the same position, or both hire others who would do it best or cheapest.”

[23]

Senator Woodbury made other remarks of a similar character, too long to be quoted at length.

Senator Allen’s Opinion.

February 6, 1845. Pending the same amendment, on which Senator Woodbury expressed the opinions just quoted,

Senator Allen said,

“It was very easy to see that, if the United States had a right and absolute control over the printed matter of the country, and therefore absolute power to make it circulate through one channel, they likewise had a right to say how much should circulate through that channel, and consequently had entire control over the press of the United States. That was the consequence. If Congress could prohibit the editors of newspapers from circulating their journals except through the public mail, so Congress could prohibit them from circulating more than a given number of their journals, or circulating them upon particular roads, and thus put the entire business under the administration of the Congress of the United States. * * * * * * If that power exist in the Constitution, it ought not to exist there, and the Constitution ought to be amended for that reason. He had no idea of allowing this government to put its hand upon the press of the country, and interdict, between it and the country, any communication.”

January 27, 1845. Senator Merrick said,

“It is known to all who hear me, that this (exclusive) power on the part of Congress to control this system, has of late been called into question in some quarters of the country.” * *

“Some (Senators) have ridiculed the idea of resorting at all to the use of penal enactments, as being, under any circumstances, unavailing and incapable of execution.”

Why “incapable of execution under any circumstances?” Because unconstitutional. It is not to be supposed that Senators would “ridicule” the idea that constitutional laws could be enforced.

[24]

Senator Simmons’ Opinion.

February 6, 1845. Senator Simmons said,

“The power to establish a mail was not given to enable the government to make exorbitant charges for service, much less to enable it to enforce a compliance with them, if made.”

Hon. Mr. Dana’s Opinion.

February 25, 1845. Hon. Mr. Dana (of New York) said, (in the House of Representatives,)

“But it may be said that the constitutionality of the penal laws, to suppress the expresses, may be easily ascertained by a trial. Sir, the Post Office is too great a blessing to this country to be lightly put in jeopardy. Your monopoly and exorbitant charges are extremely odious. The validity of that monopoly is not beyond all doubt. Stake not the department, under present circumstances, upon the hazard of a law-suit. Prejudice is too strong against you. Success is almost impossible; victory is useless; defeat ruin.”

When such opinions as have now been cited were expressed by the Press, the Bar, the Bench, in the Senate and in the House of Representatives, it is easy to see, (as, it will hereafter appear, was repeatedly asserted in Congress,) that the reduction of postage was the only thing that could save the Post Office Department from complete prostration.

MY PRIVATE MAILS.

On the 23d day of January, 1844, my mails were started from New York, to Philadelphia, Baltimore and Boston, as will appear by my advertisements in several of the New York papers of that date.

In my advertisements I stated,

“The Company design, (if sustained by the public,) thoroughly to agitate the question, and test the constitutional right, of free competition in the business of carrying letters. [25] The grounds on which they assert this right, are published, and for sale (at the offices) in pamphlet form.”

Some days before starting my mails, I wrote to the Postmaster General, informing him that I was about to establish mails, and inviting him to try the constitutional question.

The enterprise was strenuously supported from the beginning, by the New York Express, Journal of Commerce, and Evening Post. Other papers subsequently advocated the principle. Many stood neutral for a time. Few opposed, so far as they came under my observation, except those that had the patronage of the Post-office Department.

THE ACTION OF THE GOVERNMENT.

The action of the government in relation to the matter will be seen by the following extracts from the reports of Committees, the resolutions of the House of Representatives, the debates of the Senate, and the report of the Postmaster General.

The interesting epithets, which some of them apply to my conduct, would indicate that they had sufficient spirit, and a sufficient appreciation of the enormity of my offence, to have induced them to carry the question before the Supreme Court, before condescending to yield by reducing the postage, if they had not been overruled by others, or if, in their cooler moments, they had not themselves doubted what the decision of that Court might be.

The effect, which a little time and reflection had upon the feelings and language of some of the members, is quite noticeable, as, for example, in the case of Mr. Merrick, the Chairman of the P. O. Committee of the Senate. Those persons, who, on the 22d Feb., 1844, were described by him as “destitute of all patriotic or moral principles,” are, on the 27th Jan., 1845, spoken of as “private competitors, sustained by public opinion.” And their acts, which, at the former date, were designated by him as “such flagrant outrages,” and “such flagitious conduct,” became at the latter date, “private enterprise.” And “the conclusion, to which he comes” is, that after [26] all Congress themselves have been the great sinners, and their first duty is to reform their own legislation, and thus “satisfy and propitiate an enlightened public.”

FIRST RESOLUTION OF THE HOUSE OF REPRESENTATIVES.

On the 29th of January, 1844, six days after my mails were started, the House of Representatives

“Resolved, That the Committee on the Post Offices and Post Roads be instructed to inquire if any person or persons have, in opposition to the laws of the United States, established offices, and provided conveyances for transporting letters, papers, and other mail matter, in violation of the regulations adopted by Congress, from time to time, for the government of the Post Offices of the United States; and report to this House the result of their inquiry.”

FIRST REPORT OF THE P. O. COMMITTEE OF THE HOUSE.

On the 28th of February, 1844, the Committee reported, in answer to the foregoing resolution, that they

“Have become satisfied from information which has reached them through the public press, through letters, pamphlets, and other sources, that the laws of the United States, establishing and regulating the Post Offices of the Union, passed in pursuance of the Constitution, are daily violated and evaded. These infractions of existing laws, prompted by a sordid feeling of selfishness and avarice, are now openly and wantonly perpetrated by individuals, under the impudent assumption that the government of the United States have no authority to restrain or punish them. They claim the right, in contempt of all existing law, and in open defiance of its sanctions, to establish ‘offices, and provide conveyances for transporting letters, papers, and other mail matter.’ And they further contend that the power ‘to establish Post Offices, and Post Roads,’ delegated to the government of the United States, is not exclusive, but may be exercised either by the States or private individuals. In conformity to these opinions, real or pretended, extensive combinations have been formed, and are now daily violating existing laws, to the evident injury of the revenue of that important branch of the national service.

[27]

The committee are unanimously of opinion, that the power granted by the Constitution, to establish Post Offices and Post Roads, and the laws passed in pursuance of it, are both fraudulently evaded, and wantonly violated and defied, and that the government ought without hesitation to interpose its strong arm to arrest, and forever suppress such lawless conduct. The power to do this, if ever before questioned, has hitherto been regarded as the constitutional prerogative of Congress; for, from the foundation of the Post Office Department, the power has been exercised: and, in other times, the exercise of such a power has been submitted to in a spirit of loyalty and patriotism. That time has gone by; and the recent discovery, that a power that has been exercised by this government from its infancy, without a question, and without a doubt, may be violated with impunity, renders further legislation necessary to protect the public service, and presents a question no less momentous than this: Whether the Constitution and Laws of the country, or a lawless combination of refractory individuals shall triumph?

These outrages are of daily occurrence upon the principal lines of intercommunication between the important cities and towns of the Union, and, in some instances, are carried on under a belief, or pretence, that the existing laws cannot be enforced; and one of the active agents in their perpetration, and who is represented to be irresponsible in a pecuniary point of view, has even challenged a prosecution, in order to test the power of the government to restrain, prevent, or punish him for offences of that kind.”

SECOND RESOLUTION OF THE HOUSE OF REPRESENTATIVES.

On the 5th March, 1844, the House of Representatives

“Resolved, That the Postmaster General be requested to report to this House, what steps have been taken to prevent and punish the infractions of the laws of the United States prohibiting the establishment of any private mail or post, for the transportation of letters and packets; and whether in his opinion the existing laws are adequate to the suppression of such offences.”

[28]

REPORT OF THE POSTMASTER GENERAL.

On the 30th March, 1844, the Postmaster General made a report in answer to the call of the preceding resolution. The following are extracts.—

“One Lysander Spooner, at the head of what he has been pleased to denominate the ‘American Letter Mail Company,’ openly established his head-quarters in New York, and commenced the business of transporting letters between that city and Baltimore, and to other points. He professed to do this business openly, and defied the existing laws; invited a prosecution to test their constitutionality; and (as he supposed generously) offered to admit all facts necessary to establish his guilt. This offer, however, was coupled with a condition, that he was to be permitted to pursue his business unmolested until the Supreme Court of the United States had decided his acts illegal, and the laws of Congress referred to constitutional.* I could not consent thus to countenance for a single moment this open and lawless movement; and declined the conditions of Mr. Spooner, and gave orders and took the necessary steps to have him and his agents arrested by appropriate writs. When his agents could be certainly identified, they were [29] denied a transit in the railroad cars, engaged in the transportation of the mail.*

“One of these cases has been decided in the District Court of Maryland, and Mr. Spooner’s agent subjected to a fine of fifty dollars. * * * *

“Upon the decision of this case in Maryland, the head of the ‘American Letter Mail Company,’ issued his card, announcing his intention to confine his operations in the free States; alleging as his reason, that he was of opinion that no judge or jury in a free state would sustain the opinion of Judge Heath. Entertaining an opinion that the law was the same in both States, and equally confident that the result would be the same, whether tried in Maryland or Pennsylvania, New York or Massachusetts,† I have caused Mr. Spooner and his coadjutors to be arrested in all those States, whenever they have been found violating the law.

“This Company does not desist, and await the event of the suits instituted, but is still, as the reports of the agents inform me, in the daily violation of the existing laws. The daily expense of keeping up a police to detect these men is very considerable, and will not, I apprehend, be met by all the penalties which may be recovered. Who constitute this ‘American Letter Mail Company,’ besides Mr. Spooner, is a fact heretofore concealed from the public.

“I have deemed it unnecessary to accompany this report with any of the numerous letters and reports from postmasters, [30] and the agents of the department, connected with this subject. I wish I could say, in answer to the resolution, that the ‘American Letter Mail Company,’ are the only persons engaged in this business of transporting letters over mail routes, for hire, to the very great injury of the revenue of the department. Other persons, in various parts of the United States, are engaged in this business, against whom prosecutions have been ordered, where the proof could be obtained. The extent of the business thus carried on, can only be measured by the evident decline in the revenue of the department, which, I regret to say, from present appearances, will fall below the expenditures of the current year, notwithstanding the utmost economy has been pursued.”

SECOND REPORT OF THE P. O. COMMITTEE OF THE HOUSE.

On the 15th of May, 1844, Mr. Hopkins, in behalf of the majority of the Committee of the House, on Post Offices and Post Roads, made a report, from which the following are extracts:

“At this time, the necessity of adopting measures to preserve our national mail system is forcibly presented to our deliberations.”

“Events are in progress of fatal tendency to the Post Office Department, and its decay has commenced. Unless arrested by vigorous legislation, it must soon cease to exist as a self-sustaining institution, and either be cast on the treasury for support, or suffered to decline from year to year, till the system has become impotent and useless.”

“Why this loss of revenue, when the general business and prosperity of the country is reviving, and its correspondence is on the increase? Because the correspondence, to a great and increasing extent, is conveyed by individuals and companies, who have embarked in this species of business in competition with the government, and the present provisions of law are not fully sufficient to prevent the abuse.”

“If individuals are permitted to engage in the business, by confining their operations to the routes in which they incur but a small expense, and transact a large business, they can perform the service on such routes at a less charge than the government, and will necessarily, in time, deprive it of all the [31] business arising within the sphere of the competition. Individual enterprise, if left unchecked, will engross the productive routes, and the government must be left to convey the unproductive mails only.”

“This illicit business has been some time struggling through its incipient stages. * * * It has now assumed a bold and determined front, and dropped its disguises; opened offices for the reception of letters, and advertised the terms on which they will be despatched out of the mail.”

“Regarding it as a flagrant wrong, morally and politically, that the will and interests of this nation, as involved in the assumption and exercise of the Post Office power, should be defeated to create employment for individuals, and gratify the spirit of private gain, we propose to punish the transaction, in whatever form carried on or undertaken.”

“Let us first bring the correspondence of the country into the mails, by passing effectual laws against the private cupidity that makes a business of carrying it out of them.”

“We propose the discontinuance of the privilege, (the franking privilege,) in the State, the Treasury, the War, and the Navy Departments, and in all the bureaus attached to them. In fine, an entire abrogation of the frank, except for the official correspondence of the President, of Congress, and of the General Post Office.”

REPORT OF THE MINORITY OF THE P. O. COMMITTEE OF THE HOUSE OF REPRESENTATIVES.

On the same day, May 15th, 1844, Mr. Dana, on the part of the minority of the Committee, (consisting of Messrs. Dana, Grinnell and Jenks,) made a report, from which the following are extracts:

“If it were possible for the Post Office Department to sustain itself without the interposition of Congress, we might shrink from the responsibility of making any suggestions on the subject. But such a course is not open to us. Action cannot be avoided; for if Congress remain passive, the department must be prostrated.”

“Until very recently, the establishment has been a special favorite with the people. We regret to say, (but such is the fact,) that its popularity, like its revenue, has of late been greatly reduced.”

[32]

“While the people are thus unitedly pressing for a reform, the condition of the department itself, in trumpet tones, proclaims its necessity. Although its affairs are ably and faithfully administered, it is a lamentable truth that the department is involved in serious and lasting embarrassment; its revenue is greatly diminished from causes which are still in active operation, and daily extending; and unless an effective remedy be speedily applied, the whole establishment must be overwhelmed and prostrated.”

“An opposition Post Office was openly and publicly organized; its arrangements advertised; and it is now in active operation; continually spreading its lines of transportation.”

“The opposition Post Office is extensively patronised. We have no desire to scrutinize the motives of its patrons. Many, we have no doubt, are actuated by the mere selfishness of gain; but there are others whom we believe to be governed by other and higher motives. Having for years remonstrated in vain against what they deem to be exorbitant and oppressive rates of postage, they have at last adopted the conclusion that it is right to oppose and evade laws which they consider as unjust and oppressive; and they have accordingly taken redress into their own hands. We are far from sanctioning this view of the subject. Patriotism demands of all men obedience to laws constitutionally enacted, until they can be modified or repealed by legitimate means; but, while we pointedly condemn the conduct of these men, we cannot but respect the motives of such as sustain the opposition post office, from conscientious but mistaken views of duty, impelling them to resist what they deem to be an unjust and oppressive monopoly.”

“From the circumstances already noticed, there is reason to fear that the receipts of the present year will fall half a million short of those of last year.”

“The opposition are already dividing with the government the revenues of the routes from the city of New York to Buffalo, to Baltimore, and to Boston, and are extending their lines to routes of secondary importance, which operate as feeders to the main lines; and if they proceed unchecked, it is doubtful whether, in 1845, a single State in the Union will furnish sufficient postage to meet its own mail disbursements.”

“It is clear that a crisis has arrived requiring decisive action. Temporizing expedients, and half-way measures, will not answer. Pressing evils demand an immediate and efficient remedy. What remedy shall be applied? The first object to be accomplished, clearly is, to get rid of the expresses or private mails. Any measure which will not accomplish this object, is unsuited to, or at least insufficient for, the occasion. Penal [33] enactments, inflicting fines and imprisonment on all persons concerned in the transportation of letters out of the mail, have been suggested as the remedy. With such a reduction of postage as will satisfy the public, and insure united action to execute the laws, the proposed remedy might be effectual; but without such a concession to the popular will, we fear the remedy would not only be inefficient, but, by exciting stronger prejudices against the department, aggravate the existing evil. The people, with great unanimity, in person, and through their State legislatures, ask for a radical reduction of postage, and instead of the fish they ask, we give them the serpent they detest. We greatly fear that such an answer to their petitions will arouse a spirit of opposition to the department dangerous to encounter, and difficult to allay. Our government is entirely based on popular opinion; the House of Representatives, the laws, and the Constitution itself, are the mere reflection of the popular will. If laws are enacted by their representatives, in opposition to the will of the people, it is impossible to enforce them; the decided resistance of a respectable minority is sufficient to nullify a law for all practical purposes; and so difficult is it to convict even a single individual of wealth and influence of an offence, that it has grown into a proverb,—that penal laws are spider’s webs, in which small flies get entangled, and the large ones break through. How can it be possible, then, to enforce penal sanctions against the combined power of wealth, influence, and numbers, sustained by a strong public sympathy? We do not believe it can be done, and, under present circumstances, we should regret to see the experiment tried, lest it produce evils more serious than those it is intended to cure.”

“But if we can secure the popular feeling in favor of the department, the laws to suppress private post offices can be readily executed.”

“As yet, public opinion has not entirely arrayed itself on either side of this question; it is in suspense, waiting the action of Congress in relation to the reduction of postage. Grant the demands of the people, and they will go with you in sustaining the department, and in enforcing the laws for its protection; deny their petitions, and the great mass of the community will take ground against the department, and the final result will be its prostration, and the establishment of private mails in its stead. We believe there is one way, and only one way, in which the department can be sustained, its popularity redeemed, and its revenue restored, and its accommodations and benefits extended,—and that is, by making it the safest, the cheapest, and the most expeditious mode of transmitting letters and intelligence. Reduce radically the [34] tariff of postages, and the increase of mail matter will compensate for the reduction of the rates, and, in a short time, restore the revenue to its former flourishing condition, and secure to the department the confidence and co-operation of the people. Then, if attempts are made to violate or evade the laws, their sanctions, however severe, may be enforced; for the community will unite in their execution. We again repeat that, in our opinion, the first thing to be accomplished is, to get rid of the expresses; and any sacrifice that may be necessary to accomplish this object, ought to be made unhesitatingly. So long as the present high rates of postage are sustained, there will be great pecuniary inducements for the opposition to continue their operations, even at some risk of prosecutions,—and letter writers have strong motives to patronise the opposition; but if the tariff of postage be reduced to the rates charged by the express, neither, for so small a chance of gain, will be willing to incur the risk of penalties. Any reduction which is insufficient to drive away the express competition, will only diminish the revenue, without a hope of compensation by the increase of mail matter. A proposition to reduce postage to five cents for one hundred miles, and to ten cents for any greater distance, we should consider of this character. About two-thirds of the letters sent along the mail routes between Washington and Boston would be subject to the ten cent rate; the express will carry them for six cents, and realize a good profit, sufficient to make it an object to brave prosecutions; and the people, indignant at being put off with so small an abatement, will, to a great extent, patronise and countenance the opposition. Without a greater reduction of postage, we fear the expresses cannot be suppressed.”

“The reduction we propose will conciliate the popular feeling, expel the expresses, and bring nearly all the correspondence of the country into the mails.”

“The entire abolition of the franking privilege, except as to the business of the Post Office Department itself, we unqualifiedly recommend. This is a reform which, more than all others, is demanded by the people; and the demand is enforced by the necessities of the department as a revenue measure.”

REPORT OF THE P. O. COMMITTEE OF THE SENATE.

On the 22d of February, 1844, Mr. Merrick, Chairman of the P. O. Committee in the Senate, made a report, from which the following are extracts:

[35]

“The indispensable duty of doing something is upon us, and an effrt must be made to reform this most important and useful branch of the public service. This necessity is imposed both by a proper regard to the public will, and the pecuniary condition of the Post Office Department itself.”

“The cause of this great falling off, in a season of reviving prosperity in the trade, business, and general condition of the country, cannot be regarded as transient, but, on the contrary, is known to be deep and corroding, and, unless arrested in its operation by the timely interposition of Congress, must so cripple the revenues of the department as either to destroy its usefulness, or throw it as a burden upon the general Treasury. This cause is the dissatisfaction felt generally throughout the country, but most strongly in the densely peopled sections, with the rates of postage now established by law, and the consequent resort to various means of evading its payment, leading first to the clandestine employment of private expresses, and more recently to the unblushing violation and open defiance of the laws. Your committee would be far from recommending any concessions whatever to those who have shown themselves to be destitute of all patriotic or moral principles, and are engaged in the daily perpetration of such flagrant outrages; but it forms no part of their duty to deal with them now; they leave them, therefore, to the care of the executive, and judicial officers of the government, and turn to lament that condition of the public feeling which can tolerate and countenance such flagitious conduct. Much as they deprecate the loss of the fair and proper revenues of the department, deeply and sincerely as they should regret any material abridgment of the advantages and utility of the Post Office establishment, both sink into insignificance when weighed with the fatal effects of a loss of reverence for the laws, or an alienation from government of the affections of large bodies of its citizens.”

“We have seen that dissatisfaction with the existing regulations of the Post Office Department prevails with a large number of the people of the country; that the consequences of that discontent have been a heavy diminution of its revenues during the past year, and a disregard in several striking instances of the laws enacted for its protection, with the apparent sanction, or at least connivance, of large numbers of the people. Let us, then, carefully inquire whether this discontent does not arise from some such discordant action of that department as is above alluded to, and whether it be not in the power, and consequently the duty, of Congress, promptly to correct this evil, and, by restoring the harmonious action of the department, bring to its support the good feelings of the public.”

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“We come now to consider the still more important provisions of the bill, (reported by the committee,) which propose an average reduction of the existing rates of postage by about one half.”

“Enough has been said to show the opinion of your committee to be, that the rates of postage should be reduced as much as possible, consistently with the preservation of the usefulness and efficiency of the Post Office Department, and the support of that department by contributions levied equally upon all who are served by it, according to the amount of service rendered. Can the reduction proposed by the bill be made, consistently with these views? We have seen in the outset that something must be done; that the revenues of the department are rapidly falling off, and a remedy must in some way be found for this alarming evil, or the very consequences dreaded by some, from the reduction of rates proposed, will inevitably ensue, namely, a great curtailment of the service, or a heavy charge upon the national Treasury for its necessary expenses. It is believed that, in consequence of the disfavor with which the present rates and other regulations of this department are viewed, and the open violations of the laws before adverted to, not more than, if as much as, one-half the correspondence of the country passes through the mails; the greater part being carried by private hands, or forwarded by means of the recently established private expresses, who perform the same service, at much less cost to the writers and recipients of letters than the National Post Office.”

“The question then recurs, can the reduction of the rates of postage proposed by the bill be made, consistently with the purposes to continue the present amount of mail service, and provide for the expenditures of the Post Office Department by its own revenue?

“The committee think it can. And further, they are persuaded that it is the only certain means of effecting those very desirable objects!”

“The public will be satisfied and pleased, the committee think, with the reduction proposed by the bill.”

DEBATES IN CONGRESS IN 1844, AND 1845.*

In the Senate.

March 22d, 1844. “Mr. SIMMONS offered an amendment increasing the distance from one hundred to two hundred and fifty miles for the lowest rate of postage,” proposed by the bill, (5 cents.)

[37]

“The object, (he said,) was to ensure the transmission of their letters by mail instead of the express. Gentlemen would see, by looking at the distance between Albany and Boston, Boston and New York, and other routes on which expresses were established, that they exceeded a hundred miles. But the private expresses carried letters on those routes at six and a quarter cents. If we put the postage at ten cents, it would not have the effect to bring all that matter into the mail. The lowest rate of postage was five cents under this bill, and he was of the opinion that it ought to extend to distances not exceeding two hundred and fifty miles. If not, the provision would not have the intended effect.”

March 22d, 1844. Mr. BUCHANAN said,

“That the Senator from Rhode Island, (Mr. Simmons,) had stated, that if the rate of postage were not reduced, according to his proposed amendment, private expresses would continue to carry the greater part of the letters between the principal cities. Mr. B. said he could not recognize the existence of such expresses as an argument in favor of the amendment. They were plainly and palpably in violation of the constitution of the United States. That instrument granted to Congress the power, and, as a necessary consequence of this grant of power, imposed upon them the duty, ‘to establish post offices and post roads.’ This was a sovereign power, and if individuals could establish private expresses, or opposition lines to rival the public mails, we might as well at once surrender the important powers of government. This grant of power was exclusive in its nature, and neither states nor individuals could impair or arrest its exercise. Constitutionally speaking, as (well) might individuals establish a mint, and undertake to coin money, as to establish these private expresses. In point of principle, both were equally destitute of foundation. These private expresses must be put down; and if the present laws were not sufficiently severe for the purpose, new laws must be enacted. It concerned both the interest and honor of the country, that Congress should not suffer the exercise of its unquestionable constitutional powers to be impaired or defeated by the lawless action of individuals. And well was it for the country that we did possess the power. What would become of the mail facilities, which the people now enjoyed in the thinly settled portions of our country, if all the leading routes were rendered profitless to the government by these private expresses!”

March 29th, 1844. Mr. MERRICK, (Chairman of the P. O. Committee,) said,—

“In what condition did the Committee find the Post Office Department when they took up this subject? He would ask the Senate to look at that condition, and then say whether they were to fold their arms and do nothing. The Post Office laws had become odious and unpopular, and were therefore [38] evaded by the people everywhere. The system was everywhere and universally contemned and despised, and considered as grievously unjust to the body of the people. This state of things held out a pernicious example to the country. An habitual trampling upon the laws was injurious to public morals, and to the stability of free government. Apart from other considerations, this alone ought to prompt us to render the laws worthy of support.”

“The principal cause (of the decrease of revenue,) is stated to be the number of private posts, called express mails, established on all the leading steamboat and railroad routes through the country. The Post Office establishment must become a burden on the public Treasury, unless you adopt a new system. * * * * You must do something, or appeal to the national treasury for the support of the establishment. It was out of the question, when the revenues were so rapidly decreasing, to attempt to defray the expenses of the unprofitable routes. Something should be done that would prevent evasions of the law by satisfying public opinion. We could not stand still where we are.”

“As to the private expresses, every guard was resorted to for the purpose of arresting them. But the committee had thought it impossible, in the present state of feeling in regard to the system, to enforce the laws against the conveyance of letters out of the mail.”

April 1st, 1844. Mr. PHELPS said,

“As to putting down private expresses, it was idle to talk of doing it by any other legislation than that which would carry public opinion along with it. The public must be shown that the Post Office Department will transport mail matters as cheap as private expresses, and as expeditiously, or all laws to put down private expresses will become nugatory.” * * “He was opposed to the principle of enforcing a law by penalties, against the general feelings of the community.”

April 1st, 1844. Mr. SIMMONS said,

“The operation of private expresses was considered by the Department the chief cause of its embarrassment. To this, therefore, the Senate should look as the first thing to be remedied.” * * * He “entered into various calculations to show that a small reduction on the express routes would not put down the competition which interfered with the income of the Department.”

April 17th, 1844. Mr. MERRICK said,

“He wished to impress upon the minds of Senators that the Department was in such a condition that it was impossible to stand still. Something [39] must be done for its relief. Some legislation must take place, or the Department must become a charge upon the treasury.” * *

“He adverted to recent decisions of the judiciary against the Department and in favor of the private expresses, and quoted various newspaper paragraphs to show the excitement got up against the General Post Office, and in favor of those expresses.”

April 17th, 1844. Mr. BREESE advocated “a uniform rate of postage of five cents per half ounce for all distances.” * * “He felt satisfied that, by going at once to the root of the disease, such a reform could be accomplished as would effectually resuscitate the revenues of the Department, and give universal satisfaction to the people. Any thing short of this would be wholly inadequate to effect such a reform as the public expected.” * * “He believed that a reduction ought to be made to two cents, and that it would be a more productive rate than any other that could be adopted.”

April 17th, 1844. Mr. HANNEGAN said he “had been assailed for his opposition to the illegal expresses. He should, nevertheless, do all he could to put them down as violations of law. He was certain that the plan of the committee would not remedy the evil. But if we reduced the rates further, it would be attended with an increase of the number of letters mailed.”

April 18th, 1844. Mr. ATHERTON said he “hoped the motion to strike out the rate of 3 cents for distances less than 30 miles would not prevail. This reduction he conceived to be, perhaps, the most important of any that had been proposed. It would be found particularly so at the North, where towns of considerable size were frequently near each other. And it was also important, considered in relation to its operation on the private expresses, of which so much had been said.”

In the House.

June 12th, 1844. Mr. HALE said,

“The Committee recommend vigorous legislation, pains and penalties, as if they could afford a sovereign remedy.

“Now, Mr. Chairman, I undertake to say that if the action proposed by the Post Office Committee be adopted by this House, and the relief asked for be withheld, instead of putting down, you will increase the private expresses; and ten will spring up where there now is only one. The difficulty lies deeper than some gentlemen imagine. It is in this. The system, as at present [40] conducted, with its present high rates of postage, does not commend itself to the favorable consideration of the people. Instead of looking upon it as intended for their benefit and accommodation, they look upon it with jealousy and distrust, and regard it as a monopoly. * * * It is to counteract this state of things, and present this Department to the country in a position commending itself to their judgments and their hearts, that we should now exert ourselves. Will penal enactments effect this? No, Sir, no. Far different from this must be our course, if we would attain the object which all profess to desire.”

June 12th, 1844. Mr. PATTERSON thought “if this bill, (a bill for putting down the private expresses), should be passed without a bill reducing the rates of postage, that such was the feeling throughout the country, that it would be impossible to carry it out.”

June 12th, 1844. Mr. THOMPSON said,

“It had struck him as something strange that members should be found willing to justify the setting at naught the Post Office laws—for such he understood to be the tenor of the remarks of some who had spoken on the subject.”

A bill passed the Senate at this session, (April 29th, 1844,) reducing the rates to

3

cents for 30 miles—for a single letter.

5

cents for 100 miles—for a single letter.

10

cents for 300 miles—for a single letter.

15

cents for all over 300 miles.

This bill was sent to the House, referred to the Committee on Post Offices and Post Roads, and by that Committee “reported to the House without amendment,” June 12th, 1844. But as Congress adjourned but five days afterwards, (June 17th,) the House had not time to act upon the bill, and it was lost.

In the Senate.

January 16th, 1845. Mr. NILES said,

“The law is openly violated, and private expresses are established between all the important commercial cities, which convey a large portion of the letters which would otherwise be conveyed in the mail.”

[41]

“The people see and appreciate the immense advantages of a system of low postage. They have had a foretaste of these advantages, through the private expresses, and they will not relinquish them.” * * * “Reduce the postage to a reasonable rate, so as to satisfy the public mind, and the violations of the law will cease.”

January 27th, 1845. Mr. MERRICK* said,

“Private competitors for the performance, and, of course, for the profits of the service, are springing up upon all the important and valuable routes, and, under the public countenance, are superseding the mails of the United States, to the great detriment of the service, to the injury of the public morals, to the great real disadvantage of the very public by whom they are countenanced and encouraged, and, if not checked, to the certain ultimate prostration of the whole Post Office system. These are grave and alarming evils, and demand the most serious and grave consideration.”

“Private enterprise is successfully competing with the government in the performance of the service on all the important and valuable routes, and deprive it of the income necessary to support the existing Post Office establishment.”

“Sustained by public opinion, these private competitors are daily extending their operations, and unless the power and authority of Congress is wisely, and prudently, and promptly interposed, they must soon prostrate the Department.”

“Others again advance the opinion that extreme reduction of rates is the only means of putting down this private competition, and advise a reliance solely upon underbidding by the Government as the means of securing to it the whole business, and repudiate the idea of deriving any aid from penal enactments.”

“The conclusion to which I have come is, that we should first reform all the evils complained of, so far as they have any real existence, and by this means satisfy and propitiate an enlightened public. Remove all just causes for dissatisfaction, and the dissatisfaction will soon cease; and that public, which is now in some quarters willing to see your Post Office establishment go down, nay, are even ready to aid in its destruction, will soon begin to look upon it with very different feelings.”

“Some have ridiculed the idea of resorting at all to the use of penal enactments, as being, under any circumstances, unavailing and incapable of execution.”

[42]

January 27th, 1845. “Mr. WOODBURY was in favor of reducing the postage to three cents upon letters conveyed not more than thirty miles. If you keep up the rates for short distances, you have no chance of breaking up the expresses running from the great cities. He supposed that the increase of letters by cheap postage would fully keep up the revenue, and by low rates you will break up the great evil now complained of, and which we were aiming to reach—the expresses.”

January 28th, 1845. Mr. MILLER “objected that five cents for 100 miles would not meet the competition of private expresses, nor ten cents for greater distances. * * To compete with them the reduction should be to 5 cents. Besides, unless for short distances the reduction was to 3 cents, none of the correspondence carried by private hands or private expresses, would come into the mail.”

January 28th, 1845. Mr. MERRICK said,

“First make a reasonable reduction of postage to meet the expectation of the public, and then trust to restringent laws to protect the monopoly of the Department. That was the only practicable way of putting down the private competition of these expresses, so injurious to the Post Office revenue.”

January 28th, 1845. “Mr. WOODBURY considered the proposition of three cents for short distances, and so on ratably for greater distances to ten cents, likely to effect both objects—that of putting down the expresses and increasing the revenue.”

January 29th, 1845. “Mr. MILLER felt assured that the rates and distances proposed in the original bill would fail of meeting public expectation, or of remedying the grievances complained of by the Department in relation to the interference of private or public expresses.”

January 29th, 1845. Mr. SIMMONS said,

“What was the object in view in the passage of this bill? To prevent the interference of expresses, and to preclude the carrying of letters by private hands.” * * “It was manifest, then, that the reduction proposed by the Senator from Maryland would not have the slightest influence upon this private interference.”

January 29th, 1845. Mr. BREESE said,

“The present high rates have brought the Department and the system into disrepute, and means are sought by which to be relieved from its oppressions. Penal laws cannot effect the object. It is in vain to resort to them. Your law must be in accordance with public sentiment, or it will be evaded.” * * [43] “Mr. B. repeated that he did not believe any such measure as the one now proposed would gratify the public. * * They (the people) will see that letters are carried more than one hundred miles for five or six cents, (by the private mails), and they will demand that the government shall carry them for the same, or they will abandon the use of the mails and patronize private enterprise. This is natural: and all the penal laws you can enact will not prevent it.”

January 30th, 1845. Mr. PHELPS said,

“In spite of all the penal enactments that could be devised, so long as private expresses would carry single letters for 5 cents while the government charged 10, penal laws would be disregarded, and the expresses would flourish and be sustained by public sentiment.”

February 3d, 1845. Mr. MERRICK said,

“The point in which the whole success of the measure depended, was the protection of the Department from the competition of the private expresses.”

February 6th, 1845. Mr. SIMMONS said,

“One question presented is, whether or not the reduction to ten cents for distances over one hundred miles will remove one of the difficulties in our way, which is the interference of private mails or expresses in the business of letter carrying, and the consequent reduction of our receipts.”

“I have no faith in the sentiment that you can prevent the people of this country from employing such of their own citizens as will do their work the cheapest, by a system of prosecutions such as this bill contemplates; and I should have no favor for it if I thought it would produce that result.

“I believe the right and the only practicable way to command business sufficient to support the Post Office Department is to do it better and cheaper than individuals can. This the government can afford to do, and is, in my judgment, bound to do. The power to establish a mail was conferred on the government in this expectation, and for this purpose. It was not given to enable the government to make exorbitant charges for service, much less to enable it to enforce a compliance with them, if made. I think the existing charges for letter-carrying are of this character; and I am not disposed to denounce all who afford or employ other means of communication than the United States mail.”

“If further reduction is refused, the people will, in greater numbers than at present, leave your mail, and seek other modes of conveyance. They may regret this, but they will submit to ‘the necessity that impels them to the separation.’ No man can expect any thing else who knows the history, or can appreciate the character of this people.”

[44]

“The Post Office Department is at present without adequate means, because it has not the public opinion in its favor. This will continue as long as the cause of it is allowed to remain, and after the passage of this bill, as well as now, unless our postage is as low as that of individual carriers. Our object should be to gain the good opinion and business of the public.”

“A prudent course demands an effectual reduction—one that will secure the business to our mail. Can we hope to do this by reducing our charge for letter-carrying from threefold, as it now is, to double the rates charged by our competitors, as he proposes? Individuals have not succeeded in taking the business from the mail by such a course; they underbid to get business, and do the same to regain it when lost. It is a new idea that this may be easier done by a prosecution for penalties, as this bill contemplates. Nobody should expect to succeed in getting custom for the mail by prosecuting or persecuting the people whose support it wants. There are obvious reasons against trying such an experiment.”

“Do you expect to induce people to patronize your mail by commencing prosecutions against them? If any individual were to propose to do any such thing, he would be thought a fit subject for a mad-house.”

February 6th, 1845. “Mr. PHELPS said the bill would be ineffectual, and you would never get rid of these expresses until you carry as cheap as they do. There is only one course to be taken, and that is to come down in your prices and satisfy the public that you carry letters as cheap for them as any one else will do.”

February 7th, 1845. Mr. ATHERTON “urged the necessity and great importance” of an amendment to the effect that the postage of letters not exceeding 50 miles be 3 cents; saying “it was on short distances that competition had to be put down, which could only be done by a reduction to 3 cents.”

In the House.

February 25th, 1845. Mr. DANA said,

“The condition of the Post Office Department itself requires some change in the system. The Department is running down—its revenues and its accommodations are diminishing.” * *

“Your high rates of postage have driven the letters from the mails, and they have found cheaper channels of transportation. On nearly every important mail route expresses have been established. They carry letters at one third or one fourth of the regular postage, and deliver them personally as soon, if not earlier, than the mailed letters are ready for delivery at the Post [45] Office. The people find them a great convenience. They don’t know how to dispense with them, unless you will so modify your Post Office system as to provide a substitute.”

“What is the remedy for the diversion of the letters from the mails? Some of our friends suggest that it is to be found in penal enactments. * * But your penal laws against the expresses will remain a dead letter upon your statute book. Public opinion is against them—they cannot be executed. * * Nothing can be more absurd than to attempt to fetter the great mass of the people, contrary to their will, by penal laws. * * Such laws cannot be executed here. If it is as easy, as some suggest, to suppress the expresses by prosecutions, why has it not been done? They are in constant, open, and avowed operation.”

“The Department is here openly braved. If it be so easy to put down the expresses, why has it not been done?”

“What then is the remedy? Reduction—make your conveyance the cheapest and best. To do this you must reduce the rates of postage radically, and at once. Bring them down below competition, and do it now. Wait for another Congress to assemble and it may be too late. As yet the people have not taken a decided stand against you—they are waiting for your action. Reform your system, cheapen postages, expedite transportation, and the people will go with you, and sustain you. They will clear the expresses and all other impediments from your path. Adjourn without doing any thing, and when you assemble here again you will find the Department bankrupt, new and extended facilities provided to dispense with mail accommodations, and a large majority of the people disposed to encourage and patronise them. A reduction that would have been satisfactory at the last session would be unavailing now; one which would be gladly accepted at this session would be contemned at the next. The longer you delay, the greater must be the concession. A 5 cent uniform rate of postage now will bring all letters into the mail. A 2 or 3 cent rate will be required for that purpose when you meet again. Come down, then, at once, with a good grace, to 5 cents, and agitation will cease. Delay, and the demand will continue to increase, and agitation become more violent. The ultra reductionists hope there will be no action at this Congress; they think us behind the spirit of the age, and are willing to endure the infliction of high postage another year, in the expectation of a greater reduction than can now be had. Sir, their calculations are correct—the consequences they anticipate will surely come. But I hope that this question may not be thrown over; that we shall act promptly and liberally—respond to the just demands of the people, and quiet this agitation. The Post Office will thus regain its lost popularity.”

[46]

“The first object is to get rid of the expresses and private mails. Any reform short of this is futile and useless. A cheap and dear system of postage cannot long continue in operation together. Cheapen your system, or the expresses will drive you off the road.”

March 1st, 1845. Mr. PATTERSON said,

“There appears to be no difference of opinion, from one end of the land to the other, that the present rates of postage are inequitable and grievously burdensome, rendering the Post Office Department so unpopular with the people as to make it impossible to prevent its revenues from being infringed upon by private enterprise in a thousand ways, in bold and open violation of the laws. As deplorable and demoralizing as this state of things is, it will continue so long as the people have before them daily evidence of the great injustice of the rates of postage, in the fact that private enterprise will perform the service for one third the money.”

A bill passed the Senate at this session, fixing a uniform rate of postage of five cents, for a half ounce, for all distances. This bill was sent to the House, and there changed so as to fix the rates at five cents, for three hundred miles, and ten cents for any greater distance. In this form it was agreed to by the Senate, and became a law.

No considerable debate was had in the House at either session. In 1845, debate was cut off by the “previous question.”

THE ACTION OF CONGRESS IN 1843, CONTRASTED WITH THAT IN 1844 AND 1845.

To see more distinctly the effect produced upon the minds of Congress, by the establishment of private mails, and the denial of the power of Congress to prohibit them, we have but to contrast the action of Congress immediately before those events, with their action immediately afterwards—as follows:

February 28th, 1843, the Senate passed a bill, fixing the rates of postage for a “single sheet,”

At 5 cents for 30 miles,

At 10 cents for 100 miles,

[47]

At 15 cents for 220 miles,

At 20 cents for 400 miles,

At 25 cents for all over 400 miles. And double and triple those rates for double and triple letters.

This bill was sent to the House, and on the 2d of March, 1843, amended so as to fix the rates of postage, at

5 cents under 50 miles, and

10 cents over 50 miles,

for quarter ounce letters; and double and triple those rates for the second and third additional quarter ounce.

This amendment could hardly be considered a reduction, except on the condition of the people’s stinting themselves to quarter ounce letters. Under this amendment, letters weighing over a quarter of an ounce, would pay 10 cents for all distances under 50 miles, and 20 cents for all distances over 50 miles.

As regards letters weighing over a quarter of an ounce, this would probably have been a positive increase on the old rates of postage.

On the same day, (March 2d, 1843,) the Senate “disagreed” to this amendment of the House, without a division. On the 3d of March, 1843, the House insisted on its amendment, and asked a conference. On the same day, the Senate insisted on their disagreement, and granted a conference. But the conference made no report, and it being the last day of the session, the bill was lost.

This was the condition in which the postage reform stood, in both branches of Congress, on the 3d of March, 1843, the last day of the session previous to the publication of my argument, and the establishment of the private mails. The Senate proposed nothing that deserved the name of reduction. The House proposed no reduction, except on the petty and vexatious condition of restricting the people to quarter ounce letters.

On the 29th of April, 1844, (about three months after the establishment of my mails,) the Senate passed a bill, fixing the rates of postage, for a single letter,

At 3 cents for 30 miles,

At 5 cents for 100 miles,

[48]

At 10 cents for 300 miles,

At 15 cents for all over 300 miles.

This bill was not agreed to by the House, and the matter went over to the next session.

February 8th, 1845. The Senate, by a vote of 38 to 12, passed a bill, fixing a uniform rate of postage, of 5 cents, for a half ounce, for all distances. This bill was amended in the House, so as to make the postage

5 cents for 300 miles, and

10 cents for over 300 miles,

for a half ounce. This amendment was agreed to by the Senate, March 1st, 1845; and this was the bill that became a law.

What was it that produced, in the minds of Congress, the remarkable changes evinced by these several bills, between the 3d of March, 1843, and the 1st of March, 1845? There can be but one answer to this question.

THE EXAMPLE OF ENGLISH POSTAGE.

Some persons have supposed that the example of cheap postage in England had much to do in bringing about the reduction of postage here.

It undoubtedly did something to increase, among the people, the desire—(an unavailing desire of long standing)—for cheap postage. But it had but little effect upon Congress.

The English system went into operation January 10th, 1840; yet on January 10th, 1844, (four years after,) no change had been made in this country; and, so far as I am aware, no radical change had ever been proposed, or had many friends, in Congress. The reason was this. The diminished receipts, and the increased expenses, under the cheap system in England, caused a loss of about half their original revenue. This loss could be borne in England, because under their high rates their revenue had been about double their expenses. But in this country, the expenses had entirely consumed the revenue. And it was a fixed principle, with our [49] government, that the department should support itself. This principle was adhered to by Congress with bigoted tenacity. The English example, therefore, really operated upon the minds of a large portion of Congress, to deter them from a reduction. It was quoted, along with other statistics, as proving that a reduction of rates would be attended with a reduction of revenue; and consequently that no reduction of rates could be made consistently with the principle of making the department sustain itself.

It was only when opposition post offices were established, and the constitutional right of individuals to establish mails had begun to be the prevalent doctrine, and Congress saw that it was only at low rates that their mails could long get any considerable number of letters to carry, that they discovered that the principle of making the department support itself was about to operate differently from what it ever had done before, viz: in favor of low rates, rather than high ones. And it was for this reason, more than any other, that the act of 1845 was passed, as the debates show. The great argument in Congress, in favor of the reduction, was, not the blessings of cheap postage, but that, without a reduction, the department would inevitably be prostrated by competition.

HALE AND CO’S LETTER MAIL.

I have said before, in my letter to Mr. Phillips, that I was “the first to establish mails in avowed defiance of the authority of Congress,”—“on the principle that Congress had no Constitutional power to forbid the establishment of mails by the States, or by private individuals, in competition with the mails of the United States;” and “that I was the first to invite the government to test that question before the judicial tribunals.”

This renders it necessary that I should make an explanation in regard to the mails of Hale & Co.

The clandestine transmission of letters through the Expresses established for the transportation of packages and merchandise, had doubtless been carried on for years previous to 1844, [50] as appears by the Annual Reports of the P. M. General in 1841, (and document D. appended thereto,) 1842 and 1843.

A case of this kind was tried in New York, in November, 1843, before Judge Betts. On this trial, Judge Betts held that the statutes of Congress prohibiting the setting up of “any foot or horse post,” and forbidding “any stage coach, or other vehicle, packet boat or other vessel,” to carry letters, did not apply to passengers on board vessels and land carriages.

The omission to prohibit passenger posts was obviously accidental, occasioned by the fact that, at the time these statutes were passed, (1825 and 1827,) there were no railroads, and comparatively few steamboats in the country, and the facilities for establishing passenger posts had not become such as to attract the attention of Congress.

Under cover of this decision, that the letter of the laws then in existence did not apply to passengers, Hale and Kimball, as appears by their advertisement, commenced carrying letters, between New York and Boston, December 21, 1843, thirty-two days before my mails were started, and about twenty days before the publication of my argument.

The point of distinction between Hale & Co. and myself is this:

They made no denial of the validity of the then existing laws of Congress, or of the Constitutional power of Congress to pass other laws prohibiting passenger posts; they only evaded the plain design of the law, by availing themselves of an accidental omission in its letter, after the omission had been pointed out to them by Judge Betts. They acted within the letter of the law, although they violated its spirit. I denied and disproved, not only the validity of the then existing laws, but the Constitutional power of Congress to pass any other laws, prohibiting either passenger posts, or any other private posts, which individuals or the States might choose to set up on the highways of the nation. I established my mails avowedly on that principle, (as will appear from my advertisements, an extract from which is quoted on pages 24 and 25,)—published an argument in defence of it—sent copies of that argument to Congress, [51] and publicly challenged,* and privately invited, the P. M. General to test that question.

There was nothing in the movement of Hale & Co. to threaten the security of the government monopoly, or to coerce the government into a reduction of postage. Congress had only to supply the omission in the letter of the law, (as they could do in three lines,) so as to make it apply to passenger posts, as well as to “horse,” “foot,” and other private posts, and their monopoly would then have been perfectly safe as against Hale & Co.† And the action of Congress in 1843, (as has already been exhibited,) sufficiently proves that Congress would have supplied this omission, without making any very important reduction in the postage, had not the Constitutional question been raised. But the want of Constitutional power, which I alleged and proved, on the part of Congress, to pass any prohibitory laws at all, was an omission, which Congress could not supply; and this it was that opened the door to the general establishment of private mails throughout the country, and compelled a reduction, as the only means left of sustaining the Department.

It was not the evasions, either of the intent or the letter, of the existing laws, that alarmed Congress for the safety of their monopoly; for those evasions had been going on for years, as Congress were particularly informed by the P. M. General, as early as 1841. But it was, (as the P. O. Committee of the Senate said,) “the unblushing violation, and open defiance, of the laws,” and, (as the P. O. Committee of the House said,) “the impudent assumption that the government of the [52] United States had no Constitutional power to restrain or punish” the establishment of private mails,—that created the first effervescence in Congress. And it was this same “unblushing violation,” “open defiance,” and “impudent assumption,”—sustained, as they chanced to be, by argument which could not be met, by several of the most influential presses in the country, by the opinions of large numbers of the bar, by the intimation of Judge Story, by the declaration of Senator Woodbury, and doubtless also by the opinions of many other members of Congress who did not think it wise to express them in advance of a decision by the Supreme Court,—that compelled the general admission, on the part of Congress, that their iniquitous usurpations over the free transmission of intelligence could not be maintained, and that the only means by which the Post Office Department could be saved from prostration, was a reduction of postage.

That the P. M. General considered the mail of Hale & Co., and the grounds on which they acted, as of little or no importance, is evidenced by the fact that in his report, before given, in part, (p. 28,) although he goes into particulars in regard to my mails, he does not so much as mention Hale & Co., although they commenced carrying letters thirty days before I did.

In short, their mails were only a new form of evasion, involving no principle, and based on no denial of the authority of Congress, and could therefore be of no practical importance as coercive of a reduction of postage.

Endnotes

*

When it is considered that judges are always extremely reluctant to hold any legislation unconstitutional, and that the Supreme Court of the United States have never, except, I think, in one or two instances only, held a law of Congress unconstitutional,since the foundation of the government, I think those who knew Judge Story, will hardly suspect that he would thus have gone beyond the necessities of the case then before him, and thrown out so distinct an intimation against the power of the government, at a time too when his opinion would naturally have so much influence in encouraging the establishment of additional private mails, and in inducing the public to give them their support, to the prejudice of the revenues of the government, unless he were not only clear in his own mind on the question, but had also learned the opinions of his associates on the bench of the Supreme Court—(as he could hardly have failed to do—for that Court remained together at Washington some two or three months after the agitation of the question had commenced.)

*

“Were the question a new one.” The Constitution is the same now, on this point, that it was when it was “new,” and the constitutional question is, therefore, the same now that it would have been then.

*

The Postmaster General here misrepresents my proposed admission, by leaving out the most important part of it. Before starting my mails, I informed him of my intention to start them, and added,

“I shall be ready at any time to answer to any suit, which you may think it your duty to institute.

“Until I know the course intended to be pursued by the Department, I can of course give no assurance as to the defence I shall choose to make. I will say, however, that if an amicable suit only should be instituted, it is not my present intention to put you to any trouble in proving facts, or to take advantage of any defects in the existing law; but to meet the constitutional question fully and distinctly.”

Previous to this time, Judge Betts had decided that there was a loop-hole in the law prohibiting private posts, which prevented its applying to passengers on board public conveyances. Judges Story, Sprague, and Conklin subsequently confirmed this opinion, while it was controverted by Judges Randall and Heath. It was this defect, (which was sufficient for my defence), that I proposed to take no advantage of, if an amicable suit only should be instituted. But it was no part of his purpose to try the constitutional question—but only to break me down by brute force, without having either the law or the constitution on his side—and hence my proposal was declined.

*

In this report, the Postmaster General seeks to convey the impression that he considered my conduct plainly illegal. If he really did so consider it, it was his sworn duty to have me prosecuted; and he would have committed perjury in neglecting to do so—for the law which he was sworn to execute, required him to “prosecute offences against the post office establishment.” Yet, after my mails had been in operation some weeks, three or four, I think, an agent of the Department called upon my counsel, Josiah Howe, Esq., of New York City, and proposed that if I would then desist from conveying letters, no prosecutions should be instituted on account of those that had been carried. And it was only when this proposition was promptly and peremptorily rejected, that the prosecutions were commenced.

†

Undoubtedly “the law was the same in both (all) the States;” but the Judges in New York and Massachusetts, proved to be different from those in Maryland and Pennsylvania. The Postmaster General never obtained any verdicts in New York or Massachusetts. It is proper to say, however, that all the decisions were made upon the construction of the statute, and not upon the meaning of the constitution.

*

Extracted from the National Intelligencer and Congressional Globe.

*

See the full report of his Speech in the Tri-Weekly National Intelligencer of February 1, 1845.

*

So far as my advertisement, before mentioned, was such a challenge.

†

That Hale & Co. had no intention of contesting any principle, is evidenced not only by the fact that they made no denial of the power of Congress, when they commenced carrying letters, but also by the fact that the P. M. General, in his report, before given, (page 28,) makes no allusion to them, or to any one but myself, as having invited him to test the Constitutional question; and still further by the fact that, on the very day that the omission in the letter of the law was supplied, (so as to make it apply to passengers,) Hale & Co. abandoned their business—though their pockets were full of money—thus showing that they had no idea of spending any money in defence of any Constitutional principle, that was important to the public, or restrictive of the power of Congress.

T.9 Illegality of the Trial of John W. Webster (1850).↩

Title

[9.] Illegality of the Trial of John W. Webster (Boston: Bela Marsh, 1850).

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Text

ILLEGALITY of theTRIAL of JOHN W. WEBSTER.

[2]

Entered, according to Act of Congress, in the year 1850. By LYSANDER SPOONER, in the Clerk’s Office of the District Court of Massachusetts.

Wright’s Steam Press, 3 Water st.

[3]

ARGUMENT.

Dr. Webster was not tried by a legal jury; but by a jury packed, by the court, either with a view to a more easy conviction than could otherwise be obtained, or with a view to a conviction which otherwise could not be obtained at all.

The jury was packed by excluding from the panel three persons, on account of their opposition to capital punishment, and substituting in their stead three persons not thus opposed. That opposition, it was supposed by the court, (and correctly too, of course), would either render the persons entertaining it less ready to convict the defendant, than they otherwise would be; or would prevent them from convicting at all, whatever the evidence might be.

But exclusion for either or both of these reasons is illegal. If the punishment prescribed by statute, be such as to disincline, or deter, the minds or consciences of the men drawn as jurors, from a conviction, the statute must fail of execution, rather than the jury be packed to avoid that obstacle.

Even if the persons, drawn as jurors, should themselves request to be excused from serving, or should even refuse to be sworn, on the ground that they could not conscientiously render a verdict “according to the evidence,” if that verdict were to be followed by the penalty of death, still the court could not discharge them. The trial must, in the [4] first place, be postponed until a subsequent term of the court, and until an entire new jury be drawn. If this new jury should have among them persons entertaining the same scruples, as those drawn at the former term, the trial must be again postponed; and so on, from term to term, until a jury, drawn in the usual way, shall be found, who will consent to be sworn to try the case. If such a jury cannot be obtained at all, then the trial must be postponed until the statute, prescribing the punishment of death, be repealed, and such a penalty substituted, as jurors will all consent to aid in enforcing. In no event, and for no reason whatever, can the jury be packed, in the manner it was done in Dr. Webster’s case, for that is destroying the trial by jury itself,—as I will now proceed to show.

The trial by jury is a trial by “the country,” in contradistinction to a trial by the government. The jurors are drawn by lot from the mass of the people, for the very purpose of having all classes of minds and feelings, that prevail among the people at large, represented in the jury. They are drawn by lot from the mass of the people, for the very purpose of making the jury a fair epitome, mentally and morally, of “the country,”—that is, of the whole country.

A tribunal, thus selected, is supposed to be a more just, impartial, and competent tribunal, than the government itself, or any department of it would be. And unanimity, on the part of the members of this tribunal, is required, in order that no man may be punished or condemned, unless the whole country, (so far as that is supposed to be fairly represented [5] by the jury), shall concur in the conviction and punishment. This concurrence of the whole “country,” as a condition of conviction and punishment, is required from motives of both justice and caution towards the life, liberty, property, and character of the person accused. It is supposed that if any portion of “the country,” (as represented in the jury), dissent from the conviction or punishment, that dissent gives sufficient reason at least to doubt the propriety or justice of such conviction or punishment.

Now it is clear, that if the government can exclude, on account either of their opinions or feelings, any persons thus drawn by lot, the trial is no longer a trial by “the country,” but only by a portion of the country. It is, in fact, a trial by the government, instead of “the country,”—because it is a trial by that portion only of the country, which has been selected by the government, on account of their having no opinions or feelings different from its own.

Such an exclusion, therefore, works the abolition of the trial by jury itself,—because it works the abolition of the trial by “the country,” and institutes a trial by the government,—or, what is the same thing, a trial by persons selected by the government, on account of their concurrence in, or their subservience to, its own opinions and feelings.

Whenever, therefore, the government presumes even to question the persons drawn as jurors, as to whether they entertain any opinions or feelings different from those entertained by the government, (as the latter are expressed in the statute book), [6] and says to one “be sworn,” and to another “stand aside,” (according as he concurs with, or dissents from, the opinions or feelings of the government), the government manifestly assumes to abolish the trial “by the country,” and to institute a new tribunal, constituted solely of persons specially selected by the government, on account of their readiness to carry out the purposes of the government.

But it will be said that the difference of opinion, between the government and the individual—(which constitutes the ground, on which the former excludes the latter from the panel)—is a difference about that, with which the juror has nothing to do, to wit, the punishment, and not the guilt, of the accused person.

There are two answers to this objection:

1. The conviction is sought—or rather the guilt or innocence of the accused person is sought to be ascertained—mainly, if not solely, with a view to his punishment, if he be found guilty. Punishment, or no punishment, then, is the practical question at issue. Conviction is but a means, punishment the end. The former has reference, wholly, or nearly so, to the latter. Now, it is to be observed that, in law, means are rarely considered independently of ends. They are never authorized, independently of ends. The difference between them, then, is theoretical, rather than practical. Although, therefore, there may be a theoretical distinction between the question of conviction, and the question of punishment, there can hardly be said to be any practical, or even legal, difference between them.

[7]

2. Admitting, for the sake of the argument, a clear legal distinction between the question of guilt, and the question of punishment, it does not follow that the former is to be determined without any reference to the latter. The law does not require a man to cease to be a man, and act without regard to consequences, when he becomes a juror. The courts themselves, at the same time that they exclude one man from the panel because he looks forward to the consequences of a conviction, will yet instruct those who remain on the panel, that they are to scrutinize the testimony with all that caution which the momentous results of their decision naturally dictate. No court presumes to tell a jury that they are to try a capital case with the same indifference and unconcern as to consequences, that they would a case where the results of their decision would be less important. On the contrary, all courts usually press upon a jury a solemn consideration of the consequences involved, as a motive to the exercise of unusual, and even extreme, caution. But in so doing, it is plain that they act upon an entirely opposite principle from that on which they acted in excluding individuals from the panel. Because these latter individuals looked forward to the consequences of their decision, and felt a little more sensibility to those consequences than the statute requires, or the government approves, the government excludes them; while, at the same time, the government instructs those who remain on the panel, that they are to keep these consequences in view, and act with corresponding caution.

The result, therefore, is, that the government—when [8] it affixes the penalty of death to the commission of a crime, and excludes a man from the panel on account of his views of that penalty—virtually assumes to set up a standard of sensibility, in regard to the matter in issue, beyond which a juror may not go. And the consequence is, that the accused person is tried, not by “the country”—not by persons who fairly represent all the degrees of sensibility, which prevail among the people at large—but by persons selected by the government for no other reason than that they lack that degree of sensibility, touching the matter in issue, which a greater or less portion of “the country” possess. To select a jury on this principle, is nothing more nor less than packing a jury,—in the worst sense of that term. What is ever the object of packing a jury, but to get rid of all persons, whose sensibilities will be likely to thwart the purposes of the government? that is, defeat (or secure, as the case may be) the conviction and punishment of the accused, contrary to the wishes of the government?

The provision of the Bill of Rights, which guarantees to every man a trial by “the country,” does not say that he shall be tried by such portions only of the country as possess but a statutory degree of sensibility—a degree of sensibility not incompatible with the efficiency of such penal codes as may be enacted by the legislature—but by “the country” unreservedly—by “the country” with all its sensibilities. And if it happen that those sensibilities are such as that any persons, drawn as jurors, either will not try, or will not convict, where death is the penalty to follow, then the statute affixing that penalty [9] must be so changed as to conform to the sensibilities of the country, or it must become a dead letter, and criminals go unpunished, and even untried, rather than the trial “by the country” be abolished, and a trial by the government be substituted. Otherwise the statute prevails over the Bill of Rights.

Whenever the statute, that affixes the penalty, and the Bill of Rights, which guarantees a trial “by the country,” are found to be practically incompatible with each other, the latter, being the paramount law, must prevail. But the government, by excluding a part of “the country” from the panel, in order that the statute may have effect, virtually say that the statute must prevail over the Bill of Rights.

It may here be mentioned, in passing, that it seems never to have occurred to the government, that if they assume to set up a statutory standard of sensibility for jurors, and to exclude from the panel all men, whose sensibilities rise above that standard, they ought to be equally bound to exclude all whose sensibilities fall below it. But they make no inquisition in that direction.

But, in truth, opposition to capital punishment does not necessarily imply any unusual degree of sensibility. It may result solely from the conviction—founded on the incontestible experience of mankind—that there is no such certainty in human testimony, as to secure the innocent from suffering the penalty designed only for the guilty. In multitudes of cases, where the accused were innocent, the evidence has nevertheless been so strong as to [10] justify, and even to require, a conviction, if the principle be admitted that human testimony is, in its nature, sufficiently certain to justify or require a conviction, that is to be followed by the penalty of death. A person, therefore, may be opposed to capital punishment for this reason alone—a reason that implies a deliberate and philosophical estimate of the weight of human testimony. Yet, all those, who thus weigh the evidence a little more philosophically, and in the light of a wider observation, than the government, must be excluded. Is such a principle to be tolerated? One of the very objects of the trial by jury, is to have the evidence weighed differently from what it is supposed the government might weigh it. Yet now, because a man thus weighs it, he is excluded from the panel.

Again. It is not only a supposable case, but a highly probable one, that a person may be opposed to the death penalty, on the ground that it is a “cruel punishment,” (and if unnecessary, it is “cruel,”) and that therefore the government has no constitutional right to inflict it—“cruel punishments” being expressly prohibited by the Bill of Rights. In that case a man would be excluded from the panel simply for forming a different opinion from the government, on a question as to the constitutional powers of the government. If such a principle prevail, all barriers, interposed by a jury, not only to the infliction of “cruel punishments,” but to the assumption, by the government, of all manner of unconstitutional authority, are swept away.

The question has thus far been discussed on the [11] supposition that the question of punishment, and the question of guilt, are distinct—and that, in strict law, the jury are judges only of the latter. And I take it for granted that it has been shown, that even under that supposition, men cannot be excluded from the panel by the government, in order that the will of the government, (as expressed in its criminal code), may escape the influence and the veto of that moral law, and that law of human nature, which require and compel all men, jurors as well as others, to regard more or less the consequences that are to follow their actions. If the criminal code be practically inconsistent with that law of human nature, and theoretically inconsistent with the moral law, as this is understood by any considerable portion of “the country,” the code must give way to, or be made to conform to, those higher laws, or the “trial by the country” must be abandoned.

But, in fact, the position is not a true one, that the jury have legally nothing to do with the question of punishment, but only with the question of guilt. The language of Magna Charta is equally explicit on the point of punishment, as on that of conviction; and it provides as clearly that a man shall not be punished, but by “the judgment of his peers,” as that he shall not be condemned but by the same “judgment.” These are the words of Magna Charta:

“No freeman shall be arrested, or imprisoned, or deprived of his freehold, or his liberties, or free customs, or be outlawed, or exiled, or in any manner destroyed; nor will we pass upon him, nor [12] condemn him, unless by the legal judgment of his peers, or the law of the land.”*

Here are plainly two clauses in this chapter of Magna Charta—two distinct provisions. The first relates to the arrest and punishment, the other to the conviction. That they are distinct clauses, is proved by the fact that they are separated from each other by the disjunctive “nor.” Thus, “No freeman shall be arrested, imprisoned, or deprived of his freehold, or his liberties, or free customs, or be outlawed, or exiled, or in any manner destroyed;” (all the preceding words are but saying that no freeman shall be arrested or punished;) “nor will we pass upon him, nor condemn him, but by the judgment of his peers, or the law of the land.”

It is plain that “the judgment of his peers” goes to the whole question, and to the separate questions, of punishment and guilt.

And this is as it should be. The trial by jury was intended to be—what it has so often been denominated—“the palladium of liberty;” the great bulwark for the protection of individuals against the oppression of the government. But it would be but a partial and imperfect protection against that oppression, if the “judgment” of the jury, as to the degree of punishment to be inflicted, could not be interposed between the convict and the government. [13] The government could punish the slightest offences in the most cruel and unreasonable manner. The people, as single individuals, need protection against cruel and unreasonable punishments, as well as against unjust condemnations. And they can secure this protection only on the principles here contended for.

If there could be any doubt as to the meaning of the language of Magna Charta, on this point, that doubt would be settled by an established rule of interpretation, which courts are bound to apply to all laws and legal instruments whatsoever, viz., that we are to get as much good out of a law, (or other legal instrument,) as possible; that is, that we are to make its words mean as much good, (in connexion with the matter of which they are treating,) as they can fairly be made to mean. Interpreted by this rule, this chapter of Magna Charta is explicit beyond cavil, to the point that the “judgment” of the jury shall be had on the question of punishment, as well as on the question of guilt.

The spirit of the provision undoubtedly requires that “the judgment” of the jury shall be taken on the question of punishment separately from the question of guilt. But where a juror, knowing the extent of the punishment authorized by the statute, consents to try a case, and renders his verdict without offering any objection to that punishment, his consent to it may, perhaps, be fairly inferred. But where he refuses to try the case, solely because he disapproves of such punishment, his consent is clearly withheld.

[14]

The Bill of Rights of Massachusetts, is, if possible, more explicit than Magna Charta in submitting the question of punishment to the “judgment” of the jury; indeed, the first clause on the subject, in terms, makes the whole trial, (so far as the jury are concerned,) a question of punishment, rather than of guilt. That clause, it will be seen, uses no terms that express conviction of guilt, as a separate thing from punishment. It does not say, like Magna Charta, that no man shall be “passed upon, nor condemned;” it only says that no subject shall be arrested or punished. It is only in the second paragraph that the trial of his guilt by a jury is clearly provided for.

These are the words:

“No subject shall be arrested, imprisoned, despoiled or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled, or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land.

“And the government shall not make any law that shall subject any person to a capital or infamous punishment, except for the government of the army and navy, without trial by jury.”

The language of the first of these paragraphs seems to be explicit, that the jury are to pass upon the question of punishment, and I take it for granted that it settles the question.*

[15]

To conclude. It is plain, that if the more humane and conscientious persons can be discharged from the panel, on account of their revolting against the barbarity of the laws, which they are called upon to aid in enforcing, an accused person does not have a trial by “the country,” but only by the more inhuman and unfeeling portion of it.

Suppose the statute were to prescribe the penalty of death for a theft of forty shillings, (as it has sometimes done in England.) Probably not one man in ten in this Commonwealth would consent to be sworn to try a person accused of such a theft. In such a case, could all the men who were thus scrupulous, be excluded from the panel, or even be discharged at their own request, until a jury were packed entirely of men so brutal as to be willing to have a man hanged for stealing forty shillings? Certainly not, I think. And if not, then men cannot be discharged at all, on account of their opposition to such penalties as may be prescribed by statute; and whenever men, drawn as jurors, refuse to be sworn to try a case, on account of the penalty annexed to the offence to be tried, the trial must, in the first instance, be postponed until, at some subsequent term of the court, a jury drawn in the usual way, shall be found, who will swear to try the case. If such a jury can never be found, the trial must stop, until that penalty be changed for [16] such a one as all men, drawn as jurors, can conscientiously assent to.

If the doctrine here attempted to be maintained be correct, the trial by jury secures a merciful criminal code—such a code as “the country,” (as represented in a jury drawn by lot from the great body of the people,) can conscientiously aid in enforcing. If the doctrine be erroneous, we have no such security. We can have only such a code as a bare majority of the people may chance to approve; and all that justice and tenderness towards life, liberty, property, and character, which has heretofore forbidden the condemnation of an accused person, so long as any portion of the “country,” (as represented in a jury drawn by lot,) doubted his guilt, or disapproved his punishment, must give place to a sternness, not to say ferocity, which packs a jury with a special view to a more easy conviction, or a heavier penalty, than could otherwise be obtained or inflicted.

In Dr. Webster’s case, three persons, equal to one fourth of the jury, were excluded from the panel, on account of their opposition to the death penalty. These three persons, it is fair to presume, represented a corresponding portion of the community, that is, one fourth of the whole. Thus one fourth of “the country” were virtually disfranchised of their constitutional right to be heard, both on the question of the guilt, and the question of the punishment, of one of their fellow men. Will so large a portion of the community acquiesce in such a disfranchisement?

Endnotes

*

The phrase, “By the law of the land,” (say Coke, Kent, Story, and others,) does not mean a statute passed by a legislature—(for then this clause would impose no restraint upon the Legislature)—but is a technical phrase, meaning, “by the due course and process of law,” which Coke afterwards explains to be, “by indictment or presentment of good and lawful men, where such deeds be done, in due manner, or by writ original of the common law,” &c. &c. 2 Coke’s Institutes, 45, 50; 2 Kent’s Comm. 13; 3 Story’s Comm. 661; 4 Hill’s Rep. 146: 19 Wendell, 676; 4 Dev. N. C. Rep. 15.

*

Because the jury pass upon the question of punishment, it must not be supposed, if they award any particular punishment, or degree of punishment, that their decision is necessarily final, any more than that their verdict that he is guilty is necessarily final. A man may be relieved of the punishment by the executive, or acquitted of the guilt by the judiciary, (on a question of law being raised,) notwithstanding the “judgment” of the jury. But he cannot be convicted of the guilt, nor subjected to the punishment, against their judgment. Their judgment is indispensable to his conviction and punishment; but it is not indispensable to his acquittal and discharge. Thus, if their judgment be in his favor, it is final; the government cannot appeal from it; but if it be against him, he may appeal to the judiciary on the question of guilt, and to the executive, (and to the judiciary also, if the legislature so provide,) on the question of punishment.

T.10 A Defence for Fugitive Slaves, against the Acts of Congress (1850).↩

Title

[10.] A Defence for Fugitive Slaves, against the Acts of Congress of February 12, 1793, and September 18, 1850 (Boston: Bela Marsh, 1850).

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Text

Act of Congress of 1793.

An Act respecting Fugitives from Justice, and persons escaping from the service of their Masters.

Sec. 1. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That whenever the executive authority of any State in the Union, or of either of the territories northwest or south of the river Ohio, shall demand any person as a fugitive from justice, of the executive authority of any such state or territory to which such person shall have fled, and shall moreover produce the copy of an indictment found, or an affidavit made before a magistrate of any state or territory as aforesaid, charging the person so demanded, with having committed treason, felony or other crime, certified as authentic by the governor or chief magistrate of the state or territory from whence the person so charged, fled, it shall be the duty of the executive authority of the state or territory to which such person shall have fled, to cause him or her to be arrested and secured, and notice of the arrest to be given to the executive authority making such demand, or to the agent of such authority appointed to receive the fugitive, and to cause the fugitive to be dellvered to such agent when he shall appear: But if no such agent shall appear within six months from the time of the arrest, the prisoner may be discharged. And all costs or expenses incurred in the apprehending, securing, and transmitting such fugitive to the state or territory making such demand, shall be paid by such state or territory.

Sec. 2. And be it further enacted, That any agent appointed as aforesaid, who shall receive the fugitive into his custody, shall be empowered to transport him or her to the state or territory from which he or she shall have fled. And if any person or persons shall by force set at liberty, or rescue the fugitive from such agent while transporting, as aforesaid, the person or persons so offending shall, on conviction, be fined not exceeding five hundred dollars, and be imprisoned not exceeding one year.

Sec. 3. And be it also enacted, That when a person held to labor in any of the United States, or in either of the territorles on the northwest or south of the river Ohio, under the laws thereof, shall escape into any other of the said states or territory, the person to whom such labor or service may be due, his agent or attorny, is hereby empowered to seize or arrest such fugitive from labor, and to take him or her before any judge of the Circuit or District Courts of the United States, residing or being within the state, or before any magistrate of a county, city or town corporate, wherein such seizure or arrest shall be made, and upon proof to the satisfaction of such judge or magistrate, either by oral testimony or affidavit taken before and certified by a magistrate of any such state or territory, that the person so seized or arrested, doth, under the laws of the state or territory from which he or she fled, owe service or labor to the person claiming him or her, it shall be the duty of such judge or magistrate to give a certificate thereof to such claimant, his agent or attorney, which shall be sufficient warrant for removing the said fugitive from labor, to the state or territory from which he or she fled.

Sec. 4. And be it further enacted, That any person who shall knowingly and willingly obstruct or hinder such claimant, his agent or attorney when so arrested pursuant to the authority herein given or declared: or shall harbor or conceal such person after notice that he or she was a fugitive from labor, as aforesaid, shall, for either of the said offences, forfeit and pay the sum of five hundred dollars. Which penalty may be recovered by and for the benefit of such claimant, by action of debt, in any court proper to try the same; saving moreover to the person claiming such labor or service, his right of action for or on account of the said injuries or either of them.

JONATHAN TRUMBULL,

Speaker of the House of Representatives.

JOHN ADAMS,

Vice President of the United States, and President of the Senate,

Approved

February 12th, 1793

.

GEORGE WASHINGTON,

President of the United States.

Act of Congress of 1850.

An Act to amend, and supplementary to the Act, entitled “An Act respecting Fugitives from Justice, and persons escaping from the service of their Masters,” approved February 12, 1793.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the persons who have been, or may hereafter be, appointed commissioners, in virtue of any act of Congress, by the circuit courts of the United States, and who, in consequence of such appointment, are authorized to exercise the powers that any justice of the peace or other magistrate of any of the United States may exercise in respect to offenders for any crime or offence against the United States, by arresting, imprisoning, or balling the same under and by virtue of the thirty-third section of the act of the twenty-fourth of September, seventeen hundred and eighty-nine, entitled, “An act to establish the judicial courts of the United States,” shall be, and are hereby authorized and required to exercise and discharge all the powers and duties conferred by this act.

Sec. 2. And be it further enacted, That the superlor court of each organized territory of the United States shall have the same power to appoint commissioners to take acknowledgments of ball and affidavit, and to take depositions of witnesses in civil causes, which is now possessed by the circuit courts of the United States; and all commissioners who shall hereafter be appointed for such purposes by the superior court of any organized territory of the United States shall possess all the powers and exercise all the duties conferred by law upon the commissioners appointed by the circuit courts of the United States for similar purposes, and shall moreover exercise and discharge all the powers and duties conferred by this act.

Sec. 3. And be it further enacted, That the circuit courts of the United States, and the superior courts of each organized territory of the United States, shall from time to time enlarge the number of commissioners, with a view to afford reasonable facilities to reclaim fugitives from labor, and to the prompt discharge of the duties imposed by this act.

Sec. 4. And be it further enacted, That the commissioners above named shall have concurrent jurisdiction with the judges of the circuit and district courts of the United States, in their respective circuits and districts within the several States, and the judges of the superior courts of the Territories, severally and collectively, in term time and vacation; and shall grant certificates to such claimants, upon satisfactory proof being made, with authority to take and remove such fugitives from service or labor, under the restrictions herein contained, to the State or Territory from which such persons may have escaped or fled.

Sec. 5. And be it further enacted, That it shall be the duty of all marshals and deputy marshals to obey and execute all warrants and precepts issued under the provisions of this act, when to them directed; and should any marshal or deputy marshal refuse to receive such warrant or other process, when tendered, or to use all proper means diligently to execute the same, he shall, on conviction thereof, be fined in the sum of one thousand dollars to the use of such claimant, on the motion of such claimant, by the circuit or district court for the district of such marshal: and after arrest of such fugitive by such marshal or his deputy, or whilst at any time in his custody, under the provisions of this act, should such fugitive escape, whether with or without the assent of such marshal or his deputy, such marshal shall be liable, on his official bond, to be prosecuted for the benefit of such claimant, for the full value of the service or labor of said fugitive in the State, Territory, or district whence he escaped; and the better to enable the said commissioners, when thus appointed, to execute their duties faithfully and efficiently, in conformity with the requirements of the constitution of the United States and of this act, they are hereby authorized and empowered, within their counties respectively, to appoint in writing under their hands, any one or more suitable persons, from time to time, to execute all such warrants and other process as may be issued by them in the lawful performance of their respective duties; with an authority to such commissioners, or the persons to be appointed by them, to execute process as aforesaid, to summon and call to their aid the bystanders, or posse comitatus of the proper county, when necessary to insure a faithful observance of the clause of the constitution referred to, in conformity with the provisions of this act; and all good citizens are hereby commanded to aid and assist in the prompt and efficient execution of this law, whenever their services may be required, as aforesaid, for that purpose; and said warrants shall run and be executed by said officers anywhere in the State within which they are issued.

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Sec. 6. And be it further enacted, That when a person held to service or labor in any State or Territory of the United States has heretofore or shall hereafter escape into another State or Territory of the United States, the person or persons to whom such service or labor may be due, or his, her, or their agent or attorney, duly authorized, by power of attorney, in writing, acknowledged and certified under the seal of some legal office or court of the State or Territory in which the same may be executed, may pursue and reclaim such fugitive person, either by procuring a warrant from some one of the courts, judges, or commissioners aforesaid, of the proper circuit, district or county, for the apprehension of such fugitive from service or labor, or by seizing and arresting such fugitive where the same can be done without process, and by taking and causing such person to be taken forthwith before such court, judge or commissioner, whose duty it shall be to hear and determine the case of such claimant in a summary manner; and upon satisfactory proof being made, by deposition or affidavit, in writing, to be taken and certified by such court, judge, or commissioner, or by other satisfactory testimony, duly taken and certified by some court, magistrate, justice of the peace, or other legal officer authorized to administer an oath and take depositions under the laws of the State or Territory from which such person owing service or labor may have escaped, with a certificate of such magistracy or other authority, as aforesaid, with the seal of the proper court or officer thereto attached, which seal shall be sufficient to establish the competency of the proof, and with proof, also by affidavit, of the identity of the person whose service or labor is claimed to be due as aforesaid, that the person so arrested does in fact owe service or labor to the person or persons claiming him or her, in the State or Territory from which such fugitive may have escaped as aforesaid, and that said person escaped, to make out and deliver to such claimant, his or her agent or attorney, a certificate setting forth the substantial facts as to the service or labor due from such fugitive to the claimant, and of his or her escape from the State or Territory in which such service or labor was due to the State or Territory in which he or she was arrested, with authority to such claimant, or his or her agent or attorney, to use such reasonable force and restraint as may be necessary under the circumstances of the case, to take and remove such fugitive person back to the State or Territory from whence he or she may have escaped as aforesaid. In no trial or hearing under this act shall the testimony of such alleged fugitive be admitted in evidence; and the certificates in this and the first section mentioned shall be conclusive of the right of the person or persons in whose favor granted to remove such fugitive to the State or Territory from which he escaped, and shall prevent all molestation of said person or persons by any process issued by any court, judge, magistrate, or other person whomsoever.

Sec. 7. And be it further enacted, That any person who shall knowingly and willingly obstruct, hinder, or prevent such claimant, his agent or attorney, or any person or persons lawfully assisting him, her, or them, from arresting such fugitive from service or labor, either with or without process as aforesaid; or shall rescue, or attempt to rescue, such fugitive from service or labor, from the custody of such claimant, his or her agent or attorney, or other person or persons lawfully assisting as aforesaid, when so arrested, pursuant to the authority herein given and declared; or shall aid, abet, or assist such person, so owing service or labor as aforesaid, directly or indirectly, to escape from such claimant, his agent or attorney, or other person or persons, legally authorized as aforesaid; or shall harbor or conceal such fugitive, so as to prevent the discovery and arrest of such person, after notice or knowledge of the fact that such person was a fugitive from service or labor as aforesaid, shall, for either of said offences, be subject to a fine not exceeding one thousand dollars, and imprisonment not exceeding six months, by indictment and conviction before the district court of the United States for the district in which such offence may have been committed, or before the proper court of criminal jurisdiction, if committed within any one of the organized Territories of the United States; and shall moreover forfeit and pay, by way of civil damages to the party injured by such illegal conduct, the sum of one thousand dollars for each fugitive so lost as aforesaid, to be recovered by action of debt in any of the district or territorial courts aforesaid, within whose jurisdiction the said offence may have been committed.

Sec. 8. And be it further enacted, That the marshals, their deputies, and the clerks of the said district and territorial courts, shall be paid for their services the like fees as may be allowed to them for similar services in other cases; and where such services are rendered exclusively in the arrest, custody, and delivery of the fugitive to the claimant, his or her agent or attorney, or where such supposed fugitive may be discharged out of custody for the want of sufficient proof as aforesaid, then such fees are to be paid in the whole by such claimant, his agent or attorney; and in all cases where the proceedings are before a commissioner, he shall be entitled to a fee of ten dollars in full for his services in each case, upon the delivery of the said certificate to the claimant, his or her agent or attorney; or a fee of five dollars in cases where the proof shall not, in the opinion of such [4] commissioner, warrant such certificate and delivery, inclusive of all services incident to such arrest and examination, to be paid in either case by the claimant, his or her agent or attorney. The person or persons authorized to execute the process to be issued by such commissioners for the arrest and detention of fugitives from service or labor as aforesaid, shall also be entitled to a fee of five dollars each for each person he or they may arrest and take before any such commissioner as aforesaid at the instance and request of such claimant, with such other fees as may be deemed reasonable by such commissioner for such other additional services as may be necessarily performed by him or them: such as attending to the examination, keeping the fugitive in custody, and providing him with food and lodging during his detention, and until the final determination of such commissioner: and in general for performing such other duties as may be required by such claimant, his or her attorney or agent, or commissioner in the premises; such fees to be made up in conformity with the fees usually charged by the officers of the courts of justice within the proper district or county, as near as may be practicable, and paid by such claimants, their agents or attorneys, whether such supposed fugitive from service or labor be ordered to be delivered to such claimants by the final determination of such commissioners or not.

Sec. 9. And be it further enacted, That upon affidavit made by the claimant of such fugitive, his agent or attorney, after such certificate has been issued, that he has reason to apprehend that such fugitive will be rescued by force from his or their possession before he can be taken beyond the limits of the State in which the arrest is made, it shall be the duty of the officer making the arrest to retain such fugitive in his custody, and to remove him to the State whence he fled, and there to deliver him to said claimant, his agent or attorney. And to this end the officer aforesaid is hereby authorized and required to employ so many persons as he may deem necessary, to overcome such force, and to retain them in his service so long as circumstances may require; the said officer and his assistants, while so employed, to receive the same compensation, and to be allowed the same expenses as are now allowed by law for the transportation of criminals, to be certified by the judge of the district within which the arrest is made, and paid out of the treasury of the United States.

Sec. 10. And be it further enacted, That when any person held to service or labor in any State or Territory, or in the District of Columbia, shall escape therefrom, the party to whom such service or labor shall be due, his, her, or their agent or attorney, may apply to any court of record therein, or judge thereof in vacation, and make satisfactory proof to such court, or judge in vacation, of the escape aforesaid, and that the person escaping owed service or labor to such party. Whereupon the court shall cause a record to be made of the matters so proved, and also a general description of the person so escaping, with such convenient certainty as may be; and a transcript of such record authenticated by the attestation of the clerk, and of the seal of the said court, being produced in any other State, Territory, or District in which the person so escaping may be found, and being exhibited to any judge, commissioner, or other officer authorized by the law of the United States to cause persons escaping from service or labor to be delivered up, shall be held and taken to be full and conclusive evidence of the fact of escape, and that the service or labor of the person escaping is due to the party in such record mentioned. And upon the production by the said party of other and further evidence, if necessary, either oral or by affidavit, in addition to what is contained in the said record, of the identity of the person escaping, he or she shall be delivered up to the claimant. And the said court, commissioner, judge, or other person authorized by this act to grant certificates to claimants of fugitives, shall, upon the production of the record and other evidences aforesaid, grant to such claimant a certificate of his right to take any such person identified and proved to be owing service or labor as aforesaid, which certificate shall authorize such claimant to seize or arrest and transport such person to the State or Territory from which he escaped: Provided, That nothing herein contained shall be construed as requiring the production of a transcript of such record as evidence as aforesaid; but in its absence, the claim shall be heard and determined upon other satisfactory proofs competent in law.

HOWELL COBB,

Speaker of the House of Representatives.

WILLIAM R. KING,

President of the Senate, pro tempore.

Approved

September 18th, 1850

.

MILLARD FILLMORE.

A DEFENCE

for

FUGITIVE SLAVES,

against the acts of congress of february 12, 1793, and september 18, 1850.

BY LYSANDER SPOONER.

BOSTON:

BELA MARSH, 25 CORNHILL,

1850.

Entered according to Act of Congress, in the year 1850,

By LYSANDER SPOONER,

in the Clerk’s Office of the District Court of Massachusetts.

CONTENTS.

- CHAPTER I. Unconstitutionality of the acts of Congress of 1793 and 1850, . . page. 5

- CHAPTER II. The Right of Resistance, and the Right to have the Legality of that Resistance judged of by a Jury, . . . . . . 27

- CHAPTER III. Liability of United States Officers to be punished, under the State Laws, for executing the acts of 1793 and 1850, . . . 43

- Appendix A. Neither the Constitution, nor either of the Acts of Congress of 1793 or 1850, requires the Surrender of Fugitive Slaves, . . . 50

- Appendix B. Authorities for the Right of the Jury to judge of the Law, . . 61

- Appendix C. Mansfield’s argument against the Right of the Jury to judge of the Law, . . . . . . . . . . . 67

- Appendix D. Effect of Trial by Jury, in nullifying other Legislation than the Fugitive Slave Laws, . . . . . . . . 69

A DEFENCE FOR FUGITIVE SLAVES.

CHAPTER I.: Unconstitutionality of the Acts of Congress of 1793 and 1850.

section 1.

Admitting, for the sake of the argument—what is not true in fact—that the words, “person held to service or labor,” are a legal description of a slave, and that the clause of the Constitution in reference to such persons, and the Act of Congress of 1793, and the supplementary Act of 1850, for carrying that clause into effect, authorize the delivery of fugitive slaves to their masters—said acts (considered as one,) are nevertheless unconstitutional, in at least seven particulars, as follows:—

1. They authorize the delivery of the slaves without a trial by jury.

2. The Commissioners appointed by the Act of 1850, are not constitutional tribunals for the adjudication of such cases.

3. The State magistrates, authorized by the Act of 1793, to deliver up fugitives from service or labor, are not constitutional tribunals for that purpose.

4. The Act of 1850 is unconstitutional, in that it authorizes cases to be decided wholly on ex parte testimony.

5. The provisions of the Act of 1850, requiring the exclusion of certain evidence, are unconstitutional.

6. The requirement of the Act of 1850, that the cases be adjudicated “in a summary manner,” is unconstitutional.

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7. The prohibition, in the Act of 1850, of the issue of the writ of Habeas Corpus for the relief of those arrested under the act, is unconstitutional.

These several points I propose to establish.

section 2.: Denial of a Trial by Jury.*

Neither the Act of 1793, nor that of 1850, allows the alleged slave a trial by jury. So far as I am aware, the only argument, worthy of notice, that has ever been offered against the right of an alleged fugitive slave to a trial by jury, is that given by Mr. Webster, in his letter to certain citizens of Newburyport, dated May 15, 1850, as follows:—

“Nothing is more false than that such jury trial is demanded, in cases of this kind, by the constitution, either in its letter or in its spirit. The constitution declares that in all criminal prosecutions, there shall be a trial by jury; the reclaiming of a fugitive slave is not a criminal prosecution.

“The constitution also declares that in suits at common law, the trial by jury shall be preserved; the reclaiming of a fugitive slave is not a suit at the common law; and there is no other clause or sentence in the constitution having the least bearing on the subject.”

In saying that “the reclaiming of a fugitive slave is not a criminal prosecution,” Mr. Webster is, of course, correct. But in saying that “the reclaiming of a fugitive slave is not a suit at the common law,” within the meaning of the constitutional amendment, that secures a jury trial “in suits at common law,” he raises a question, which it will require something more than his simple assertion to settle.

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To determine whether the reclaiming of a fugitive slave is a “suit at common law,” within the meaning of the above amendment to the constitution, it is only necessary to define the terms “suit” and “common law,” as used in the amendment, and the term “claim,” as used in that clause of the constitution, which provides that fugitives from service and labor “shall be delivered up on claim of the person to whom such service or labor may be due.”

All these terms have been defined by the Supreme Court of the United States. Their definitions are as follows:

In the case of Prigg vs. Pennsylvania, the court say—

“He (the slave) shall be delivered up on claim of the party to whom such service or labor may be due. * * * A claim is to be made. What is a claim? It is, in a just juridical sense, a demand of some matter, as of right, made by one person upon another, to do, or to forbear to do, some act or thing as a matter of duty. A more limited, but at the same time an equally expressive definition was given by Lord Dyer, as cited in Stowell vs. Zouch, Plowden 359; and it is equally applicable to the present case; that ‘a claim is a challenge by a man of the propriety or ownership of a thing which he has not in his possession, but which is wrongfully detained from him.’ The slave is to be delivered up on the claim.”—16 Peters 614-15.

In Cohens vs. Virginia, the court say:

“What is a suit? We understand it to be the prosecution, or pursuit, of some claim, demand, or request. In law language, it is the prosecution of some demand in a court of justice. ‘The remedy for every species of wrong is,’ says Judge Blackstone, ‘the being put in possession of that right whereof the party injured is deprived.’ The instruments whereby this remedy is obtained, are a diversity of suits and actions, which are defined by the Mirror to be ‘the lawful demand of one’s right;’ or, as Bracton and Fleta express it, in the words of Justinian, ‘jus prosequendi in judicio quod alicui debetur,’—(the form of prosecuting in trial, or judgment, what is due to any one.) Blackstone then proceeds to describe every species of remedy by suit; and they are all cases where the party sueing claims to obtain something to which he has a right.

“To commence a suit, is to demand something by the institution of process in a court of justice; and to prosecute the [8] suit, is, according to the common acceptation of language, to continue that demand.”—6 Wheaton 407-8.

In the case of Parsons vs. Bedford et. al., the court define the term “common law,” with special reference to its meaning in the amendment to the constitution, which secures the right of trial by jury “in suits at common law.” The court say:

“The phrase ‘common law,’ found in this clause, is used in contradistinction to equity, and admiralty, and maritime jurisprudence. The constitution had declared in the third article, ‘that the judicial power shall extend to all cases in law and equity arising under this constitution, the laws of the United States, and treaties made or which shall be made under their authority, &c., and to all cases of admiralty and maritime jurisprudence. It is well known that in civil causes, in courts of equity and admiralty, juries do not intervene, and that courts of equity use the trial by jury only in extraordinary cases to inform the conscience of the court. When, therefore, we find that the amendment requires that the right of trial by jury shall be preserved in suits at common law, the natural conclusion is, that this distinction was present to the minds of the framers of the amendment. By common law, they meant what the constitution denominated in the third article, ‘law;’ not merely suits which the common law recognized among its old and settled proceedings, but suits in which legal rights were to be ascertained and determined, in contradistinction to those where equitable rights alone were recognized, and equitable remedies were administered; or where, as in the admiralty, a mixture of public law, and of maritime law and equity was often found in the same suit.” * * * *

“In a just sense, the amendment, then, may be construed to embrace all suits which are not of equity and admiralty jurisprudence, whatever may be the peculiar form which they may assume to settle legal rights.”—3 Peters, 446.

Such are the definitions given by the Supreme Court of the United States, of the terms “claim,” “suit,” and “common law,” as used in the constitution and amendment. If these definitions are correct, they cover the case of fugitive slaves. If they are not correct, it becomes Mr. Webster to give some reason against them besides his naked assertion, that “the reclaiming of a fugitive slave is not a suit at the common law.”

Mr. Webster is habitually well satisfied with the opinions of [9] the Supreme Court, when they make for slavery. Will he favor the world with his objections to them, when they make for liberty?

Perhaps Mr. Webster will say that, in the case of a fugitive slave, the matter “in controversy,” is not “value”—to be measured by “dollars,” but freedom. But it certainly does not lie in the mouth of the slaveholder, (however it might in the mouth of the slave,) to make this objection—because the slaveholder claims the slave as property—as “value” belonging to himself.

section 3.: The Commissioners, authorized by the Act of 1850, are not Constitutional Tribunals for the performance of the duties assigned them.

The office of the Commissioners, in delivering up fugitive slaves, is a judicial office. They are to try “suits at common law,” within the meaning of the constitution, as has just been shown. They are to give, not only judgment, but final judgment, in questions both of property, and personal liberty—(of property, on the part of the complainant, and of liberty, on the part of the alleged slave.) Indeed, the Supreme Court have decided that the office of delivering up fugitive slaves is a judicial one. Say they,

“It is plain, then, that where a claim is made by the owner, out of possession, for the delivery of a slave, it must be made, if at all, against some other person; and inasmuch as the right is a right of property, capable of being recognized and asserted by proceedings before a court of justice, between parties adverse to each other, it constitutes, in the strictest sense, a controversy between the parties, and a case arising under the constitution of the United States; within the express delegation of judicial power given by that instrument.”—Prigg vs. Pennsylvania, 16 Peters, 616.

These Commissioners, therefore, are “judges,” within the meaning of that term, as used in the constitution. And being [10] judges, they necessarily come within that clause of the constitution, (Art. 3, Sec. 1,) which provides that “The judges, both of the supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.”

The object of this provision of the constitution, in requiring that all “judges” shall receive a fixed salary, or “a compensation, at stated times,” instead of receiving their pay in the shape of fees in each case—thus making its aggregate amount contingent upon the number of cases they may try—was to secure their impartiality and integrity, as between the parties whose causes should come before them. If a judge were to receive his compensation in the shape of fees for each case, he would have a pecuniary inducement to give a case to the plaintiff, without regard to its merits. And for these reasons. Plaintiffs have the privilege of selecting their own tribunals. If a particular judge be known as uniformly or usually giving cases to plaintiffs, he thereby induces plaintiffs to bring their cases before him, in preference to other tribunals. He thus tries a larger number of cases, and of course obtains a larger amount of fees, than he would if he were to decide impartially. He thus induces also the institution of a larger number of suits than would otherwise be instituted, because if plaintiffs are sure, or have a reasonable probability, of gaining their causes, without regard to their merits, they will of course bring many groundless and unjust suits, which otherwise they would not bring.

It is obvious, therefore, that the payment of judges by the way of fees for each case, has a direct tendency to induce corrupt decisions, and destroy impartiality in the administration of justice. And the constitution—by requiring imperatively that judges “shall receive” a fixed salary, or “a compensation at stated times,” has in reality provided that the rights of no man, whether of property or liberty, shall ever be adjudicated by a judge, who is liable to be influenced by the [11] pecuniary temptation to injustice, which is here guarded against.

The legal objection I now make is not that the Commissioners or judges are paid double fees for deciding against liberty, or for deciding in favor of the plaintiffs—(a provision more infamous probably, for the pay of the judiciary, than was ever before placed upon a human statute book)—but it is that they are paid in fees at all; that they receive no “compensation at stated times,” as required by the constitution; that their pay is contingent upon the number of cases they can procure to be brought before them; in other words, contingent upon the inducements, which, by their known practice, they may offer to the claimants of slaves to bring their cases before them.

The argument on this point, then, is, that inasmuch as the constitution imperatively requires that “judges shall receive, at stated times, a compensation for their services,” and inasmuch as the Act of 1850 makes no provision for paying these Commissioners any “compensation at stated times,” they are not constitutional tribunals, and consequently, have no authority to act as judges or commissioners in execution of the law; and their acts and decisions are of necessity binding upon nobody. In short, a Commissioner, instead of being one of the judges of the United States, paid by the United States, is, in law, a mere hired kidnapper, employed and paid by the slave-hunter—and every body has a right to treat him and his decisions accordingly.*

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section 4.: The State Magistrates, authorized by the Act of 1793, to deliver up fugitives from service or labor, are not constitutional tribunals for that purpose.

The Act of 1793 requires the State magistrates—“any magistrate of a county, city, or town corporate”—to deliver up fugitives from service or labor. This provision is plainly unconstitutional, for several reasons, to wit:

1. The State Courts are not “established” by Congress, as the constitution expressly requires that all courts shall be, in whom “the judicial power of the United States shall be vested.”

2. The “judges” of the State courts do not “at stated times, receive for their services a compensation,” (from the United States,) as the constitution requires that the judges of the United States shall do.

3. The judges of the State courts do not receive their offices or appointments in any of the modes prescribed by the constitution. The president does not “nominate,” nor does he “by and with the consent of the Senate, appoint” them to their offices; nor is their “appointment vested in the president alone, in the courts of law, or in the heads of departments.”

4. The State magistrates are not commissioned by the President of the United States, as the constitution requires that “all officers of the United States” shall be.

5. The State judges are not amenable to the United States for their conduct in their offices; they cannot be impeached, or removed from their offices, by the Congress or the government of the United States.

For these reasons the Act of 1793, requiring the State magistrates to deliver up fugitives, is palpably unconstitutional. Indeed the Supreme Court of the United States have decided as much; for they have decided that,

“Congress cannot vest any portion of the judicial power of [13] the United States, except in courts ordained and established by itself.”—Martin vs. Hunters, Lessee, 1 Wheaton 330.

Also, “The jurisdiction over such cases, (cases arising under the constitution, laws, and treaties of the United States,) could not exist in the State courts previous to the adoption of the constitution, and it could not afterwards be directly conferred on them; for the constitution expressly requires the judicial power to be vested in courts ordained and established by the United States.”—Same, p. 335.

But although this act is thus palpably unconstitutional, the Supreme Court, in the Prigg case, with a corruption, that ought to startle the nation, and shake their faith in all its decisions in regard to slavery, declared that “no doubt is entertained by this court that State magistrates may, if they choose, exercise that authority, unless prohibited by State legislation.”—16 Peters, 622.

Thus this court, who knew—as the same court had previously determined—that Congress could confer upon the State magistrates no “judicial power” whatever, nevertheless attempted to encourage them to assume the office of judges of the United States, and use it for the purpose of returning men into bondage—under the pretence that an act of Congress, admitted to be unconstitutional, would yet be a sufficient justification for the deed.

That court knew perfectly well that a law authorizing a claimant to arrest a man, on the allegation that he was a slave, and then take him before the first man or woman he might happen to meet in the street, and authorizing such man or woman to adjudicate the question, would be equally constitutional with this act of 1793, and would confer just as much judicial authority upon such man or woman, as this act of 1793 conferred upon the State magistrates; and that it would be just as lawful for such man or woman to adjudicate the case of an alleged slave, and return him into bondage, under such a law, as it is for a State magistrate to do it under the law of 1793.

It is worthy of remark, that the same judge—and he a northern one, (Story,)—who delivered the opinion, declaring [14] that “Congress cannot vest any portion of the judicial power of the United States, except in courts ordained and established by itself,” delivered the other opinion declaring that “no doubt is entertained by this court that State magistrates may, if they choose, exercise that authority, unless prohibited by State legislation.”

It is also worthy of notice, that every one of the definitions before given, (Sec. 2,) of “claim,” “suit,” and “common law,”—from which it appears that a “claim” for a fugitive slave is a “suit at common law,” within the meaning of the constitution, and must therefore be tried by a jury—were taken from opinions delivered in the Supreme Court by Story. He also, in the Prigg case, said that a claim for a fugitive slave “constitutes, in the strictest sense, a controversy between the parties, and a case ‘arising under the constitution of the United States,’ within the express delegation of judicial power given by that instrument.” And yet this same Story, in his Commentaries on the Constitution, says that this “suit at common law,” this “controversy between the parties,” this “case arising under the constitution, within the express delegation of judicial power given by that instrument,” has no more claim to a judicial investigation on its merits, than is had when a fugitive from justice is delivered up for trial. He says,

“It is obvious that these provisions for the arrest and removal of fugitives of both classes contemplate summary ministerial (not judicial, but ministerial—that is executive) proceedings, and not the ordinary course of judicial investigations, to ascertain whether the complaint be well founded, or the claim of ownership be established beyond all legal controversy. In cases of suspected crimes the guilt or innocence of the party is to be made out at his trial; and not upon the preliminary inquiry, whether he shall be delivered up. All that would seem in such cases to be necessary is, that there should be prima facie evidence before the executive authority to satisfy its judgment, that there is probable cause to believe the party guilty, such as upon an ordinary warrant would justify his commitment for trial. And in cases of fugitive slaves there would seem to be the same necessity for requiring only prima facie proofs of ownership, without putting the party, (the claimant,) to a formal assertion of his rights by a suit at law.”

3 Story’s Commentaries, 677-8.

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The Act of 1850 is unconstitutional for the same reason as is the Act of 1793; for the Act of 1850 (Sec. 10,) authorizes any State Court of record, or judge thereof in vacation, to take testimony as to the two facts of a man’s being a slave, and of his escape; and it provides that any testimony which shall be “satisfactory” to such State “court, or judge thereof in vacation,” on those two points, “shall be held and taken to be full and conclusive evidence” of those facts, by the United States “court, judge, or commissioner,” who may have the final disposal of the case.

It thus authorizes the State court, or judge thereof in vacation, absolutely, and without appeal, to try those two points in every case—leaving only the single point of identity to be tried by the United States “court, judge, or commissioner.”

Now it is as clearly unconstitutional for Congress to give, to a State court or judge, final jurisdiction, (or even partial jurisdiction,) of two-thirds of a case, (that is, of two, out of the only three, points involved in the case,) as it would be to give them jurisdiction of the whole case.

I suppose the ground, if any, on which Congress would pretend to justify this legislation, is the following provision of the constitution—(Art. 4, Sec. 1.)

“Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State. And the Congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof.”

But “the public acts, records, and judicial proceedings” of a State, which are here spoken of, are only “the public acts, records, and judicial proceedings,” done, made, and had, by State officers, under the laws of the State. A State judge is not an officer of the State, when exercising an authority conferred upon him by the United States; nor are his “acts, records, or judicial proceedings,” the “acts, records, or judicial proceedings” of the State—but only of the United States.* It is only [16] when acting as an officer of the State, under the laws of the State, that his “acts, records, and judicial proceedings” are the “acts, records, and judicial proceedings” of the State.

Congress seem to have been inspired with the idea that, although they could not directly confer upon a State judge that “judicial power,” which the constitution requires to be vested only in judges of the United States, yet, if, by any unconstitutional law, they could but induce a State judge to exercise “the judicial power of the United States,” so far as to hear and determine upon the evidence, (in a case arising under the constitution and laws of the United States,) and make a record of his proceedings and determination, they (Congress) could then, by virtue of this article of the constitution, “prescribe the manner in which such records and judicial proceedings shall be proved, and the effect thereof,” (before a court of the United States,) as if they were really the “records and judicial proceedings” of the State itself.

If this wonderfully adroit process were to succeed, Congress would be able to transfer all the real “judicial power of the United States,” to the State “courts, or judges thereof in vacation”—leaving the United States courts nothing to do but to receive the “records” made by these State courts and judges, and give them such “effect” as Congress might prescribe.

But this remarkable contrivance must fail of its purpose, unless it can be shown that the “acts, records and judicial proceedings,” which may be had and made by a State “court of record, or judge thereof in vacation,”—not by virtue of any authority granted them by the State, but only by virtue of an unconstitutional law of Congress—are really the “acts, records, and judicial proceedings” of the State itself.

The motive of this attempt, on the part of Congress, to transfer to the State courts and judges full and final jurisdiction over the two facts, that a man was a slave, and that he escaped, is doubtless to be found in the statement made by [17] Senator Mason, of Virginia, the Chairman of the Committee that reported the bill, and the principal champion of the bill in the Senate. In a speech upon the bill, on the 19th day of August, 1850, (as reported in the Washington Union and Intelligencer,) in describing “the actual evils under which the slave States labor in reference to the reclamation of these fugitives,” he said—

“Then again, it is proposed, (by one of the opponents of the bill,) as a part of the proof to be adduced at the hearing after the fugitive has been recaptured, that evidence shall be brought by the claimant to show that slavery is established in the State from which the fugitive has absconded. Now, this very thing, in a recent case in the city of New York, was required by one of the judges of that State, which case attracted the attention of the authorities of Maryland, and against which they protested, because of the indignities heaped upon their citizens, and the losses which they sustained in that city. In that case, the judge of the State court required proof that slavery was established in Maryland, and went so far as to say that the only mode of proving it was by reference to the statute book. Such proof is required in the Senator’s amendment; and if he means by this that proof shall be brought that slavery is established by existing laws, it is impossible to comply with the requisition, for no such proof can be produced, I apprehend, in any of the slave States. I am not aware that there is a single State in which the institution is established by positive law. On a former occasion, and on a different topic, it was my duty to endeavor to show to the Senate that no such law was necessary for its establishment; certainly none could be found, and none was required in any of the States of the Union.”

It thus appears by the confession of the champion of the bill himself, that every one of these fugitive slave cases would break down on the first point to be proved, to wit, that the alleged fugitive was a slave—if that fact were left to be proved before a court that should require the claimant to show any law which made the man a slave. It was therefore indispensable that this fact should be proved only to the satisfaction of one of those State judges, who have acquired the habit of deciding men to be slaves, without any law being shown for it.

[18]

section 5.: Ex parte Evidence.

The Act of 1850 is unconstitutional, in that it authorizes cases to be decided wholly on ex parte testimony.

The 4th Section of the act makes it the “duty” of the “court, judge, or commissioner,” to deliver up an alleged fugitive, “upon satisfactory proof being made by deposition or affidavit, in writing, * * or by other satisfactory testimony, * * and with proof also by affidavit of the identity of the person,” &c.

It thus allows the whole proof to be made by “affidavit” alone, which is wholly an ex parte affair. And if this testimony be “satisfactory” to the court, judge, or commissioner, they are authorized to decide the case upon that testimony alone, without giving the defendant any opportunity to confront or cross-examine the witnesses of the claimant, or to offer a particle of evidence in his defence.

The 10th Section of the act is of the same character as the 4th, except that it is worse. It first provides that a claimant—by a wholly ex parte proceeding—may make “satisfactory proof”—to “any court of record, or judge thereof in vacation,” in the “State, Territory, or District,” from which a fugitive is alleged to have escaped—that a person has escaped, and that he owed service or labor to the party claiming him. It then, not merely permits, but imperatively requires, that this ex parte evidence, when a transcript thereof is exhibited in the State where the alleged fugitive is arrested, “shall be held and taken to be full and conclusive evidence of the fact of escape, and that the service or labor of the person escaping is due to the party in the record mentioned.”

It thus absolutely requires, that on the production of certain ex parte evidence by the claimant, the court, judge, or commissioner shall decide these two points—the fact of escape, and that the fugitive owed service or labor to the claimant—against the defendant, without giving him a hearing.

[19]

It then permits the judge to decide the only remaining point, to wit, the identity of the person arrested with the person escaped—upon the same testimony. But it allows him to receive “other and further evidence, if necessary,” on this single point of identity.

Thus this section imperatively prescribes that, at the pleasure of the claimant, certain ex parte testimony “shall be held and taken to be full and conclusive evidence,” on two, out of the three, points involved in the case. And on the only remaining point, it requires “other and further evidence,” only on the condition that it shall be “necessary” in the mind of the judge or commissioner. And if “other and further evidence” be “necessary,” that also may be “either oral, or by affidavit,” which last is necessarily ex parte.

Thus the act authorizes the whole case to be decided wholly on ex parte evidence, if such evidence be “satisfactory” to the commissioner; and, at the option of the claimant, it makes it obligatory upon the commissioner to receive such testimony as “full and conclusive evidence,” on two, out of the only three, points involved in the case.

There is not a syllable in the whole act that suggests, implies, or requires that the individual, whose liberty is in issue, shall be allowed the right to confront or cross-examine a single opposing witness, or even the right to offer a syllable of rebutting testimony in his defence.

Now, I wish it to be understood that I am not about to argue the enormity of such an act, but only its unconstitutionality.

The question involved is, whether Congress have any constitutional power to authorize courts to decide cases, “suits at common law,” or any other cases, on ex parte testimony alone?

The constitution declares that “the judicial power shall extend to all cases in law and equity, arising under this constitution, the laws of the United States, * * to controversies to which the United States shall be a party; to controversies between two or more States, between a State and citizens of another State, between citizens of different States,” &c., &c.

[20]

What then is a “case?” “Case” is a technical term in the law. It is a “suit,” a “controversy” before a judicial tribunal, or umpire. The constitution uses the three terms, “case,” “suit,” and “controversy,” as synonymous with each other. They all imply at least two parties, who are antagonists to each other. There can be no “controversy,” where there is but one party. Nor can there be a “controversy” where but one of the parties is allowed to be heard.

Say the Supreme court, “A case in law or equity consists of the right of one party, as well as of the other.”

Cohens vs. Virginia, 6 Wheaton 379.

What is this “right” which is at the same time “the right of one party, as well as of the other?” It cannot be a right to the thing in controversy; because that can be the right of but one of them. The “right,” therefore, that belongs to “one party as well as the other,” can be nothing less than the equal right of each party to produce all the evidence naturally applicable to sustain his own claim, and defeat that of his adversary; to have that evidence weighed impartially by the tribunal that is to decide upon the facts proved by it; and then to have the law applicable to those facts applied to the determination of the controversy.

It has already been shown that the claim to a fugitive slave, is a “case,” “suit,” and “controversy,” arising under the constitution of the United States; and as such, to use the language of the court, is “within the express delegation of judicial power given by that instrument.”

The question now arises, what is “the judicial power of the United States?”

I answer, it is the power to take judicial cognizance or jurisdiction of, to try, adjudicate, and determine, all “cases,” “suits,” and “controversies, arising under the constitution and laws of the United States,” &c.

The judicial power, therefore, being a power to try cases, necessarily includes a power to determine what evidence is applicable to a case, and to admit, hear, and weigh all the evidence that is applicable to it. A case can be tried only on the evidence [21] presented. In fact, the evidence constitutes the case to be tried. If a part only of the evidence, that is applicable to a case—or that constitutes the case—or that is necessary for the discovery of the truth of the case—be presented, weighed, and tried, the case really in controversy between the parties is not tried, but only a fictitious one, which Congress or the courts have arbitrarily substituted for the true one. If, whenever a case, arising under the constitution or laws of the United States, is instituted by one indivdual against another, Congress have constitutional power to substitute a fictitious case for the real one, and to require that the real one abide the result of the fictitious one, they have power to authorize cases to be tried on ex parte testimony—otherwise not. In what clause of the constitution such a power is granted to Congress, no one, so far as I am aware, has ever deigned to tell us.

No one will deny that the question, what evidence is admissible in a case, or makes part of a case, or is applicable to a case, is, in its nature, a judicial question. And if it be, in its nature, a judicial question, the power to determine it is a part of “the judicial power of the United States,” and consequently is vested solely in the courts. And Congress have clearly as much right to usurp any other “judicial power” whatever, as to usurp the power of deciding what evidence is, and what is not, admissible—or what evidence shall, and what evidence shall not, be admitted.

As a general rule, the decision of these questions, of the admissibility of evidence, is left to the courts. But legislatures are sometimes so ignorant or corrupt as to usurp this part of “the judicial power;” and the courts are always, I believe, ignorant, servile, or corrupt enough to yield to the usurpation.

The simple fact that all questions of the admissibility of evidence are, in their nature, judicial questions, proves that the power of deciding them, is a part of “the judicial power of the United States;” and as all “the judicial power of the United States” is vested in the courts, it necessarily follows that Congress cannot legislate at all in regard to it, either by prescribing what evidence shall, or what shall not, be admitted, in [22] any case whatever. For them to do so is a plain usurpation of “judicial power.”

Among all the enumerated powers, granted to Congress, there is no one that includes, or bears any, the remotest, resemblance to a power to prescribe what evidence shall, and what shall not, be admitted by the courts, in the trial of a case. There is none that bears any resemblance to a power to authorize or require the courts to decide cases on ex parte testimony alone. If a judge were thus to decide a case, of his own will, he would be impeached. The assumption, on the part of Congress, of a power to authorize the courts to do such an act, is a thoroughly barefaced usurpation. If Congress can authorize courts to decide cases, on hearing the testimony on one side only, they have clearly the same right to authorize them to decide them without hearing any evidence at all.

section 6.: The provisions of the act of 1850 requiring the exclusion of certain evidence, are unconstitutional.

Those provisions of the act, which specially require the exclusion of certain testimony, naturally applicable to the case, are unconstitutional for the same reason as are those which purport merely to authorize or allow the decision of the case on ex parte testimony. That reason, as has been already stated in the preceding section, is that such legislation is an usurpation, by Congress, of “the judicial power”—or rather an attempt to control the judicial power—for which no authority is given in the constitution. “The judicial power” being vested in the courts, Congress can of course neither exercise nor control it.

If congress can, by statute, require the exclusion of any testimony whatever, that is naturally applicable to a case, they can require the exclusion of all testimony whatever, and require cases to be decided by the courts, without hearing any evidence at all.

[23]

There are two provisions in the act of 1850, which specially require the exclusion of testimony, on the part of the defendant. The first is the one, (sec. 10), already commented upon, which requires that certain ex parte testimony taken by the claimant, “shall be held and taken to be full and conclusive evidence,” on the two points to which it relates, to wit, the fact of slavery, and the fact of escape. This requirement that this ex parte testimony shall “be held and taken to be full and conclusive evidence” of those two facts, is an express exclusion of all rebutting testimony relative to those facts.

The other provision of this kind, is in the 4th section, in these words.

“In no trial or hearing, under this act, shall the testimony of such alleged fugitive be admitted.”

The act itself admits that the testimony of one of the parties, the claimant, is legitimate evidence—for it permits it to be received, and, if it be “satisfactory” to the court, judge, or commissioner, allows the case to be determined on his testimony alone. Indeed, without the claimant’s own testimony, his case could rarely, if ever, be made out—because he alone could generally know whether he owned the slave, and he alone (except the slave) could know whether the slave escaped, or whether he had permission to go into another state. It is therefore indispensable to the success of these cases generally, that the claimant’s own testimony should be received; and if his testimony be admissible, the testimony of the opposing party must be equally admissible; and for Congress to prohibit its admission is, for the reasons already given, an usurpation of “the judicial power.”*

[24]

section 7.: The requirement of the act of 1850, that the cases be adjudicated “in a summary manner,” is unconstitutional.

Section 6th of the act makes it the “duty” of the court, judge, or commissioner, “to hear and determine the case of such claimant in a summary manner.”

This determining the case in a summary manner is only another mode of excluding testimony on the part of the defendant. The plaintiff of course prepares his testimony beforehand, and has it ready at the moment the alleged fugitive is arrested. If the case then be tried, without giving the defendant time to procure any testimony, the decision must necessarily be made upon the testimony of the claimant alone. Such is the design of the act, for the defendant being arrested, the [25] act requires that he shall be “taken forthwith before such court, judge, or commissioner, whose duty it shall be to hear and determine the case of such claimant in a summary manner,”—that is, without granting the delay necessary to enable the defendant to obtain testimony for his defence.

The whole object and effect of this provision is to make it necessary for the court to determine the case on the evidence furnished by the plaintiff alone. And the exclusion of all testimony for the defendant, by this “summary” process, is equally unconstitutional with its exclusion in the manner commented on in the last two preceding sections—for the right of a party to be heard in a court of justice, necessarily implies a right to reasonable time in which to procure his testimony.

section 8.: The suspension of the writ of Habeas Corpus, by the act of 1850, is unconstitutional.

Section 6th of the act provides that “the certificates in this and the first section mentioned, shall be conclusive of the right of the person or persons in whose favor granted, to remove such fugitive to the state or territory from which he [26] escaped, and shall prevent all molestation of such person or persons, by any process issued by any court, judge, magistrate, or other person, whomsoever.”

This is a prohibition upon the issue of the writ of habeas corpus, and is a violation of that clause of the constitution, which says that “The privilege of the writ of habeas corpus shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it.”

In cases where no appeal lies to a superior court, (and in this case no appeal is granted, and the constitution, art. 3, sec. 2, clause 2, does not require an appeal,) the habeas corpus is the only mode of relief for a person deprived of his liberty by any illegal proceeding; and a prohibition upon the use of the habeas corpus for the purpose of inquiring into the proceedings, and determining whether they have been legal, and releasing the prisoner if they have been illegal, is as palpable a violation of the constitution on this point as it is possible to conceive of.

Upon a writ of habeas corpus, it would be the duty of the court to inquire fully into the several questions, whether the person, who had assumed to act as judge, and restrain the prisoner of his liberty, was really a judge, appointed and qualified as the constitution requires? Whether the law, under color of which the man was restrained, was a constitutional one? Whether the prisoner had been allowed a trial by jury? Whether he had been allowed to offer all the testimony, which he had a constitutional right to offer, in his defence. Whether he had had reasonable time granted him, in which to procure testimony? And generally into all questions involving the legality of his restraint; and to set him at liberty, if the restraint should be found to be illegal.

[27]

CHAPTER II.: The Right of Resistance, and the Right to have the Legality of that Resistance judged of by a Jury.

If it have been shown that the acts of 1793 and of 1850, are unconstitutional, it follows that they can confer no authority upon the judges and marshals appointed to execute them; and those officers are consequently, in law, mere ruffians and kidnappers, who may be lawfully resisted, by any body and every body, like any other ruffians and kidnappers, who assail a person without any legal right.

The rescue of a person, who is assaulted, or restrained of his liberty, without authority of law, is not only morally, but legally, a meritorious act; for every body is under obligation to go to the assistance of one who is assailed by assassins, robbers, ravishers, kidnappers, or ruffians of any kind.

An officer of the government is an officer of the law only when he is proceeding according to law. The moment he steps beyond the law, he, like other men, forfeits its protection, and may be resisted like any other trespasser. An unconstitutional statute is no law, in the view of the constitution. It is void, and confers no authority on any one; and whoever attempts to execute it, does so at his peril. His holding a commission is no legal protection for him. If this doctrine were not true, and if, (as the supreme court say in the Prigg case,) a man may, if he choose, execute an authority granted by an unconstitutional law, congress may authorize whomsoever they please, to ravish women, and butcher children, at pleasure, and the people have no right to resist them.

The constitution contemplates no such submission, on the part of the people, to the usurpations of the government, or to the lawless violence of its officers. On the contrary it provides that “The right of the people to keep and bear arms shall not be infringed.” This constitutional security for “the right to keep and bear arms,” implies the right to use them,—as [28] much as a constitutional security for the right to buy and keep food, would have implied the right to eat it. The constitution, therefore, takes it for granted that, as the people have the right, they will also have the sense, to use arms, whenever the necessity of the case justifies it. This is the only remedy suggested by the constitution, and is necessarily the only remedy that can exist, when the government becomes so corrupt as to afford no peaceable one. The people have a legal right to resort to this remedy at all times, when the government goes beyond, or contrary to, the constitution. And it is only a matter of discretion with them whether to resort to it at any particular time.

It is no answer to this argument to say, that if an unconstitutional act be passed, the mischief can be remedied by a repeal of it; and that this remedy may be brought about by discussion and the exercise of the right of suffrage; because, if an unconstitutional act be binding until invalidated by repeal, the government may, in the mean time disarm the people, suppress the freedom of speech and the press, prohibit the use of the suffrage, and thus put it beyond the power of the people to reform the government through the exercise of those rights. The government have as much constitutional authority for disarming the people, suppressing the freedom of speech and the press, prohibiting the use of the suffrage, and establishing themselves as perpetual and absolute sovereigns, as they have for any other unconstitutional act. And if the first unconstitutional act may not be resisted by force, the last act that may be necessary for the consummation of despotic authority, may not be.

To say that an unconstitutional law must be obeyed until it is repealed, is saying that an unconstitutional law is just as obligatory as a constitutional one,—for the latter is binding only until it is repealed. There would therefore be no difference at all between a constitutional and an unconstitutional law, in respect to their binding force; and that would be equivalent to abolishing the constitution, and giving to the government unlimited power.

[29]

The right of the people, therefore, to resist an unconstitutional law, is absolute and unqualified, from the moment the law is enacted.

The right of the government “to suppress insurrection,” does not conflict with this right of the people to resist the execution of an unconstitutional enactment; for an “insurrection” is a rising against the laws, and not a rising against usurpation. If the government and the people disagree, as to what are laws, in the view of the constitution, and what usurpations, they must fight the matter through, or make terms with each other as best they may.

But for this right, on the part of the people, to resist usurpation on the part of the government, the individuals constituting the government would really be, in the view of the constitution itself, absolute rulers, and the people absolute slaves. The oaths required of the rulers to adhere to the constitution, would be but empty wind, as a protection to the people against tyranny, if the constitution, at the same time that it required these oaths, committed the absurdity of protecting the rulers, when they were acting contrary to the constitution. The constitution, in thus protecting the rulers in their usurpations, would continue to act as a shield to tyrants, after they themselves had deprived it of all power to shield the people. It would thus invite its own overthrow, and the conversion of the government into a despotism, by those appointed to administer it for the liberties of the people.

This right of the people, therefore, to resist usurpation, on the part of the government, is a strictly constitutional right. And the exercise of the right is neither rebellion against the constitution, nor revolution—it is a maintenance of the constitution itself, by keeping the government within the constitution. It is also a defence of the natural rights of the people, against robbers and trespassers, who attempt to set up their own personal authority and power, in opposition to those of the constitution and people, which they were appointed to administer.

To say, as the arguments of most persons do, that the people, [30] in their individual and natural capacities, have a right to institute government, but that they have no right, in the same capacities, to preserve that government by putting down usurpation—and that any attempt to do so is revolution, is blank absurdity.

The right and the physical power of the people to resist injustice, are really the only securities that any people ever can have for their liberties. Practically no government knows any limit to its power but the endurance of the people. And our government is no exception to the rule. But that the people are stronger than the government, our representatives would do any thing but lay down their power at the end of two years. And so of the president and senate. Nothing but the strength of the people, and a knowledge that they will forcibly resist any very gross transgression of the authority granted by them to their representatives, deters these representatives from enriching themselves, and perpetuating their power, by plundering and enslaving the people. Not because they are at heart naturally worse than other men; but because the temptations of avarice and ambition, to which they are exposed, are too great for the mere virtue of ordinary men. And nothing but the fear of popular resistance is adequate to restrain them. As it is, the great study of many of them seems to be to ascertain the utmost limit of popular acquiescence. Once in a while they mistake that limit, and go beyond it.

But, to return. As every body who shall resist an officer in the execution of these fugitive slave laws, will be liable to be tried for such resistance, and to be thus laid under the necessity of proving the unconstitutionality of the laws to the satisfaction of the tribunal by whom he is tried; and as judges are in the nearly unbroken habit of holding all legislation to be constitutional; and especially as the Supreme Court of the United States have held, (in the Prigg case, as before cited,) that the sending of men into bondage is so important an object to be accomplished, that an officer may, if he choose, exercise an authority conferred only by an unconstitutional law; it becomes those, who may be disposed to resist the execution of [31] the laws in question, to ascertain what are their chances of escaping unharmed in running the gauntlet of such a judiciary as the nation is blessed with.

One liability, imposed by the act, (sec. 7,) is that any person, who shall in any way assist in the rescue, “shall forfeit and pay, by way of civil damages to the party injured by such illegal conduct, the sum of one thousand dollars for each fugitive so lost as aforesaid, to be recovered by action of debt,” &c.

There is one consolation, in view of this liability, and that is, that in the suit for this $1000, the claimant will be under the necessity of proving his property in the fugitive; and this, (as is shown by Senator Mason’s speech, before cited,) could be done in no case whatever.

I say the claimant will have to prove his property in the fugitive, because it is not clear that the act intends, (although at first blush such may be its apparent meaning,) that the judgment given by the court, judge, or commissioner, delivering the alleged slave to the claimant, shall be sufficient evidence, or even evidence at all, of such claimant’s property in the slave, in a civil suit for damages for the loss of the slave. And in the absence of such clear intention, I apprehend no court would dare put such a construction upon the act, or allow such use to be made of that judgment. The right of action for damages, which is given to the master, is given him, not for the purpose of punishing those who rescue the alleged fugitive, (for that punishment is provided for by fine and imprisonment,) but to enable the owner to recover payment for the loss of his property. In such an action he is of course necessitated to prove, (and Congress have no power to make any law to the contrary,) that the man he claims as his property, is really his—because, in a free state certainly, every man is prima facie the owner of himself.*

[32]

The claimant could recover payment for his slave but once, although an hundred or a thousand persons were engaged in the rescue; and these hundred or thousand persons could unite in the payment, thus making the burden a light one upon each individual.

As this action is given to the owner, to enable him to recover the value of his slave, and not as a penalty upon those who rescue him, the law is clearly unconstitutional in fixing that value at a specific sum. The value must be ascertained by a jury, if it exceed twenty dollars. Congress have as much right to say that, in case of any other injury done by one man to the property of another, the wrong-doer “shall forfeit and pay, by way of civil damages to the party injured by such illegal conduct, the sum of one thousand dollars, (and no more,) to be recovered by action of debt,” without regarding whether the injury were really $10, or $10,000, as to say the same in this case. The power of determining the amount of injury done by one man to the property of another, by violating a law of the United States, is a part of “the judicial power,” and is vested solely in the courts, and Congress have no authority whatever to decide that question.

Furthermore, the law is also unconstitutional in authorizing the owner to recover the full value of the slave. It should only authorize him to recover the damages actually sustained by the rescue. The owner does not lose his property in his slave by having him taken out of his hands on a particular occasion. His property in him remains, and the law presumes that he can take his slave again at pleasure, as he could before the rescue. Because there has been one rescue, the law does not presume that the slave is forever lost to his owner. And the defendants would be entitled to prove that the slave was still within reach of the master, where his master might at any time retake him. And it would be no answer to this fact, to say, that if the slave were retaken, he would probably be rescued again. The law presumes nothing of that kind, and could not presume it, even though the slave had been seized by the owner, and rescued by the defendants, an hundred [33] times. The law would still presume that if the master were to take the slave again, he would be suffered to hold peaceable possession of him. Consequently the owner, in case of a rescue, is entitled to recover only the damages actually suffered by that particular rescue, and not the full value of the slave, as if he had been lost to him forever. And this suit for damages, being a “suit at common law,” within the meaning of the constitution, must be tried by a jury; and the damages must be ascertained by a jury, instead of being fixed by statute.

If this view of the law be correct, the pecuniary liability incurred in rescuing a slave, would be very slight, so far as the right of the master to recover damages was concerned.*

The only other liability incurred in rescuing an alleged fugitive, is a liability to be indicted and tried criminally for the act, and if convicted, subjected to “a fine not exceeding one thousand dollars, and imprisonment not exceeding six months.”

There are two chances of security against these punishments.

1. They can be inflicted only upon “indictment and conviction.” There is a probability that a grand jury will not indict, for it is not their duty to do so, if they think the law, that has been resisted, is unconstitutional. A grand jury have the same right to judge of the law, as a traverse jury.

2. If an indictment be found, the jury who try that indictment, are judges of the law, as well as the fact. If they think the law unconstitutional, or even have any reasonable doubt of its constitutionality, they are bound to hold the defendants justified in resisting its execution.

From this right of the jury to judge of the law in all criminal cases, it follows that in all forcible collisions between the government and individuals, (as in the case of resistance to [34] the execution of a law,) the right of judging whether the government or the people are in the right, lies in the first instance, not with the government, or any permanent department of it, but with the people—that is, “the country,” whom the jury represent; for the jury represent “the country,” or the people, as distinguished from the government.* The people, therefore, in establishing government, with trial by jury, do not surrender their liberties into the hands of the government to be preserved or destroyed, as the government shall please. But they retain them in their own hands, by forbidding the government to injure any one in his life, liberty, or property, without having first obtained the consent of “the country”—that is, of the people themselves—who are supposed to be fairly represented by a jury, taken promiscuously from the whole people, and therefore likely to embrace persons of all the varieties of opinion that are generally prevalent among the people.

Hence it follows that, under the trial by jury, no man can be punished for resisting the execution of any law, unless the law be so clearly constitutional, as that a jury, taken promiscuously from the mass of the people, will all agree that it is constitutional. But for some principle of this kind, by which the opinions of substantially the whole people could be ascertained, men, in agreeing to a constitution, would be liable to be entrapped into giving their consent to a government that would punish them for exercising rights, which they never intended to surrender. But so long as it rests with a jury, instead of the government, to say what are the powers of the government, and what the liberties of the people—and so long as juries are fairly selected by lot from the whole population, the presumption is that all classes of opinions will be represented in the jury, and every man may therefore go forward fearlessly in the exercise of what he honestly believes to be his rights, in the confidence that, if his conduct be called in question, there will be among his judges, (the jury,) some [35] persons at least, whose judgments will correspond with his own.

And inasmuch as a single dissentient in the jury is sufficient to prevent a conviction, it follows that if the government exercise any powers except such as substantially the whole people intended it should exercise, it is liable to be resisted, without having any power to punish that resistance. It may indeed overcome that resistance and enforce the law, constitutional or unconstitutional, unless resisted by a force that is stronger than its own. But it cannot punish that resistance afterward, unless substantially the whole people, through a jury, agree that the law was constitutional.

But this right of a jury, in all criminal prosecutions, to judge of the constitutionality of the law that has been resisted, is not the whole of a jury’s rights; they have the right to judge also of its justice. Juries are never sworn to try criminal cases “according to law.” They are only sworn to “try the issue according to the evidence.” The “issue” is guilty or not guilty. This issue is to be tried on the natural principles of justice, as those principles exist in the breasts of the jurors, and not according to any arbitrary standard which legislators may have attempted to set up. Guilt is an intrinsic quality of actions, and cannot be imparted to them by all the legislatures that ever assumed to exercise the power of converting justice into injustice, and injustice into justice. The question for a jury, in trying “the issue,” then, is not simply whether the accused has been guilty of violating a law; but whether he has been guilty in violating it? And unless they all answer this last question in the affirmative, he cannot be convicted.

The trial by jury might safely be introduced into a despotic government, if the jury were to exercise no right of judging of the law, or the justice of the law.

If juries were to find men guilty, simply because the latter had exercised their natural rights in defiance of unjust laws, juries, instead of being, as they are wont to be called, “the palladium of liberty,” would be the vilest tools of oppression—the [36] instruments of their own enslavement—for in condemning others for resisting injustice, at the hands of the government, they authorize their own condemnation for a similar cause. No honest man could ever sit on a jury, if he were required to find a man “guilty,” and thus become accessory to his punishment, for doing an act, which was just in itself, but which the government, in violation of men’s natural rights, had arbitrarily forbidden him to do.

Furthermore, a jury, before they can convict a man, must find that he acted with a criminal intent—for it is a maxim of law that there can be no crime without a criminal intent. There can be no criminal intent in resisting injustice. To justify a conviction, therefore, the law, and the justice of the law, must both be so evident as to make its transgression satisfactory proof of an evil design on the part of the transgressor.

Such are some of the principles of the trial by jury: and the effect of them is to subject the whole operations of the government, both as to their constitutionality and their justice, to the ordeal of a tribunal fairly representing the whole people, and thus to restrain the government within such limits as substantially the whole people, whose agent it is, agree that it may occupy. But for this restraint, our government, like all others, instead of being restricted to the accomplishment of such purposes as the whole people desire, would fall, as indeed it very often has fallen, into the hands of cliques and cabals, who make it, as far as possible, an instrument of plunder and oppression, for the gratification of their own avarice and ambition.

There is, therefore, substantial truth in the saying, which, we have been recently told,* “has, in England, become traditional, and drops from the common tongue, that ‘the great object of King, Lords, and Commons, is to get twelve men into a jury box.’ ” And in this country, the great object of Presidents, Senators, and Representatives is the same. But such have been the ignorance and the frauds of legislators and judges, and such the ignorance of the people, on this point, [37] that juries have generally been merely contemptible tribunals, looking after facts only, and not after rights, and ready to obey blindly the dictation of legislatures and courts, and enforce any thing and every thing, which the permanent branches of the government should require them to enforce. And we now see the results of their degradation and submission, in the audacity of the legislature in passing such laws as those of 1793 and 1850, and in the conduct of the courts in sanctioning, as constitutional, the former of these laws, as they undoubtedly will sanction the latter, unless deterred by the intelligence and firmness of the people.

It is this intrusting of the liberties of the people, to the hands of the people—represented by a jury taken promiscuously from the mass of the people—instead of intrusting them to the government, which represents at most but a part, and generally a small part, of the people—that makes the trial by jury “the palladium of liberty.” If governments were intrusted with authority to define the liberties of the people, they would of course say that the people had no liberties that could be exercised contrary to the will of the government. And if governments had authority to define their own powers, and to punish all who resisted their power as thus defined, all governments would declare themselves absolute of course. And the simple right to punish resistance, without getting the consent of the people in each individual case, would, of itself, make any government absolute; for the power to punish necessarily carries all other powers with it. The power to punish disobedience is the power that compels obedience. It is, in its very nature, an absolute and uncontrollable power. And if a government have this power, it is absolute of course. And oaths and parchments are things of no importance in such a case, for they are necessarily but straws in the way of a power that is otherwise unrestrained.

It is no argument to say that the constitution has provided a judicial department, with power extending to “all cases arising under the constitution and laws of the United States.” The answer is, that this constitution has made juries a part of this judicial department, and given them special jurisdiction of [38] crimes, and made their acquittal final; and that it is only in cases of conviction that a question can be carried beyond them.

The permanent officers of this department—the judges, so called—by the very constitution of their office, are unfit to be trusted with any question arising between the government and the people, as to the powers of the former, and the liberties of the latter; for the judges receive their offices directly from those other departments of the government, and not from the people. They are also dependant upon those other departments for their salaries, and are amenable to them by impeachment. They are of course nothing but instruments in their hands, and have always proved themselves to be so. I think there is not to be found on record, either in our general or state governments, a single instance, in which the judiciary have ever held a law unconstitutional, that provided in any way for punishing the people for the exercise of their rights. The statute books of both the national and state governments have abounded, and still abound, with statutes creating odious and oppressive monopolies, infringing men’s natural rights, violating the plainest principles of justice, having no authority in the constitutions under which they purport to be enacted, and providing fines and imprisonments for those who may transgress them; and yet, (so far as I am aware), no one of this long catalogue of enactments ever encountered the veto of the judiciary. I apprehend that the whole judiciary of this country, state and national, might be safely challenged to produce a single instance, in which they have ever vindicated a single principle of either natural or constitutional liberty, against the penal encroachments of the legislatures on which they were dependent. On the contrary, they have uniformly—probably without a solitary exception—proved themselves, in all questions of this nature, to be nothing but the willing instruments of usurpation and oppression. They do not accept their offices with any other intention than that of holding all laws constitutional, which they suppose the legislature will pass—for nobody [39] accepts an office, unless with the intention of being obedient to those, to whom they are amenable.*

The idea, so constantly asserted, that the permanent judiciary, the judges, have a right to decide all constitutional questions, authoritatively for the people, is one of those gross impostures, by which men have always been defrauded of their rights. There is not a syllable in the constitution, that makes a decision of the judiciary—of its own force, and without regard to its correctness—binding upon any body, either upon the executive, or the people. In the very nature of things, nothing but the law can be binding upon any one. If a judicial decision be according to law, it is binding; if not, not. An unconstitutional judicial decision is no more binding, than an unconstitutional legislative enactment—and a man has the same right to resist, by force, one as the other, and to be tried for such resistance by a jury, who judge of the law for themselves.

Suppose the judiciary, in a suit between two pretended mothers, for the custody of a child, should give the judgment of Solomon, that the child be cut in two, and a half given to each; does any one suppose the executive would be bound to carry the judgment into effect? or that the opinion is obligatory as an authority upon any body? Yet it would be as much binding as any other erroneous decision.

If a judicial decision contrary to the constitution, were binding simply because it were a judicial decision, the judiciary could constitutionally make themselves absolute sovereigns at once.

A judicial decision, as such, has therefore no intrinsic authority at all; its constitutional authority rests wholly upon its being in accordance with the constitution. And we can determine whether it be in accordance with the constitution, only by first determining the meaning of the constitution, independently of the decision, and then comparing the decision with it. If we take the decision as authority for the meaning of the [40] constitution, all decisions will of necessity be constitutional, and the judges are of course, constitutionally speaking, absolute despots.

It is no argument, in answer to this view of the case, to say, that decisions may be so grossly and palpably unconstitutional as not to be binding; but that in all doubtful cases they are obligatory. The constitution knows nothing of doubtful cases. In its view decisions and laws are simply either constitutional or unconstitutional. It knows nothing of their being more or less grossly and palpably so. If they are constitutional, they are binding; if they are not constitutional, they are not binding, though their variation from the constitution be but the smallest that can be discovered.

The constitution does not assume that it needs any authoritative interpreter. It assumes that its meaning is known to the people who ordained and established it, just as all legal instruments assume that their true meaning is understood by the parties to them. The people, as parties to the constitution, would not be bound by it, unless they were presumed to understand it—for no one is bound by a contract, which he is not presumed to understand.

The constitution as much presumes that the people understand its own meaning, as it does that they understand a judicial opinion. It presumes itself to be as intelligible as the opinions of courts. It would be absurd for it to presume that courts would express its intentions more intelligibly than it has itself expressed them—for, in that case, the language of the courts would be more authoritative than the language of the constitution; they would consequently make the constitution whatever they should please to make it; and they would also make themselves whatever they should please to be. But the constitution has no such suicidal character as that. On the contrary, it presumes that the people are competent to understand both the meaning of the constitution and the meaning of the courts; and consequently that they are competent to determine whether the opinions and decisions of the courts correspond [41] with the constitution, and whether, therefore, their decisions are to be obeyed or resisted.

What, then, it may be asked, is the use of the judiciary, if it be not to decide doubts as to the meaning of the constitution? The answer is, that it is their office to try certain “cases,” “controversies,” and “suits,” mentioned in the constitution. These cases are presumed to arise out of disagreements as to facts, or from the dishonesty of one or the other of the parties, and not from their ignorance of the law, (or constitution),—for every body is presumed to know the law, although all do not in fact know it—neither the people nor the courts. And the judiciary are to try these “cases,” “controversies,” and “suits,”—that is, they are to ascertain the facts, and determine the resulting rights of the parties—by the standard of the constitution, as a known standard; a standard that is presumed to be known to both the parties, as well as to the courts.

The judiciary are in a situation analagous to that of any other umpire, who should be agreed upon, for instance, by the parties in a controversy, to measure a certain commodity by a certain standard—as, for example, to measure certain cloth by a yard stick. The submission of this controversy to the umpire, implies that the parties, as well as the umpire, understand the length of the yard stick—but that they nevertheless disagree as to the true admeasurement of the cloth. They therefore agree to abide the decision of the umpire.

In the performance of his office, it becomes necessary for this umpire—for a guide to his own duty, and not for the information of the parties or the public,—to ascertain what is a yard stick. And if he honestly measure the cloth by a yard stick, the parties are bound by his admeasurement. But if this umpire, either from ignorance or design, measure the cloth by a stick, that is either more or less than a yard, calling such stick a yard stick, the admeasurement is not binding upon the parties—because the submission of the case to the umpire was made upon the express condition that the admeasurement should be made by a yard stick. And the party, who has been wronged [42] by the false admeasurement, has a right to resist the execution of the umpire’s decree.

The case is the same with the judiciary. They are umpires, appointed to measure the rights of parties, by a certain standard, to wit, the constitution. This standardis presumed to be known to the parties, as well as to the umpires, (for all are presumed to know the law), although it may in fact be known to none of them. The umpires—in order to perform their own duty, and not for the information of the parties or the public,—must necessarily ascertain, if they can, what the constitution really is. But if, through ignorance or design, they put a false meaning upon the constitution—thus adopting a false standard—and then measure the rights of the parties by this false standard, the parties are not bound by their decision, because the submission was made to them only on the condition that their rights should be measured by that particular standard, the constitution—and not by any false standard which the umpires, through ignorance or design, might adopt. And the party, who is wronged by the decision, has a right to resist the execution of it, to the best of his power. And if tried criminally for such resistance, his triers (the jury) must judge whether the decision of the umpires was according to the standard agreed upon by the parties—that is, according to the constitution.

But it is thoroughly ridiculous to talk of these umpires having fixed or established the standard itself—that is, the meaning of the constitution—merely because, in a particular instance, they measured the rights of certain parties by the constitution. There would be as much reason in saying that the umpire, who measured the cloth by a yard stick, established the length of the yard stick by so doing, as to say that the judiciary establish the meaning of the constitution, whenever they pretend to measure rights by the constitution. Any thing they said or did in one instance, between certain parties, has no binding force, of itself, in any subsequent case between the same, or any other, parties. The standard, alone, or a true admeasurement by the standard alone, is binding in all cases. If the first admeasurement were correct, that admeasurement established [43] simply the rights measured by it. It did nothing towards fixing the standard itself, by which the rights were measured. And any subsequent correct admeasurement will, in like manner, establish the rights measured by it; but will do nothing towards fixing the standard itself. The standard itself needs not to be fixed, for it was fixed before any rights at all had been measured by it. But to say because one admeasurement has been made thus, therefore all future admeasurements must be made thus, is ridiculous. The admeasurements are all bound to be made correctly, according to the standard. But if one have been made wrong, that is no reason why all future admeasurements must be made wrong, nor why the people are bound to presume that all future admeasurements will be made wrong. Whether any admeasurement be made wrong, or not, each one must judge for himself, and resist the decision of the umpires at the peril of being tried for such resistance by a jury.

CHAPTER III.: Liability of United States Officers to be punished, under the State Laws, for executing the acts of 1793 and 1850.

If the laws of 1793 and 1850 are unconstitutional, they are no laws, in the view of the constitution; consequently they confer no authority on any one; and the United States judges, commissioners, marshals, &c., who may assist in sending men into slavery, in performance of them, are liable to be punished, under the State laws, as kidnappers, the same as they would have been if Congress had passed no act on the subject.

The constitution contemplates that all officers of the United States, except Senators and Representatives, may be punished for any crimes done under color of their office; for it declares, that, in addition to impeachment, they “shall be liable, and subject to, indictment, trial, judgment, and punishment according to law.” (Art. 1, Sec. 3, Ch. 7).

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If any one of these officers were to commit murder, rape, arson, theft, or any other crime, either under color of his office, or otherwise, his office is no protection to him against the laws of the State. And it is the same in the case of kidnapping, as it would be in the case of any other crime.

The only question, that can be raised in their defence, is, whether they are bound to know that an act, that has passed through the regular forms of being enacted, is unconstitutional?

This question is answered by the simple principle, that every body is bound to know the law. If that obligation be imperative upon any one, it is imperative upon those who administer the law. The constitution is the fundamental, the paramount law, and all officers of the government are sworn to support it. Of course they are presumed to know it, and bound to know it, else their oaths to support it would be but nonsense.

If they are bound to know the constitution itself, they are of course bound to know whether an act, that has passed Congress, be in conformity with it,—else in executing the act they would be liable to commit a breach of their oaths to support the constitution.

They are also sworn to administer and execute the laws of the United States. Unless they were presumed to know, and bound to know, what are, and what are not, laws of the United States, within the meaning of the constitution, this oath also is an absurd one.

If the judges or executive officers were bound to consider every act, that may pass Congress, a constitutional one—that is, a law, within the meaning of the constitution,—their oath to support the constitution, and their oath to support the laws, would come in conflict with each other, whenever an unconstitutional act was passed.

Indeed we all know that the judiciary are not bound to consider an act of congress constitutional; and if the judiciary are not, no other branch of the government is, for each department of the government judges of the constitution for itself, [45] independently of the others,—else no one branch would be any restraint upon the others, and the whole object of having the government divided into different departments, to act as checks upon each other, would be lost. Every law, therefore, must pass the ordeal of all branches of the government, (if brought before them), before it can be executed.

The constitution (Art. 1, Sec. 6), protects those who make an unconstitutional law,—that is, “the Senators and Representatives,”—from any legal responsibility for the act, by providing that “for any speech or debate in either house, they shall not be questioned in any other place.” Unless, therefore, those who execute an unconstitutional law, can be held responsible for their acts, there is no crime, however contrary to the constitution, which congress may not authorize to be committed with impunity; and all ideas of there being any legal and practical restraints upon the government of the United States, short of a resort to force, are fallacious.

For all acts, therefore, that are criminal in themselves, the officers of the United States are liable to be tried under the State laws, and punished, unless they show that the acts were done in pursuance of some constitutional law of the United States. And no presumption in favor of the constitutionality of the law can be allowed, if the acts done are criminal in themselves; for the presumption must always be that the constitution authorizes nothing criminal in itself.

In the trial of an United States officer for a crime committed under color of an unconstitutional law of Congress, the question whether the law were constitutional, would be a question to be judged of, in the first instance, by a jury. If they held the law unconstitutional, and convicted the defendant, he would have a right of appeal to the Supreme Court of the United States. But corrupt as that court is, they would rarely dare, against the general voice of the juries of the country, to hold a law constitutional, that licensed crimes against the people.

In saying that the officers of the government are bound to know the law, (and consequently to know whether an act of [46] congress be constitutional), I am only laying down the general principle of criminal law—a principle, which the government usually enforces without mercy, against private individuals, and which is certainly as sound when applied to an officer of the government, as when applied to private persons.

But in truth the maxim, that ignorance of the law excuses no one, is a very absurd and unjust one, if applied without any limitation, inasmuch as it would nullify the first principle of criminal law, that there can be no crime without a criminal intent. The rule is also one, which judges themselves could not live under, for they are every day committing errors, which would be crimes, if ignorance were not a legal excuse.

But the rule is a sound one, so far as it is necessary to compel all men, officers of the government, as well as private persons, to use all reasonable and proper diligence to ascertain the law. And where a law requires any thing, that is criminal in itself, an officer is bound to act with far greater caution, and to use far greater diligence, to ascertain whether it be constitutional, than he is where the act required to be done is right in itself—because the presumption of law is always in favor of justice. Nothing, therefore, but entirely clear and conclusive proof of the constitutionality of a law, ought to justify an officer in executing it, if it require him to do any thing that is intrinsically criminal.

This liability of the officers of the United States, to the criminal laws of the states, is no hardship upon them—for it applies only in cases where the acts done by them are mala in se, criminal in themselves. And they, like other men, can be convicted only where the jury find that they either knew that the acts done by them were intrinsically criminal, or were culpably ignorant of their character in that respect. Now, it would really be no hardship that a man should be punished for an act, that he knew to be to be intrinsically criminal, even though it were authorized by all the governments in the world; because governments have no rightful power to authorize such acts, and their authority is, morally speaking, no justification to the agent. An officer of the government, who performs an act criminal in itself, does [47] it voluntarily for hire, (for he is at liberty to resign his office); and he has no more moral excuse for the act than any other man has, who perpetrates a crime for pay. It is therefore a special grace, and bad enough in principle, to allow officers of the government, in any case, to set up a law of the government, as an excuse for a known crime. If this grace be extended so as to allow an unconstitutional law, (which is really no law at all), to be used as a justification for crimes, we in reality license the government to perpetrate all crimes at pleasure.

The question now arises, whether these fugitive slave laws are so plainly unconstitutional, as to afford no legal excuse for those who execute them?

In the first place, there would seem to be no doubt, so far as the commissioners are concerned. The acts required of them are judicial acts; yet they plainly are not judicial officers, within the meaning of the constitution. And inasmuch as the act of delivering a man into bondage is intrinsically a crime, they are inexcusable for assuming judicial powers for the purpose of executing it.

The objection which lies against the commissioners, on account of the tenure of their offices, and their want of fixed salaries, does not apply to judges of the established courts. But all the other grounds of unconstitutionality are as strong in the case of the judges as in the case of the commissioners. And the question is, whether an act of Congress, requiring that a man—found in a free state, and prima facie a free man and citizen of the United States—be delivered into slavery; without a trial by jury; on ex parte evidence; and a part of that ex parte evidence taken in another state, by a state “court, or judge thereof in vacation,” and made binding upon the United States court that delivers him up; denying him the right to give his own testimony; and depriving him, by “a summary manner” of proceeding, of all opportunity of procuring other testimony in his favor; be so plainly unconstitutional, that a jury would be bound to hold a judge guilty of a criminal intent in executing it?

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That the act of delivering a man into slavery is intrinsically a crime of a high grade no one can deny. The presumption of law therefore, is, that the constitution gives no authority for it. The burden is therefore upon the judge to show that the acts of Congress are so clearly constitutional, as to overcome this presumption, and justify the act. If he can show this, he is entitled to the benefit of it; otherwise not.

To illustrate the principles here maintained, let us suppose that Congress pass an act for the trial and punishment of traitors; providing that a person accused of treason, may be tried and convicted wholly on ex parte evidence; that ex parte evidence, taken in another state than the one in which he is tried, and before “any (state) court of record, or judge thereof in vacation,” “shall be held and taken (by the United States court) to be full and conclusive evidence of the treason,” leaving nothing but the identity of the individual to be proved on the trial; enacting also that he shall be tried “forthwith,” after being arrested, and “in a summary manner,” that will allow him no opportunity to procure evidence in his defence; that he shall not have a trial by jury, as the constitution requires that he shall have; but that he shall be tried by a single judge; (and that judge, it may be, not one having a fixed salary, and therefore free from any pecuniary interest in his conviction, but one depending solely upon fees for his pay, and who is to receive ten dollars if he convict the accused, and sentence him to death, and but five dollars if he acquit him); enacting further that, in case of conviction, no appeal shall be allowed to a higher court on any question of either law or fact; that no writ of habeas corpus shall be issued in his behalf; but that, on the contrary, the judge, that convicted him, shall at once issue his warrant to the marshal, requiring him, under penalty of a thousand dollars, to hang the man immediately before he can be rescued by the people; suppose all this, and does any one doubt that the judge, marshal, and every body else who should assist in executing the law, would be bound to know that such a law was unconstitutional, and would therefore be guilty of murder in executing [49] it? and liable to be punished as murderers under the laws of the state, in which the transaction occurred? Yet what difference is there, in principle, between that case, and a case of kidnapping under the statutes we have been discussing? If there be any difference, sufficient to constitute a valid excuse, the government officers must go acquitted of their crime; otherwise they must be convicted.

The same principles of responsibility to the criminal laws of a state, that apply to judges, commissioners, and marshals, apply also to the militia, who turn out, at the command of the president, to assist in enforcing an unconstitutional law. If the militia are bound to know nothing of the constitutionality of a law of Congress, or to know no law but the orders of a superior officer, we live under a military despotism.

In addition to these liabilities to the criminal law, the officiers of the United States are liable to civil suits for damages, if they execute an unconstitutional law of Congress to the injury of private persons. And judgments recovered in the state courts could be invalidated, if at all, only on an appeal to the supreme court of the United States.

Finally. If these fugitive slave laws are unconstitutional, the delivery of persons into slavery under color of them, is a crime; and the state magistrates, on application to them, are bound to place the officers of the United States under bonds to keep the peace in this particular. If those officers then proceed, contrary to the obligation of their bonds, to execute the law, their bonds are liable to be enforced, unless invalidated on an apppeal to the supreme court of the United States.

Unless these principles be sound, it is manifest that the states have no power to protect their citizens against any crimes, which Congress, by unconstitutional enactments, may please to license to be committed against them.

APPENDIX.

A: Neither the Constitution, nor either of the acts of Congress of 1793 or 1850, requires the surrender of Fugitive Slaves.

In the preceding chapters, it has been admitted, for the sake of the argument, that the constitution, and the acts of Congress of 1793 and 1850, require the delivery of Fugitive Slaves. But such really is not the fact. Neither the constitutional provision, nor either of said acts of congress, uses the word slave, nor slavery, nor any language that can legally be made to apply to slaves. The only “person” required by the constitution to be delivered up, is described in the constitution as a “person held to service or labor in one state, under the laws thereof.” This language is no legal description of a slave, and can be made to apply to a slave only by a violation of all the most imperative rules of interpretation, by which the meaning of all legal instruments is to be ascertained.

The word “held” is a material word in this description. Its legal meaning is synonymous with that of the words “bound,” and “obliged.” It is used in bonds, as synonymous with those words, and in no other sense. It is also used in laws and other legal instruments. And its legal meaning is to describe persons held by some legal contract, obligation, duty, or authority, which the law will enforce. Thus, in a bond, a man acknowledges himself “held, and firmly bound and obliged” to do certain things mentioned in the bond,—and the law will compel a fulfillment of the obligation. The laws “hold” men to do various things; and by holding them to do those things, is meant that the laws will compel them to do them. Wherever a person is described in the laws as being “held” to do any thing,—as to render “service or labor,” for example,—the legal meaning invariably is that he is held by some legal contract, obligation, duty, or authority, which the laws will enforce,—(either specifically, or by compelling payment of damages for non-performance). I presume no single instance can be found, in any of the laws of this country, since its first settlement, in which the word “held” is used in any other than this legal sense, when used to describe a person who is “held” to do any thing, “under the laws.” And such is its meaning, and its only meaning, in this clause of the constitution. If there could be a doubt on this point, that doubt would be removed by the additional words, “under the laws,” and the word “due” as applied to the “service or labor,” to which the person is “held.”

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Now a slave is not “held” by any legal contract, obligation, duty, or authority, which the laws will enforce. He is “held” only by brute force. One person beats another until the latter will obey him, work for him, if he require it, or do nothing if he require it. This is slavery, and the whole of it. This is the only manner in which a slave is “held to service or labor.”

The laws recognize no obligation on the part of the slave to labor for or serve his master. If he refuse to labor, the law will not interfere to compel him. The master must do his own flogging, as in the case of an ox or a horse. The laws take no more cognizance of the fact whether a slave labors or not, than it does of the fact whether an ox or a horse labors.

A slave then is no more “held” to labor, in any legal sense, than a man would be in Massachusetts, whom another person should seize and beat until he reduced him to subjection and obedience. If such a man should escape from his oppressor, and take refuge in Carolina, he could not be claimed under this clause of the constitution, because he would not be “held” in any legal sense, (that is, by any legal contract, obligation, duty, or authority), but only by brute force. And the same is the case in regard to slaves. Senator Mason of Virginia, in the extract before given from his speech, virtually admits this to be the fact.*

It is an established rule of legal interpretation, that a word used in laws, to describe legal rights, must be taken in a legal sense. This rule is as imperative in the interpretation of the constitution, as of any other legal instrument. To prove this, let us take another example. The constitution (Art. 1, Sec. 6), provides that “for any speech or debate in either house, they (the Senators and Representatives) shall not be questioned in any other place.” Now this provision imposes no restriction whatever upon the Senators and Representatives being “questioned for any speech or debate,” by any body and every body, who may please to question them, or in any and every place,—with this single exception, that they must not “be questioned” legally,—that is, they must not be held to any legal accountability.

It would be no more absurd to construe this provision about questioning Senators and Representatives, so as to make it forbid the people, in their private capacity, to ask any questions of their Senators and Representatives, on their return from Congress, as to their doings there, instead of making it apply simply to a legal responsibility, than it is to construe the words “held to service or labor,” as applied to a person held simply by brute force, (as in the case supposed in Massachusetts), instead of persons held by some legal contract, obligation, or duty, which the law will enforce.

As the slave, then, is “held to service or labor,” by no contract, obligation, or duty, which the law will enforce, but only by the brute force of the master, the provision of the constitution in regard to “persons held to service or labor” can have no more legal application to him, than to the person supposed in Massachusetts, who should at one time be beaten into obedience, and afterwards escape into Carolina.

[52]

The word “held” being, in law, synonymous with the word “bound,” the description, “person held to service or labor,” is synonymous with the description in another Section, (Art. 1, Sec. 2), to wit, “those bound to service for a term of years.” The addition, in the one case, of the words “for a term of years,” does not alter the meaning, for it does not appear that, in the other case, they are “held” beyond a fixed term.

In fact, every body, courts and people, admit that “persons bound to service for a term of years,” as apprentices and other indented servants, are to be delivered up under the provision relative to “persons held to service or labor.” The word “held,” then, is regarded as synonymous with “bound,” whenever it is wished to deliver up “persons bound to service.” If, then, it be synonymous with the word “bound,” it applies only to persons who are “bound,” in a legal sense,—that is, by some legal contract, obligation, or duty, which the law will enforce. The words cannot be stretched beyond their necessary and proper legal meaning; because all legal provisions in derogation of liberty must be construed strictly. The same words that are used to describe a “person held to service or labor,” by a legal contract, or obligation, certainly cannot be legally construed to apply also to one who is “held” only by private violence, and brute force.

Mr. Webster, in his speech of March 7th, 1850, admits that the word “held” is synonymous with the word “bound,” and that the language of the constitution itself contains no requirement for the surrender of fugitive slaves. He says—

“It may not be improper here to allude to that—I had almost said celebrated—opinion of Mr. Madison. You observe sir, that the term slavery is not used in the constitution. The constitution does not require that fugitive slaves shall be delivered up; it requires that persons bound to service in one state, and escaping into another, shall be delivered up. Mr. Madison opposed the introduction, of the term slave or slavery into the constitution; for he said he did not wish to see it recognized by the constitution of the United States of America that there could be property in men.”

Had the constitution required only that “persons bound to service or labor,” should be delivered up, it is evident that no one would claim that the provision applied to slaves. Yet it is perfectly evident also that the word “held” is simply synonymous with the word “bound.”

One can hardly fail to be astonished at the ignorance, fatuity, cowardice, or corruption, that has ever induced the north to acknowledge, for an instant, any constitutional obligation to surrender fugitive slaves.

The Supreme Court of the United States, in the Prigg case, (the first case in which this clause of the constitution ever came under the adjudication of that court), made no pretence that the language itself of the constitution afforded any justification for a claim to a fugitive slave. On the contrary, they made the audacious and atrocious avowal, that for the sole purpose of making the clause apply to slaves, they would disregard,—as they acknowledged themselves obliged to disregard,—all the primary, established, and imperative rules of legal interpretation, and be governed solely by the history of men’s intentions, outside of the constitution. Thus they say:

[53]

“Before, however, we proceed to the points more immediately before us, it may be well,—in order to clear the case of difficulty,—to say, that in the exposition of this part of the constitution, we shall limit ourselves to those considerations which appropriately and exclusively belong to it, without laying down any rules of interpretation of a more general nature. It will, indeed, probably, be found, when we look to the character of the constitution itself, the objects which it seeks to attain, the powers which it confers, the duties which it enjoins, and the rights which it secures, as well as the known historical fact that many of its provisions were matters of compromise of opposing interests and opinions; that no uniform rule of interpretation can be applied to it, which may not allow, even if it does not positively demand, many modifications in its actual application to particular clauses. And, perhaps, the safest rule of interpretation after all will be found to be to look to the nature and objects of the particular powers, duties, and rights, with all the lights and aids of contemporary history; and to give to the words of each just such operation and force, consistent with their legitimate meaning, as may fairly secure and attain the ends proposed. * * * * Historically, it is well known, that the object of this clause was to secure to the citizens of the slaveholding states the complete right and title of ownership in their slaves, as property, in every state in the Union into which they might escape from the state where they were held in servitude.”

16 Peters, 610-11.

Thus it will be seen, that on the strength of history alone, they assume that “many of the provisions of the constitution were matters of compromise,” (that is, in regard to slavery); but they admit that the words of those provisions cannot be made to express any such compromise, if they are interpreted according to any “uniform rule of interpretation,” or “any rules of interpretation of a more general nature,” than the mere history of those particular clauses. Hence, “in order to clear the case of (that) difficulty,” they conclude that “perhaps the safest rule of interpretation after all will be found to be to look to the nature and objects of the particular powers, duties, and rights, with all the lights and aids of contemporary history; and to give to the words of each just such operation and force, consistent with their legitimate meaning, as may fairly secure and attain the ends proposed.”

The words “consistent with their legitimate meaning,” contain a deliberate falsehood, thrown in by the court from no other motive than the hope to hide, in some measure, the fraud they were perpetrating. If it had been “consistent with the legitimate meaning of the words” of the clause, to apply them to slaves, there would have been no necessity for discarding, as they did, all the authoritative and inflexible rules of legal interpretation, and resorting to history to find their meaning. They discarded those rules, and resorted to history, to make the clause apply to slaves, for no other reason whatever, than that such meaning was not “consistent with the legitimate meaning of the words.” It is perfectly apparent that the moment their eyes fell upon the “words” of the clause, they all saw that they contained no legal description of slaves.

Stripped, then, of the covering, which that falsehood was intended to throw over their conduct, the plain English of the language of the Court is this,—that history tells us that certain clauses of the constitution were intended to recognize and support slavery; but inasmuch as such is not the legal meaning of the words of those clauses, if interpreted by the established rules of interpretation, we will, “in order to clear the case of (that) difficulty,” just discard those [54] rules, and pervert the words so as to make them accomplish whatever ends history tells us were intended to be accomplished by them.

It was only by such a naked and daring fraud as this, that the court could make the constitution authorize the recovery of fugitive slaves.

And what were the rules of interpretation, which they thus discarded, “in order to clear the case of difficulty,” and make the constitution subserve the purposes of slavery? One of them is this, laid down by the Supreme Court of the United States:

“The intention of the instrument must prevail; this intention must be collected from its words.”

12 Wheaton, 332.

Without an adherence to this rule, it is plain we could never know what was, and what was not, the constitution.

Another rule is that universal one, acknowledged by all courts to be imperative, that language must be construed strictly in favor of liberty and justice.

The Supreme Court of the United States have laid down this rule in these trong terms.

“Where rights are infringed, where fundamental principles are overthrown, where the general system of the laws is departed from, the legislative intention must be expressed with irresistible clearness, to induce a court of justice to suppose a design to effect such objects.”

United States vs. Fisher, 2 Cranch, 390.

Story delivered this opinion of the court, (in the Prigg case), discarding all other rules of interpretation, and resorting to history to make the clause apply to slaves. And yet no judge has ever scouted more contemptuously than Story, the idea of going out of the words of a law, or the constitution, and being governed by what history may say were the intentions of the authors. He says,

“Such a doctrine would be novel and absurd. It would confuse and destroy all the tests of constitutional rights and authorities. Congress could never pass any law without an inquisition into the motives of every member; and even then they might be re-examinable. Besides, what possible means can there be of making such investigations? The motives of many of the members may be, nay must be, utterly unknown, and incapable of ascertainment by any judicial or other inquiry; they may be mixed up in various manners and degrees; they may be opposite to, or wholly independent of each other. The constitution would thus depend upon processes utterly vague, and incomprehensible; and the written intent of the legislature upon its words and acts, the lex scripta, would be contradicted or obliterated by conjecture, and parol declarations, and fleeting reveries, and heated imaginations. No government on earth could rest for a moment on such a foundation. It would be a constitution of sand, heaped up and dissolved by the flux and reflux of every tide of opinion. Every act of the legislature, (and for the same reason also every clause of the constitution), must therefore be judged of from its objects and intent, as they are embodied in its provisions.”

2 Story’s Comm., 534.

Also he says,

The constitution was adopted by the people of the United States; and it was submitted to the whole, upon a just survey of its provisions, as they stood in the text itself. * * Opposite interpretations, and different explanations of different provisions, may well be presumed to have been presented in different bodies, to remove local objections, or to win local favor. And there can be no certainty, either that the different state conventions, in ratifying the constitution, gave the same uniform interpretation to its language, or that, even in a [55] single state convention, the same reasoning prevailed, with a majority, much less with the whole, of the supporters of it. * * It is not to be presumed that even in the convention which framed the constitution, from the causes above mentioned, and other causes, the clauses were always understood in the same sense, or had precisely the same extent of operation. Every member necessarily judged for himself; and the judgment of no one could, or ought to be, conclusive upon that of others. * * Nothing but the text itself was adopted by the people. * * Is the sense of the constitution to be ascertained, not by its own text, but by the ‘probable meaning,’ to be gathered by conjectures from scattered documents, from private papers, from the table-talk of some statesman, or the jealous exaggerations of others? Is the constitution of the United States to be the only instrument, which is not to be interpreted by what is written, but by probable guesses, aside from the text? What would be said of interpreting a statute of a state legislature, by endeavoring to find out, from private sources, the objects and opinions of every member; how every one thought; what he wished; how he interpreted it? Suppose different persons had different opinions, what is to be done? Suppose different persons are not agreed as to the ‘probable meaning’ of the framers, or of the people, what interpretation is to be followed? These, and many questions of the same sort, might be asked. It is obvious, that there can be no security to the people in any constitution of government, if they are not to judge of it by the fair meaning of the words of the text, but the words are to be bent and broken by the ‘probable meaning’ of persons, whom they never knew, and whose opinions, and means of information, may be no better than their own? The people adopted the constitution, according to the words of the text in their reasonable interpretation, and not according to the private interpretation of any particular men.”

1 Story’s Comm. on Const., 387 to 392.

And Story has said much more of the same sort as to the absurdity of relying upon “history” for the meaning of the constitution.

It is manifest that if the meaning of the constitution is to be warped in the least, it may be warped to any extent, on the authority of history; and thus it would follow that the constitution would in reality be made by the historians, and not by the people. It would be impossible for the people to make a constitution, which the historians might not change at pleasure, by simply asserting that the people intended thus or so.

But, in truth, Story and the court, in saying that history tells us that the clause of the constitution in question, was intended to apply to fugitive slaves, are nearly as false to the history of the clause, as they are to its law.

There is not, I presume, a word on record, (for I have no recollection of having ever seen or heard of one), that was uttered either in the national convention that framed the constitution, or in any northern state convention that ratified it, that shows that, at the time the constitution was adopted, any northern man had the least suspicion that the clause of the constitution, in regard to “persons held to service or labor,” was ever to be applied to slaves.

In the national convention, “Mr. Butler and Mr. Pinckney moved to require ‘fugitive slaves and servants to be delivered up like criminals.’ ” “Mr. Sheiman saw no more propriety in the public seizing and surrendering a slave or servant, than a horse.”

(Madison papers, 1447-8.)

In consequence of this objection, the provision was changed, and its language, as it now stands, shows that the claim to the surrender of slaves was abandoned, and only the one for servants retained.*

[56]

It does not appear that a word was ever uttered, in the national convention, to show that any member of it imagined that the provision, as finally agreed upon, would apply to slaves.

But after the national convention had adjourned, Mr. Madison went home to Virginia, and Mr. Pinckney, to South Carolina, and in the State conventions of those states, set up the pretence that the clause was intended to apply to slaves. I think there is no evidence that any other southern member of the national convention followed their example. In North Carolina, Mr. Iredell, (not a member of the national convention), said the provision was intended to refer to slaves; but that “The northern delegates, owing to their particular scruples on the subject of slavery, did not choose the word slave to be mentioned.”

I think the declarations of these three men, Madison, Pinckney, and Iredell, are all the “history,” we have, that even southern men, at that time, understood the clause as applying to slaves.

In the northern conventions no word was ever uttered, so far as we have any evidence, that any man dreamed that this language would ever be understood as authorizing a claim for fugitive slaves. It is incredible that it could have passed the northern conventions without objection, (indeed it could not have passed them at all), if it had been understood as requiring them to surrender fugitive slaves; for, in several of them, it was with great difficulty that the adoption of the constitution was secured, when no such objection was started.

The construction, placed upon the provision at the present day, is one of the many frauds which the slaveholders, aided by their corrupt northern accomplices, have succeeded in palming off upon the north. In fact the south, in the convention, as it has ever done since, acted upon the principle of getting by fraud, what it could not openly obtain. It was upon this principle that Mr. Madison acted when he said that they ought not to admit, in the constitution, the idea that there could be property in man. He would not admit that idea, in the constitution itself; but he immediately went home and virtually told the State convention that that was the meaning which he intended to have given to it in practice. He knew well that if that idea were admitted in the instrument itself, the north would never adopt it. He therefore conceived and adhered to the plan of having the instrument an honest and free one in its terms, to secure its adoption by the north, and of then trusting to the fraudulent interpretations that could be accomplished afterwards, to make it serve the purposes of slavery.

Further proof of his fraudulent purpose, in this particular, is found in the fact that he wrote the 42d number of the Federalist, in which he treats of “the powers which provide for the harmony and proper intercourse among the states.” But he makes no mention of the surrender of fugitives from “service or labor,” as one of the means of promoting that “harmony and proper intercourse.” He did not then dare say to the north that the south intended ever to apply that clause to slaves.

But it is said that the passage of the act of 1793, shows that the north understood the constitution as requiring the surrender of fugitive slaves. That act is supposed to have passed without opposition from the north; and the reason [57] was that it contained no authority for, or allusion to, the surrender of fugitive slaves; but only to fugitives from justice, and “persons held to service or labor.” The south had not at that time become sufficiently audacious to make such a demand. And it was twenty-three years, so far as I have discovered, (and I have made reasonable search in the matter), after the passage of that act, before a slave was given up, under it, in any free state, or the act was acknowledged by the supreme court of any free state, to apply to slaves.

In 1795, two years after the passage of the act of congress, and after the constitution had been in force six years, a man was tried in the supreme court of Pennsylvania, on an indictment, under a statute of the state, against seducing or carrying negroes or mulattoes out of the state with the intention to sell them, or keep them, as slaves.

“Upon the evidence, in support of the prosecution, it appeared that negro Toby had been brought upon a temporary visit to Philadelphia, as a servant in the family of General Sevier, of the state of Virginia; that when General Sevier proposed returning to Virginia, the negro refused to accompany him”—but was afterwards forcibly carried out of the state. It appeared also in the evidence, that it was proposed, by Richards, the defendant, that the negro be enticed into New Jersey, (a slave state), and there seized and carried back to Virginia.

“The evidence, on behalf of the defendant, proved that Toby was a slave belonging to the father of General Sevier, who had lent him to his son, merely for the journey to Philadelphia.”

The defendant was found not guilty, agreeable to the charge of the Chief Justice; and what is material is, that the case was tried wholly under the laws of Pennsylvania, which permitted any traveller, who came into Pennsylvania, upon a temporary excursion for business or amusement, to detain his slave for six months, and entitled him to the aid of the civil police to secure and carry him away.

Republica vs. Richards 2 Dallas 224.

Not one word was said, by either court or counsel, of the provision of the United States constitution, in regard to “persons held to service or labor,” or of the act of 1793, as having any application to slaves, or as giving any authority for the recovery of fugitive slaves. Neither the constitution, nor the act of Congress was mentioned in connection with the subject.

Is it not incredible that this should have been the case, if it had been understood, at that day, that either the constitution, or the act of 1793, applied to slaves?

Would a man have used force in the case, and thus subjected himself to the risk of an indictment under the state laws? or would there have been any proposition to entice the slave into a slave state, for the purpose of seizing him, if it had been understood that the laws of the United States were open to him, and that every justice of the peace (as provided by the act of 1793) was authorized to deliver up the slave?

It cannot reasonably be argued that it was necessary to use force or fraud to take the slave back, for the reason that he had been brought, instead of having escaped, into Pennsylvania, for that distinction seems not to have been thought of until years after. The first mention I have found of it was in 1806.

Butler vs. Hopper, 1 Washington C. C. R. 499.

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In 1812 it was first acknowledged by the supreme court of New York, that the act of 1793, applied to slaves, although no slave was given up at the time. But New York then had slaves of her own.

Glen vs. Hodges, 9 Johnson 67.

In 1816 the supreme court of Pennsylvania first acknowledged that the constitution and the act of 1793 applied to slaves. But no slave was then given up.

Commonwealth vs. Holloway, 2 Sargent & Rawle 305.

In 1823 the supreme court of Massachusetts first acknowledged that the constitutional provision in regard to “persons held to service or labor” applied to slaves.

Commonwealth vs. Griffith, 2 Pickering 11.

Few, if any, slaves have ever been given up under the act of 1793, in the free states, until within the last twenty or thirty years. And that fact furnishes ground for a strong presumption that during the first thirty years after the constitution went into operation, it was not generally understood, in the free states, that the constitution required the surrender of fugitive slaves.

But it is said that the ordinance of 1787, passed contemporaneously with the formation of the constitution, requires the delivery of fugitive slaves, and that the constitution ought to be taken in the same sense. The answer to this allegation is that the ordinance does not require the delivery of fugitive slaves, but only of persons “from whom labor or service is lawfully claimed.” This language certainly is no legal description of a slave.

But beyond, and additional to, all this evidence, that the constitution does not require the surrender of fugitive slaves, is the conclusive and insuperable fact, that there is not now, nor ever has been, any legal or constitutional slavery in this country, from its first settlement. All the slavery that has ever existed, in any of the colonies or states, has existed by mere toleration, in defiance of the fundamental constitutional law.

Even the statutes on the subject have either wholly failed to declare who might, and who might not, be made slaves, or have designated them in so loose and imperfect a manner that it would probably be utterly impossible, at this day, to prove under those statutes, the slavery of a single person now living. Mr. Mason admits as much in the extracts already given from his speech.

But all the statutes, on that subject, whatever the terms, have been unconstitutional, whether passed under the colonial charters, or since under the state governments. They were unconstitutional under the colonial charters, because those charters required the legislation of the colonies to “be conformable, as nearly as circumstances would allow, to the laws, customs, and rights of the realm of England.” Those charters were the fundamental constitutions of the colonies, and of course made slavery illegal in the colonies—inasmuch as slavery was inconsistent with the “laws, customs, and rights of the realm of England.”*

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There was therefore no legal slavery in this country, so long as we were colonies—that is, up to the time of the revolution.

After the Declaration of Independence, new constitutions were established in eleven of the states. Two went on under their old charters. Of all the new constitutions, that were in force at the adoption of the constitution of the United States, in 1789, not one authorized, recognized, or sanctioned slavery.* All the recognitions of slavery, that are now to be found in any of the state constitutions, have been inserted since the adoption of the constitution of the United States.

There was therefore no legal or constitutional slavery, in any of the states, up to the time of the formation and adoption of the constitution of the United States, in 1787 and 1789.

There being no legal slavery in the country, at the adoption of the constitution of the United States, all “the people of the United States” become legally parties to that instrument, and of course members of the United States government, by its adoption. The constitution itself declares that “We the people of the United States * * do ordain and establish this constitution.” The term “people” of necessity includes the whole people; no exception being made, none can be presumed—for such a presumption would be a presumption against liberty.

After “the people” of the whole country had become parties to the constitution of the United States, their rights as members of the United States government were secured by it, and they could not afterwards be enslaved by the state governments—for the constitution of the United States is “the supreme law,” (operating “directly on the people and for their benefit,” say the supreme court, 4 Wheaton 404-5), and necessarily secures to all the people individually [60] all the rights it intended to secure to any; and these rights are such as are incompatible with their being enslaved by subordinate governments.

But it will be said that the constitution of the United States itself recognizes slavery, to wit, in the provision requiring “the whole number of free persons” and “three fifths of all other persons” to be counted in making up the basis of representation and taxation. But this interpretation of the word “free” is only another of the fraudulent interpretations, which the slaveholders and their northern accomplices have succeeded in placing upon the constitution.

The legal and technical meaning of the word “free,” as used in England for centuries, has been to designate a native or naturalized member of the state, as distinguished from an alien, or foreigner not naturalized. Thus the term “free British subject” means, not a person who is not a slave, but a native born, or naturalized subject, who is a member of the state, and entitled to all the rights of a member of the state, in contradistinction to aliens, and persons not thus entitled.

The word “free” was used in this sense in nearly or quite all the colonial charters, the fundamental constitutions of this country, up to the time of the revolution. In 1787 and 1789, when the United States constitution was adopted, the word “free” was used in this political sense in the constitutions of the three slaveholding states, Georgia, South Carolina, and North Carolina. It was also used in this sense in the articles of Confederation.*

The word “free” was also used in this political sense in the ordinance of 1787, in four different instances, to wit, three times in the provision fixing the basis of representation, and once in the article of compact, which provides that when the states to be formed out of the territory should have sixty thousand free inhabitants, they should be entitled to admission into the Confederacy.

That the word “free” was here used in its political sense, and not as the correlative of slaves, is proved by the fact that the ordinance itself prohihited slavery in the territory. It would have been absurd to use the word “free” as the correlative of slaves, when slaves were to have no existence under the ordinance.

This political meaning, which the word “free” had borne in the English law, and in all the constitutional law of this country, up to the adoption of the constitution of the United States, was the meaning which all legal rules of interpretation required that congress and the courts should give to the word in that instrument.

But we are told again that the constitution recognizes the legality of the slave trade, and by consequence the legality of slavery, in the clause respecting the “importation of persons.” But the word “importation,” when applied to “persons,” no more implies that the persons are slaves, than does the word “transportation.” It was perfectly understood, in the convention that framed the constitution—and the language was chosen with special care to that end—that there was nothing in the language itself, that legally recognized the slavery of the persons to be imported; although some of the members, (how many [61] we do not know), while choosing language with an avowed caution against “admitting, in the constitution, the idea that there could be property in man,” intended, if they could induce the people to adopt the constitution, and could then get the control of the government, to pervert this language into a license to the slave trade.

This fraudulent perversion of the legal meaning of the language of the constitution, is all the license the constitution ever gave to the slave trade.

Chief Justice Marshall, in the case of the Brig Wilson, (1 Brockenbrough, 433-5), held that the words “import” and “imported,” in an act of Congress, applied to free persons as well as to slaves. If, then, the word “importation,” in the constitution, applies properly to free persons, it certainly cannot imply that any of the persons imported are slaves.

If the constitution, truly interpreted, contain no sanction of slavery, the slaves of this country are as much entitled to the writ of habeas corpus at the hands of the United States government, as are the whites.

B: Authorities for the Right of the Jury to judge of the Law in Criminal Cases.

The House of Representatives of the United States, by a vote of more than two to one, once affirmed the right of the jury to judge of the law, in criminal cases, to be an “indisputable right,”—and impeached one of the Justices of the Supreme Court of the United States for infringing it. The following is a copy of the caption, and one of the articles, of an impeachment, found by the House of Representatives, (in 1804), against Samuel Chase, one of the Judges of the Supreme Court.

“Articles exhibited by the House of Representatives of the United States, in the name of themselves, and of all the people of the United States, against Samuel Chase, one of the Associate Justices of the Supreme Court of the United States, in maintenance and support of their impeachment against him, for high crimes and misdemeanors.”

ARTICLE I.

That, unmindful of the solemn duties of his office, and contrary to the sacred obligation by which he stood bound to discharge them “faithfully and impartially, and without respect to persons,” the said Samuel Chase, on the trial of John Fries, charged with treason before the Circuit Court of the United States, held for the district of Pennsylvania, in the city of Philadelphia, during the months of April and May, one thousand eight hundred, whereat the said Samuel Chase presided, did, in his judicial capacity, conduct himself in a manner highly arbitrary, oppressive, and unjust, viz.

1. In delivering an opinion, in writing, on the question of law, on the construction of which, the defence of the accused materially depended, tending to prejudice the minds of the jury against the case of the said John Fries, the prisoner, before counsel had been heard in his defence.

2. In restricting the counsel for the said Fries from recurring to such English authorities as they believed apposite; or from citing certain statutes of the [62] United States, which they deemed illustrative of the positions, upon which they intended to rest the defence of their client.

3. In debarring the prisoner from his constitutional privilege of addressing the jury (through his counsel) on the law, as well as on the fact, which was to determine his guilt, or innocence, and at the same time endeavoring to wrest from the jury their indisputable right to hear argument, and determine upon the question of law, as well as the question of fact, involved in the verdict which they were required to give:

In consequence of which irregular conduct of the said Samuel Chase, as dangerous to our liberties, as it is novel to our laws and usages, the said John Fries was deprived of the right, secured to him by the eighth article amendatory of the constitution, and was condemned to death without having been heard by counsel, in his defence, to the disgrace of the character of the American bench, in manifest violation of law and justice, and in open contempt of the rights of juries, on which, ultimately, rest the liberty and safety of the American people.”

This charge was made by the House of Representatives, against that judge, by a vote of 83 yeas, to 34 nays. Of course, all those who voted for this charge, believed it to be an “indisputable right of the jury to hear argument, (on the law), and determine upon the question of law, as well as the question of fact, involved in the verdict,” and that an infringement of that right was both “dangerous to our liberties,” and “novel to our laws and usages,” a “manifest violation of law and justice,” an “open contempt of the rights of juries, on which, ultimately rest the liberty and safety of the American people.” Whether those who voted nay, had the same opinion on this point, or whether they voted nay on the ground that the fact of the infringement of the right of the jury was not sufficiently proved, does not appear.

The judge was tried by the Senate on this impeachment. On the trial it was proved that, although the judge, before the trial of Fries was commenced, gave notice to the counsel of Fries that he should lay some restrictions upon them, in addressing the jury on the law, and in citing ancient English authorities, which he considered inapplicable and improper, yet when those restrictions were objected to, he gave them notice that they might have full freedom in those particulars. It also appeared that in his charge to the jury, he said to them:

“It is the duty of the court in this case, and in all criminal cases, to state to the jury their opinion of the law arising on the facts; but the jury are to decide on the present and in all criminal cases, both the law and the facts, on their consideration of the whole case.”

But notwithstanding his offer of entire freedom to the counsel of Fries in arguing the law, and citing authorities, as they should think proper, and notwithstanding his charge to the jury, distinctly instructing them that they were judges of the law as well as the fact, in that and in all criminal cases, yet, inasmuch as his conduct at the first had been somewhat arbitrary and improper, and such as it was supposed, might prejudice the minds of the jury against Fries, on the question of law involved in his defence, sixteen out of thirty-four Senators voted to convict the judge, on this charge of infringing the right of the jury to judge of the law. The sixteen Senators, who voted for his conviction, of course held that the jury had the right to judge of the law. And it is not only supposable, but highly probable, that of the eighteen Senators, who voted for his acquittal, [63] some or all held the same opinion, but believed that the judge had not really infringed, or intentionally infringed, the right of the jury in that particular.

Thus we have the decided opinions of eighty-three, out of one hundred and seventeen members of the House of Representatives, and of sixteen out of thirty-four, Senators, of the United States, in favor of the doctrine that the jury have the right to judge of the law,—while there is no distinct evidence that either of the other thirty-four Representatives, or the other eighteen Senators, repudiated the doctrine.

The Supreme Court of the United States also, in a charge given to a jury, in a civil case, (John Jay, Chief Justice, doing it in behalf of the whole court), gave these instructions to them:—

“It may not be amiss, here gentlemen, to remind you of the good old rule, that on questions of fact, it is the province of the jury, on questions of law, it is the province of the court, to decide. But it must be observed, that by the same law that recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this, and on every other occasion, however, we have no doubt you will pay that respect, which is due to the opinion of the court; for, as on the one hand, it is presumed that juries are the best judges of facts, it is, on the other hand, presumable that the court are the best judges of law. But still both objects are lawfully within your power of decision.”

The State of Georgia vs. Brailsford, et al. (3 Dallas 4).

On the 14th of July, 1798, Congress passed an act for punishing certain libels against the government of the United States. By this act it was declared that “the jury who shall try the cause, shall have a right to determine the law and the fact, under the direction of the court, as in other cases.”

The words “under the direction of the court,” may, to unprofessional readers, make the meaning of this provision equivocal. Such readers may think the word “direction,” equivalent to “dictation.” But if that meaning were given to it, the provision would be absurd,—would contradict itself,—for then the jury would not “have the right to determine the law and the fact,” as the statute provides that they shall have; but the law would be determined by the court, and the jury would be bound by their determination. The word “direction,” then must mean something that is consistent with the jury’s “determining the law and the fact,” instead of their being bound by any opinion of the court. And that meaning can only be one that is equivalent to advice, guidance, information, instruction, and assistance, which every body admits that a court have a right, and are bound, to render to a jury, still leaving them finally to determine the matter for themselves,—as we see was done by the Supreme Court in the case just cited.

The use of the words “as in other cases,” is an admission, on the part of Congress and the president, that “in other cases” “the jury have the right to determine the law and the fact.”

In addition to these opinions of Congress, the President, and of the Supreme Court of the United States, I add some other eminent authorities, on both sides of the question.

James Wilson, one of the signers of the Declaration of Independence, one of [64] the most distinguished among the framers of the United States constitution, and afterwards one of the Judges of the Supreme Court of the United States, says,—

“It is true, that, in matters of law, the jurors are entitled to the assistance of the judges; but it is also true that, after they receive it, they have the right of judging for themselves.”

1 Wilson’s Works, 12.

“The Roman juries were judges of law as well as of fact.”

2 Wilson’s Works, 320.

“The antiquity of this institution among the most civilized people of the world, is urged as an argument, that it is founded in nature and original justice. The trial by a jury of our own equals seems to grow out of the idea of just government, and is founded in the nature of things.”

2 Wilson’s Works, 319.

In the case of United States vs. Battiste, Story said it had been the opinion of “the whole of his professional life,” that the jury had not the right to judge of the law.

2 Sumner, 243.

In United States vs. Wilson, Justice Baldwin, of the Supreme Court of the United States, held that the jury had the right to judge of the law.

Baldwin’s C. C. R. 108.

Two years afterwards, in the case of United States vs. Shive, the same judge held that they had not the right to judge of a particular question of law put in issue in that case.

Baldwin’s Rep., 510.

In 1804, the Judges of the Supreme Court of New York, in a case of libel, were equally divided in opinion on the question,—Kent and Thompson being in favor of the right, and Lewis and Livingston against it.

The People vs. Croswell. 3 Johnson’s Cases, 337.

At the next session of the legislature of New York an act concerning libels “passed both houses unanimously” providing,

“That on every such indictment or information, the jury, who shall try the same, shall have a right to determine the law and the fact, under the direction of the court, as in other criminal cases.”

3 Johnson’s Cases, 412.

In Commonwealth vs. Knapp, (1830), the Supreme Court of Massachusetts said,—

“As the jury have the right, and, if required by the prisoner, are bound, to return a general verdict of guilty, or not guilty, they must necessarily, in the discharge of this duty, decide such questions of law as well as of fact, as are involved in the general question. * * *

“It is their duty to decide all points of law, which are involved in the general question of the guilt or innocence of the prisoner.”

10 Pickering, 496.

In Commonwealth vs. Kneeland, (1838), the same court said,—

“In criminal cases, by the form in which the issue is made up, the jury pass upon the whole matter of law and fact.”

20 Pickering, 222.

In Commonwealth vs. Porter, (1845), the same court decided that the jury had not the right to judge of the law, but were bound to take it as laid down to them by the court.

10 Metcalf, 263.

In the case of Townsend vs. the State, the Supreme Court of Indiana held that the jury had not the right to judge of the law.

2 Blackford, 151.

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Two years afterwards, in the cases, Warren vs. the State, and Armstrong vs. the State, the same court held that the jury had the right to judge of the law.

4 Blackford, 150-249.

In the case of Pierce vs. the State, the Supreme Court of New Hampshire held that the jury had not this right.

13 N. H. Rep., 536.

In the case of the State vs. Snow, the Supreme Court of Maine, say,—

“The presiding judge erred, in determining that, in criminal cases, the jury are not the judges of the law as well as the fact. Both are involved in the issue they are called upon to try; and the better opinion very clearly is, that the law and the fact are equally submitted to their determination.”

6 Shepley, 348.

In the case of the State vs. Jones, the Supreme Court of Alabama say,—

“The power of the jury to judge both of law and fact, results necessarily from the very constitution of that body, and from their right to find a general verdict (of not guilty) for the prisoner, which the court cannot disturb * * When a juror is sworn, he is invested with the office of judge, and authorized to pronounce the law in the particular case he has to try, and does so when he renders his verdict, whether he abides by, or disregards the opinion of the court.”

5 Alabama Reports, 672-3.

In the case of Montgomery vs. Ohio, the Supreme Court of Ohio held that the jury had not the right to judge of the law.

11 Ohio Rep., 424.

In Montee vs. Commonwealth, the Supreme Court of Kentucky said,—

“They (the jury), have the right, in all cases, to find a general verdict of guilty or not guilty. As guilt or innocence, is a deduction from the law and facts of the case, the jury must, therefore, necessarily decide the law, incidentally, as well as the facts, before they can say that the accused is guilty or not guilty.”

3 J. J. Marshall, 149.

The constitution of Kentucky declares that “in all indictments for libels, the jury shall have a right to determine the law and the facts, under the direction of the court, as in other cases.”

The constitution of Indiana has the same provision.

The constitution of Illinois has the same provision.

The constitution of Texas has the same provision.

The constitution of Ohio has the same provision.

The constitution of Tennessee provides that “in all indictments for libels, the jury shall have a right to determine the law and the facts, under the direction of the court, as in other criminal cases.”

The constitution of Michigan provides that “in all prosecutions or indictments for libels, * * the jury shall have the right to determine the law and the fact.”

The constitution of Missouri declares that “in all prosecutions for libels, the truth may be given in evidence, and the jury may determine the law and the facts under the direction of the court.”

The constitution of Arkansas provides that “in all indictments for libels, the jury shall have the right to determine the law and the facts.”

The constitution of Wisconsin says that “in all criminal prosecutions or indictments for libel, * * * the jury shall have the right to determine the law and the fact.”

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The constitution of Mississippi declares that “in all prosecutions or indictments for libels, * * * the jury shall have the right to determine the law and the facts under the direction of the court.”

The constitution of Maine declares that “in all indictments for libels, the jury, after having received the direction of the court, shall have a right to determine, at their discretion, the law and the fact.”

The new constitution of New York provides that “in all criminal prosecutions or indictments for libels, * * * the jury shall have the right to determine the law and the fact.”

The foregoing statutory and constitutional provisions for the right of the jury to judge of the law in cases of libel, had their origin in a false decision by Lord Mansfield, in 1784, in which he held that, in the trial of an indictment for libel, the jury had no right to take it upon themselves to judge whether the writing charged as libellous, was really so, or not,—but that they must leave that question wholly with the court.

3 Term Reports, 428 note.

This decision created much agitation in England, inasmuch as its effect was to give to the judiciary the power to restrain, within such limits as it pleased, the freedom of the press, in the discussion of the characters and conduct of public men. To remove any doubts excited by the decision, and to maintain the legitimate freedom of the press, Parliament soon after passed a special act, “that on the trial of an indictment or information for a libel, the jury may give a general verdict of guilty or not guilty, upon the whole matter put in issue, and shall not be required or directed by the court or judge to find the defendant guilty, merely on the proof of the publication by the defendant of the paper charged to be a libel, and of the sense ascribed to the same in the indictment or information.”

Stat. 32 Geo. 3, c. 60.

The purport of this act is that the jury may judge both of the law and the fact.

The example of Parliament was followed extensively in this country, as the preceding citations show.

On the general question of the right of the jury to judge of the law, in criminal cases, there has been for centuries the same disagreement among judges in England as in this country. If this disagreement proves nothing else, it at least proves this, that the permanent judiciary are utterly unworthy to be intrusted with the decision of the law in criminal cases. If after centuries of controversy, they cannot determine a point so important to the liberties of a people as is the one whether the jury may rightfully judge of the law? that is, whether “the country” may judge of its own liberties? they are manifestly unfit to be entrusted with the decision of any other question involving the freedom of the people.

C.: Mansfield’s argument against the Right of the Jury to judge of the law in criminal cases.

Mansfield’s argument, if argument it can be called, against the right of the jury to judge of the law, is this.

“They (the jury) do not know, and are not presumed to know, the law; they are not sworn to decide the law; they are not required to do it. * * The jury ought not to assume the jurisdiction of law; they do not know, and are not presumed to know, any thing of the matter; they do not understand the language, in which it is conceived, or the meaning of the terms; they have no rule to go by but their passions and wishes.” 3 Term Rep. 428 note.

One answer to this argument is, that the jury are the “peers” of the accused, and consequently are supposed to know the law as well as he does. He is presumed to know the law, otherwise he could not be held guilty of a criminal intent in violating it. If, then, he is rightfully presumed to know the law, his “peers” must be presumed equally to know it. If his “peers” do not know the law, then it must be presumed that he did not know it, and that he therefore had no criminal intent in transgressing it.

The effect, therefore, of trial by jury, in criminal cases, is to hold no accused person responsible for a more precise or accurate knowledge of the law, than is common to his fellow men. And this is all that he ought to be held responsible for. If he is to be held responsible for a more accurate knowledge of the law than his “peers”—his fellow-men in the same rank and condition of life—he is liable to be held guilty in law, when he had no criminal intent, and had been guilty of no culpable neglect in ascertaining the law—for that neglect cannot be legally culpable, which is common to the mass of mankind.

Mansfield’s argument goes to this extent, that the common people, (such as juries are composed of), know nothing of the law, and are not presumed to know any thing of it; and yet, if one of their number transgress it, he is then presumed to have known it, and to have had a criminal intent, (without which there can be no crime), in transgressing it.

This doctrine looks as if judges, as well as juries, sometimes “had no rule to go by but their passions and wishes.” Whatever imperfection there may be in the judgment of juries, I apprehend they have never, (unless under the dictation of a court), acted upon so atrocious a principle as the one here avowed by Mansfield.

Mansfield’s argument is the argument of all who oppose the right of the jury to judge of the law. And it seems to prove very satisfactorily that, if the people cannot trust their liberties in their own hands, there is little hope for them at the hands of judges—for the doctrine of those, who oppose the right of the jury to judge of the law, is, that the people must trust their liberties in the hands of judges, whose reasons and rules of judgment are unintelligible to the people, [68] and the justice or injustice of whose decisions the people consequently cannot understand.

This doctrine supposes that it is not necessary that the people should know, for themselves, whether they are living under a just government, or a tyrannical one; that if they are ever punished for doing what they think they have a right to do, and what they think they never gave up their right to do, it is quite sufficient for them to have the word of the judges that the punishment is according to law.

Such liberty as this, Mansfield no doubt thought was good enough for mankind at large. But whether it is such liberty as will always satisfy the people themselves, remains to be seen. They will probably prefer a liberty, that is a little more intelligible, even though it should be, (what in reality it would not be), a little less refined.

The people, it is true, are not very learned in the laws. But they have sufficiently clear ideas of liberty, justice, and men’s natural rights, to be reasonably competent to determine whether, in a given case, one man has infringed the rights of another, and ought to be punished therefor. And it seems to be a somewhat strong trait in the Anglo-Saxon character, that they prefer to trust their liberties in the hands of their “peers,” rather than in the hands of judges, whose pretended superiority in knowledge may be merely a cloak for practising such oppressions as cannot be otherwise justified to the minds of those who are the subjects of them.

Story’s argument is substantially the same with Mansfield’s, (United States vs. Battiste, 2 Sumner, 243.)

Mansfield and Story, I think, are the most distinguished authorities of modern times, against the right of the jury to judge of the law. One would infer from their opinions, and the grounds of them, that neither had ever heard, or supposed that the world had ever heard, of the common law of England, or of such an instrument as Magna Charta.

The idea that, in this country, where the people institute government for the preservation of their rights, and where they must be presumed to know what rights they had in view in so doing, they are not competent, as jurors, to judge when those rights are invaded, is absurd.

It cannot be said that if they judge of the law, their ignorance may be dangerous to the prisoner; because if he be convicted against law, he has his appeal to the court. It is only when they acquit, that their judgment is final. Magna Charta does not say that a man shall be punished by the judgment of his peers; but only that he shall not be punished “unless by the judgment of his peers.” He may be acquitted, but cannot be convicted, against their judgment.

D: Effect of Trial by Jury, in nullifying other Legislation than the Fugitive Slave Laws.

If jurors, in criminal cases, have the right to judge of the law, of its constitutionality, and its justice, the trial by jury can be made efficient for nullifying nearly all unconstitutional and unjust legislation; because it makes it safe to violate, and resist the execution of it.

It would, for instance, make it safe to resist the execution of all those unequal and iniquitous revenue laws, which in reality confiscate ten, twenty, thirty, or fifty per cent of one man’s property, under pretence of taxation, while ninety-nine one-hundredths, more or less, of all the other property of the country goes free of taxation; laws, the object of which is, not only to make one man pay the taxes of others, but also to make the mass of the people pay to a few domestic manufacturers, ten, twenty, thirty, or fifty per cent more for their commodities, than they would be worth in free and open market.

It is as much the duty of a man to defend his property against such laws, as to defend it against pirates and highwaymen. And the execution of such laws would certainly be resisted, if it were understood that jurors had a right, in trying men for such resistance, to judge of the justice of the laws.

The laws against smuggling also, which confiscate a man’s entire cargo, as a punishment for evading a tax gatherer, who, but for the evasion, would have seized a half or a quarter of it, would be nullified by the trial by jury, if it were understood that jurors had a right to judge of the justice of the laws.

The laws against smuggling are unconstitutional, as well as unjust. The constitution gives not the slightest authority for laws, that punish men for concealing their property from the tax gatherer. Men have a natural right to conceal their property; for they may fear other robbers than the tax gatherer. The government must find property before they can tax it; and when they have found it, they are authorized only to tax it. They have no authority to confiscate it, as a punishment to the proprietor for not having voluntarily exposed it for taxation.

The constitution declares simply that “the congress shall have power to lay and collect taxes, duties, imposts, and excises,” &c. Here is no authority for confiscating property, which the owner had refused to expose to, or had attempted to conceal from, the tax gatherer.

The constitution gives no more power to confiscate imported goods, for the reason mentioned, than to confiscate domestic property. Suppose a direct tax were laid, who imagines that congress would have power to confiscate all property, which the owners should refuse to expose to, or should attempt to conceal from, the assessors? Yet they would have the same right in that case, that they have in the case of imported goods; for the constitution makes no distinction, in this particular, between imported and domestic goods.

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The state governments have power to lay taxes also; but who supposes they have power to confiscate property, or punish the owner by imprisonment, because he refuses to disclose how much money he has in his pocket, or attempts to conceal any other property from the assessors? Yet the states have as much power to do so, as have congress.

The true trial by jury would also abolish the government monopoly in the carriage of letters and papers. If mankind have any natural rights, the right of transmitting intelligence to each other, in any way that is intrinsically innocent, is one of them. And juries, if they knew their duties, would sustain that right, by refusing ever to convict a man for exercising it.

The laws against this right is another of the many laws, for which the constitution gives no authority. The constitution says simply that “Congress shall have power to establish post-offices and post roads.” It gives them no power to forbid others to establish post-offices and post roads in competition with those of Congress. Suppose the constitution had said that Congress shall have power to establish stage coaches, steam-boats, and rail-roads, for the transportation of passengers and merchandize; does any one imagine that that would have given them any authority to prohibit others from establishing stage-coaches, steam-boats, and rail-roads in competition with those of Congress? Yet that case would have been a parallel one to the post-office power.

The trial by jury would also open all vacant wild lands to the settler, free of charge by, or interference from, the government. The Creator gave lands, not to governments, but to men. And men have the same natural right to take possession of unoccupied wild lands, without permit from the government, that they have to dip water from the stream, to breathe the air, or enjoy the sunshine. And juries, if they knew their duties, would protect men in the enjoyment of this right, by acquitting them, if indicted as trespassers, or for resisting the government in its attempts to dispossess them of their lands.

What is true of lands, is true also of all mines, salt springs, &c., which men find in the earth. A man has the same right to dig gold out of the earth, without asking permission of the government, if he can find a spot unoccupied by any other man, that he has to dig roots.

In the state governments, the trial by jury would abolish all restrictions upon contracts, that are intrinsically lawful, between man and man. It would, for example, abolish the laws which prohibit free banking, and limit the rates of interest; laws, which make currency scarce, and make credit and capital difficult to be obtained. Also the laws, which forbid the sale of certain commodities, unless inspected by officers of the government; which forbid men to act as pilots, auctioneers, or innholders, unless specially licensed; and all other laws, which require that men obtain a special license from the government for doing any act or business that is intrinsically lawful.

In fact the trial by jury would abolish the whole catalogue of laws against acts not criminal in themselves, by which monopolies are sustained, and men are deprived of their natural rights; laws founded on the principle that the destruction of private rights is promotive of the public good.

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The trial by jury would compel the free administration of justice. A man has a natural right to enforce his own rights, and redress his own wrongs. If one man owe another a debt, and refuse to pay it, the creditor has a natural right to seize sufficient property of the debtor, wherever he can find it, to satisfy the debt. If one man commit a trespass upon the person, property, or character of another, the injured party has a natural right either to chastise the aggressor, or to take compensation for the injury out of his property. But as the government is an impartial party, as between these individuals, it is more likely to do exact justice between them, than the injured individual himself would do. The government also, having more power at its command, is likely to right a man’s wrongs more peacefully than the injured party himself could do it. If therefore, the government will do the work of enforcing a man’s rights, or of redressing his wrongs, free of expense to him, he is under a moral obligation to leave the work in the hands of the government,—but not otherwise. When the government forbids him to enforce his own rights, or redress his own wrongs, and deprives him of all means of obtaining justice, except on the condition of his employing the government to obtain it for him, and of paying the government for doing it, the government becomes itself an accomplice of the oppressor. If the govern, ment will forbid a man to protect his own rights, it is bound to do it for him, free of expense to him. And so long as government refuses to do this, juries, if they knew their duties, would protect a man in defending his own rights.

Probably one half of the community are virtually deprived of all protection for their rights, except what the criminal law affords them. Courts of justice, for all civil suits, are as effectually shut against them, as though it were done by bolts and bars. Being forbidden to maintain their own rights by force,—as, for instance, to compel the payment of debts,—and being unable to pay the expenses of civil suits, they have no alternative but submission to many acts of injustice, against which the government is bound either to protect them, free of expense, or allow them to protect themselves.

The free administration of justice is one of the principles of Magna Charta-Its language is, “We will sell to no man, we will deny no man, nor defer right or justice.” What is it but selling right and justice, to compel a man to pay the cost of it? or any part of the necessary cost of it? There would be the same reason, in compelling a party to pay the judge and the jury for their services, that there is in compelling him to pay the witnesses, or any other necessary charges.

The above principle of Magna Charta is incorporated into many of our state constitutions; but it is a dead letter in all of them. But if the trial by jury were rightly understood, the administration of justice would have to be made free, or juries would protect men in defending their rights by force.

This compelling parties to pay the expenses of civil suits, is one of the many cases, in which government is false to the fundamental principles, on which it is based. What is the object of government but to protect men’s rights? On what principle does a man pay his taxes to the government, except on that of contributing his proportion towards the necessary cost of protecting the rights of [72] all? Yet when his own rights are actually invaded, this government, which he contributes to support, becomes his enemy, and will neither protect his rights, (except at his own cost), nor suffer him to do it himself.

The free administration of justice would promote simplicity and stability in the laws. The mania of legislation would be in a great measure restrained, if the government were compelled to pay the expenses of all the suits that grow out of it.

Endnotes

*

The argument on this point is substantially the same as one embraced in the Letter of Hon. Horace Mann, published in the Boston Atlas, June 10, 1850. Although the argument implies no merit on my part—it being made up of definitions given by the Supreme Court—it may yet be proper for me—by way of avoiding the appearance of plagiarism—to say that it was published in Burritt’s Christian Citizen of June 8th, 1850, two days before the publication of Mr. Mann’s.

*

The Commissioners are probably unconstitutional judicial tribunals for another reason, to wit, that the law, which authorizes their appointment, makes no provision that they “shall hold their offices during good behavior,” as the constitution requires that “judges” shall do. The law says nothing of the tenure, by which they shall hold their offices; it simply provides “That it shall be lawful for the Circuit Court of the United States, to be holden in any district, * * to appoint such and so many discreet persons, in different parts of the district, as such court shall deem necessary, to take acknowledgments of bail and affidavits,” &c.

Stat. 20th Feb., 1812, U. S. Stat. at Large, Vol. 2, p. 678.

I understand the general opinion to be that, under this law, the commissioners are entitled to hold their offices only during the pleasure of the courts that appoint them.

*

In truth, “the acts, records, and judicial proceedings” of a State judge, when exercising a judicial authority purporting to be conferred upon him by the United States, are not even the “acts, records, or judicial proceedings” of the United States—for the United States have no constitutional power to confer any such authority upon him—and consequently his acts, in execution of such an authority, are legally nothing more than his private acts as an individual.

*

On general principles, the testimony of the parties themselves, in all cases, civil and criminal, is legitimate, and neither Congress nor the courts have any authority to exclude it.

In civil cases the testimony of the parties is legitimate, because they alone know the whole truth, as to the matter in controversy, and it is hardly possible to conceive of a case in which it would not be for the interest of one or the other of the parties to disclose it. If, therefore, the parties themselves are allowed to testify, it is morally certain, as a general thing, that the whole truth will be told. If the parties agree in their testimony, the facts of the case are at once ascertained, and the necessity and expense of further testimony is saved. If they disagree, the testimony of third persons can then be brought in as supplementary to that of the parties; and the presumption must be that it will corroborate the party whose testimony is true. But if the testimony of third persons alone is received, there can be no certainty at all that the whole truth is told, in hardly any conceivable case; and consequently there can be no certainty that the decision corresponds with the real merits of the case.

It is absurd to exclude both the parties, on the ground of interest, for two reasons. 1. Because they have the same interests respectively; their opposing interests therefore exactly balance each other; and they consequently stand on a perfect level with each other in that respect. 2. Because, being parties, their interests are necessarily known to the tribunal that weighs their testimony, and that tribunal will of course make the proper allowance for their interests, and judge of the credibility of their testimony accordingly.

In suits in equity, all courts receive the testimony of the parties themselves; and there is no rational ground whatever for making a distinction, in this respect, between suits in equity, and suits in law. Blackstone says,

“It seems the height of judicial absurdity, that in the same cause, between the same parties, in the examination of the same facts, a discovery by the oath of the parties should be permitted on one side of Westminster Hall, (in the equity courts), and denied on the other, (in the law courts); or that judges of one and the same court should be bound by law to reject such a species of evidence, if attempted on a trial at bar, but, when sitting the next day as a court of equity, should be obliged to hear such examinations read, and to found their decrees upon it.”

3 Blackstone, Ch. 28.

In criminal cases, nothing can be more absurd, cruel, or monstrous, nothing more manifestly contrary to all the dictates of humanity, justice, and common sense, than to close the mouth of an accused person, and forbid him to offer any explanation or justification of his conduct, or to give any denial to the testimony brought against him—and thus throw him, for the protection of his life, liberty, and character, upon such evidence of other persons as chance may happen to throw in his way.

No doubt the guilty would generally attempt to hide their guilt by falsehood; but to presume that an accused person will testify falsely, is to presume him guilty before he is heard, which we have no right to do. The law presumes an accused person innocent until he is proved guilty. Consistently with this presumption, the law is bound to presume that he will tell the truth, because, if he be innocent, as the law presumes him to be, the truth would best serve his purpose.

If the principle of shutting the mouth of an accused person, and compelling him to rely for his defence upon such stray evidence as may chance to fall in his way, be a sound one, it should be acted upon always, and everywhere. The father should strike, but never hear, his child. And it should be the same throughout society. A man accused of any thing offensive or injurious to others, should never be allowed, with his own lips, either to deny the act, or justify it.

It is manifest that if such a principle were acted upon in society generally, it would lead to universal war. Yet the principle would be no less absurd or monstrous in society at large, than it is in courts of justice.

The fear of falsehood, which has led to the adoption of this principle, has no justification in practical life; for a guilty man is much more likely to entrap, than to exculpate himself, when he attempts to defend himself by falsehood.

*

In the case of Hill v. Low, the court held that under the law of 1793, the claimant, in a suit for the penalty, against a person for harboring, concealing, or rescuing a fugitive, was under the necessity of proving his property in the fugitive, and that the certificate of the magistrate was not proof. The reasons given for that opinion seem very satisfactory and conclusive, and to be as applicable to a case under the act of 1850 as under that of 1793.—4 Washington C. C. Rep. 327.

*

If however, it should be held that the $1000, required to be paid to the claimant, is in the nature of a penalty, in addition to the fine and imprisonment, it follows that in a suit for that penalty, the jury will have a right to judge of the constitutionality of the law, as in case of an indictment.

*

In all criminal cases, the jury are told that the defendant has “for trial, put himself upon the country, which country you are.”

*

By Hon. Horace Mann.

*

If judges were made amenable to the people by election, we might have more hope of their having some respect for the rights of the people.

*

I am confident that Mr. Calhoun made the same admission within two or three years last past, but I have not the paper containing it at hand.

*

Servants were, at that time, a very numerous class in all the states; and there were many laws respecting them, all treating them as a distinct class from slaves.

*

Washburn, in his “Judicial History of Massachusetts,” (p. 202), says,

“As early as 1770, and two years previous to the decision of Somersett’s case so famous in England, the right of a master to hold a slave had been denied, by the Superior Court of Massachusetts, and upon the same grounds, substantially, as those upon which Lord Mansfield discharged Somersett, when his case came before him. The case here alluded to, was James vs. Lechmere, brought by the Plaintiff, a negro, against his master to recover his freedom.”

*

Perhaps it may be claimed by some that the constitution of South Carolina was an exception to this rule. By that constitution it was provided that the qualifications of members of the Senate and House of Representatives “shall be the same as mentioned in the election act.”

“The election act” was an act of the Provincial Assembly passed in 1759, which provided that members of the assembly “shall have in this province a settled plantation or freehold estate of at least five hundred acres of land, and twenty slaves.”

But this act was necessarily void, so far as the requirement in regard to slaves was concerned, because slavery being repugnant to the laws of England, it could have no legal existence in the colony, which was restricted from making any laws except such as were conformable, as nearly as circumstances would allow, to the laws, statutes, and rights of the realm of England.

This part of the act, then, being void at the time it was passed, and up to the time of the adoption of the constitution of the State, the provision in that constitution could not legally be held to give force to this part of the act. Besides, there could be no slaves, legally speaking, in 1778, for the act to refer to.

*

For proof that such was the meaning of the word “free” in those instruments, I must refer to my argument on “The Unconstitutionality of Slavery.”

T.11 An Essay on the Trial by Jury (1852).↩

Title

[11.] An Essay on the Trial by Jury (Boston: John P. Jewett and Co., 1852).

- also online </titles/2181>.

Text

NOTICE TO ENGLISH PUBLISHERS.

The author claims the copyright of this book in England, on Common Law principles, without regard to acts of parliament; and if the main principle of the book itself be true, viz., that no legislation, in conflict with the Common Law, is of any validity, his claim is a legal one. He forbids any one to reprint the book without his consent.

Stereotyped by

HOBART & ROEBINS;

New England Type and Stereotype Foundary,

BOSTON.

[3]

NOTE.

This volume, it is presumed by the author, gives what will generally be considered satisfactory evidence,—though not all the evidence,—of what the Common Law trial by jury really is. In a future volume, if it should be called for, it is designed to corroborate the grounds taken in this; give a concise view of the English constitution; show the unconstitutional character of the existing government in England, and the unconstitutional means by which the trial by jury has been broken down in practice; prove that, neither in England nor the United States, have legislatures ever been invested by the people with any authority to impair the powers, change the oaths, or (with few exceptions) abridge the jurisdiction, of juries, or select jurors on any other than Common Law principles; and, consequently, that, in both countries, legislation is still constitutionally subordinate to the discretion and consciences of Common Law juries, in all cases, both civil and criminal, in which juries sit. The same volume will probably also discuss several political and legal questions, which will naturally assume importance if the trial by jury should be reëstablished.

[4]

CONTENTS.

- CHAPTER I. THE RIGHT OF JURIES TO JUDGE OF THE JUSTICE OF LAWS, . . . . . . . . page 5

- Section 1, . . . . . . . . . . . 5

- Section 2, . . . . . . . . . . . 11

- CHAPTER II. THE TRIAL BY JURY, AS DEFINED BY MAGNA CARTA, . . . . . . . . . . 20

- Section 1. The History of Magna Carta, . . . 20

- Section 2. The Language of Magna Carta, . . 25

- CHAPTER III. ADDITIONAL PROOFS OF THE RIGHTS AND DUTIES OF JURORS, . . . . . . . 51

- Section 1. Weakness of the Regal Authority, . . 51

- Section 2. The Ancient Common Law Juries were mere Courts of Conscience, . . . . . 68

- Section 3. The Oaths of Jurors, . . . . . 85

- Section 4. The Right of Jurors to fix the Sentence, . 91

- Section 5. The Oaths of Judges, . . . . . 98

- Section 6. The Coronation Oath, . . . . . 102

- CHAPTER IV. THE RIGHTS AND DUTIES OF JURIES IN CIVIL SUITS, . . . . . . . . . . 110

- CHAPTER V. OBJECTIONS ANSWERED, . . . . . . 123

- CHAPTER VI. JURIES OF THE PRESENT DAY ILLEGAL, . 142

- CHAPTER VII. ILLEGAL JUDGES, . . . . . . . . 157

- CHAPTER VIII. THE FREE ADMINISTRATION OF JUSTICE, . 172

- CHAPTER IX. THE CRIMINAL INTENT, . . . . . . . 178

- CHAPTER X. MORAL CONSIDERATIONS FOR JURORS, . . 189

- CHAPTER XI. AUTHORITY OF MAGNA CARTA, . . . . 192

- CHAPTER XII. LIMITATIONS IMPOSED UPON THE MAJORITY BY THE TRIAL BY JURY, . . . . . 206

- APPENDIX—Taxation, . . . . . . . . . . . 222

[5]

TRIAL BY JURY.

CHAPTER I.: THE RIGHT OF JURIES TO JUDGE OF THE JUSTICE OF LAWS.

SECTION I.

For more than six hundred years—that is, since Magna Carta, in 1215—there has been no clearer principle of English or American constitutional law, than that, in criminal cases, it is not only the right and duty of juries to judge what are the facts, what is the law, and what was the moral intent of the accused; but that it is also their right, and their primary and paramount duty, to judge of the justice of the law, and to hold all laws invalid, that are, in their opinion, unjust or oppressive, and all persons guiltless in violating, or resisting the execution of, such laws.

Unless such be the right and duty of jurors, it is plain that, instead of juries being a “palladium of liberty”—a barrier against the tyranny and oppression of the government—they are really mere tools in its hands, for carrying into execution any injustice and oppression it may desire to have executed.

But for their right to judge of the law, and the justice of the law, juries would be no protection to an accused person, even as to matters of fact; for, if the government can dictate to a jury any law whatever, in a criminal case, it can certainly dictate to them the laws of evidence. That is, it can dictate what evidence is admissible, and what inadmissible, and also what force or weight is to be given to the evidence admitted. And if the government can thus dictate to a jury the laws of evidence, it can not only make it necessary for them to convict on a partial exhibition of the evidence rightfully pertaining to the case, but it can even require them [6] to convict on any evidence whatever that it pleases to offer them.

That the rights and duties of jurors must necessarily be such as are here claimed for them, will be evident when it is considered what the trial by jury is, and what is its object.

“The trial by jury,” then, is a “trial by the country”—that is, by the people—as distinguished from a trial by the government.

It was anciently called “trial per pais”—that is “trial by the country.” And now, in every criminal trial, the jury are told that the accused “has, for trial, put himself upon the country; which country you (the jury) are.”

The object of this trial “by the country,” or by the people, in preference to a trial by the government, is to guard against every species of oppression by the government. In order to effect this end, it is indispensable that the people, or “the country,” judge of and determine their own liberties against the government; instead of the government’s judging of and determining its own powers over the people. How is it possible that juries can do anything to protect the liberties of the people against the government, if they are not allowed to determine what those liberties are?

Any government, that is its own judge of, and determines authoritatively for the people, what are its own powers over the people, is an absolute government of course. It has all the powers that it chooses to exercise. There is no other—or at least no more accurate—definition of a despotism than this.

On the other hand, any people, that judge of, and determine authoritatively for the government, what are their own liberties against the government, of course retain all the liberties they wish to enjoy. And this is freedom. At least, it is freedom to them; because, although it may be theoretically imperfect, it, nevertheless, corresponds to their highest notions of freedom.

To secure this right of the people to judge of their own liberties against the government, the jurors are taken, (or must be, to make them lawful jurors,) from the body of the people, by lot, or by some process that precludes any previous knowledge, choice, or selection of them, on the part of the government. [7] This is done to prevent the government’s constituting a jury of its own partisans or friends; in other words, to prevent the government’s packing a jury, with a view to maintain its own laws, and accomplish its own purposes.

It is supposed that, if twelve men be taken, by lot, from the mass of the people, without the possibility of any previous knowledge, choice, or selection of them, on the part of the government, the jury will be a fair epitome of “the country” at large, and not merely of the party or faction that sustain the measures of the government; that substantially all classes of opinions, prevailing among the people, will be represented in the jury; and especially that the opponents of the government, (if the government have any opponents,) will be represented there, as well as its friends; that the classes, who are oppressed by the laws of the government, (if any are thus oppressed,) will have their representatives in the jury, as well as those classes, who take sides with the oppressor—that is, with the government.

It is fairly presumable that such a tribunal will agree to no conviction except such as substantially the whole country would agree to, if they were present, taking part in the trial. A trial by such a tribunal is, therefore, in effect, “a trial by the country.” In its results it probably comes as near to a trial by the whole country, as any trial that it is practicable to have, without too great inconvenience and expense. And as unanimity is required for a conviction, it follows that no one can be convicted, except for the violation of such laws as substantially the whole country wish to have maintained. The government can enforce none of its laws, (by punishing offenders, through the verdicts of juries,) except such as substantially the whole people wish to have enforced. The government, therefore, consistently with the trial by jury, can exercise no powers over the people, (or, what is the same thing, over the accused person, who represents the rights of the people,) except such as substantially the whole people of the country consent that it may exercise. In such a trial, therefore, “the country,” or the people, judge of and determine their own liberties against the government, instead of the [8] government’s judging of and determining its own powers over the people.

But all this “trial by the country” would be no trial at all “by the country,” but only a trial by the government, if the government could either declare who may, and who may not, be jurors, or could dictate to the jury anything whatever, either of law or evidence, that is of the essence of the trial.

If the government may decide who may, and who may not, be jurors, it will of course select only its partisans, and those friendly to its measures. It may not only prescribe who may, and who may not, be eligible to be drawn as jurors; but it may also question each person drawn as a juror, as to his sentiments in regard to the particular law involved in each trial, before suffering him to be sworn on the panel; and exclude him if he be found unfavorable to the maintenance of such a law.*

So, also, if the government may dictate to the jury what laws they are to enforce, it is no longer a “trial by the country,” [9] but a trial by the government; because the jury then try the accused, not by any standard of their own—not by their own judgments of their rightful liberties—but by a standard dictated to them by the government. And the standard, thus dictated by the government, becomes the measure of the people’s liberties. If the government dictate the standard of trial, it of course dictates the results of the trial. And such a trial is no trial by the country, but only a trial by the government; and in it the government determines what are its own powers over the people, instead of the people’s determining what are their own liberties against the government. In short, if the jury have no right to judge of the justice of a law of the government, they plainly can do nothing to protect the people against the oppressions of the government; for there are no oppressions which the government may not authorize by law.

The jury are also to judge whether the laws are rightly expounded to them by the court. Unless they judge on this point, they do nothing to protect their liberties against the oppressions that are capable of being practised under cover of a corrupt exposition of the laws. If the judiciary can authoritatively dictate to a jury any exposition of the law, they can dictate to them the law itself, and such laws as they please; because laws are, in practice, one thing or another, according as they are expounded.

[10]

The jury must also judge whether there really be any such law, (be it good or bad,) as the accused is charged with having transgressed. Unless they judge on this point, the people are liable to have their liberties taken from them by brute force, without any law at all.

The jury must also judge of the laws of evidence. If the government can dictate to a jury the laws of evidence, it can not only shut out any evidence it pleases, tending to vindicate the accused, but it can require that any evidence whatever, that it pleases to offer, be held as conclusive proof of any offence whatever which the government chooses to allege.

It is manifest, therefore, that the jury must judge of and try the whole case, and every part and parcel of the case, free of any dictation or authority on the part of the government. They must judge of the existence of the law; of the true exposition of the law; of the justice of the law; and of the admissibility and weight of all the evidence offered; otherwise the government will have everything its own way; the jury will be mere puppets in the hands of the government; and the trial will be, in reality, a trial by the government, and not a “trial by the country.” By such trials the government will determine its own powers over the people, instead of the people’s determining their own liberties against the government; and it will be an entire delusion to talk, as for centuries we have done, of the trial by jury, as a “palladium of liberty,” or as any protection to the people against the oppression and tyranny of the government.

The question, then, between trial by jury, as thus described, and trial by the government, is simply a question between liberty and despotism. The authority to judge what are the powers of the government, and what the liberties of the people, must necessarily be vested in one or the other of the parties themselves—the government, or the people; because there is no third party to whom it can be entrusted. If the authority be vested in the government, the government is absolute, and the people have no liberties except such as the government sees fit to indulge them with. If, on the other hand, that authority be vested in the people, then the people have all liberties, (as against the government,) except such as substantially [11] the whole people (through a jury) choose to disclaim; and the government can exercise no power except such as substantially the whole people (through a jury) consent that it may exercise.

SECTION II.

The force and justice of the preceding argument cannot be evaded by saying that the government is chosen by the people; that, in theory, it represents the people; that it is designed to do the will of the people; that its members are all sworn to observe the fundamental or constitutional law instituted by the people; that its acts are therefore entitled to be considered the acts of the people; and that to allow a jury, representing the people, to invalidate the acts of the government, would therefore be arraying the people against themselves.

There are two answers to such an argument.

One answer is, that, in a representative government, there is no absurdity or contradiction, nor any arraying of the people against themselves, in requiring that the statutes or enactments of the government shall pass the ordeal of any number of separate tribunals, before it shall be determined that they are to have the force of laws. Our American constitutions have provided five of these separate tribunals, to wit, representatives, senate, executive,* jury, and judges; and have made it necessary that each enactment shall pass the ordeal of all these separate tribunals, before its authority can be established by the punishment of those who choose to transgress it. And there is no more absurdity or inconsistency in making a jury one of these several tribunals, than there is in making the representatives, or the senate, or the executive, or the judges, one of them. There is no more absurdity in giving a jury a veto upon the laws, than there is in giving a veto to each of these other tribunals. The people are no more arrayed against themselves, when a jury puts its veto upon a statute, which the other tribunals have sanctioned, than they are when the [12] same veto is exercised by the representatives, the senate, the executive, or the judges.

But another answer to the argument that the people are arrayed against themselves, when a jury hold an enactment of the government invalid, is, that the government, and all the departments of the government, are merely the servants and agents of the people; not invested with arbitrary or absolute authority to bind the people, but required to submit all their enactments to the judgment of a tribunal more fairly representing the whole people, before they carry them into execution, by punishing any individual for transgressing them. If the government were not thus required to submit their enactments to the judgment of “the country,” before executing them upon individuals—if, in other words, the people had reserved to themselves no veto upon the acts of the government, the government, instead of being a mere servant and agent of the people, would be an absolute despot over the people. It would have all power in its own hands; because the power to punish carries all other powers with it. A power that can, of itself, and by its own authority, punish disobedience, can compel obedience and submission, and is above all responsibility for the character of its laws. In short, it is a despotism.

And it is of no consequence to inquire how a government came by this power to punish, whether by prescription, by inheritance, by usurpation, or by delegation from the people? If it have now but got it, the government is absolute.

It is plain, therefore, that if the people have invested the government with power to make laws that absolutely bind the people, and to punish the people for transgressing those laws, the people have surrendered their liberties unreservedly into the hands of the government.

It is of no avail to say, in answer to this view of the case, that in surrendering their liberties into the hands of the government, the people took an oath from the government, that it would exercise its power within certain constitutional limits; for when did oaths ever restrain a government that was otherwise unrestrained? Or when did a government fail to determine that all its acts were within the constitutional and authorized [13] limits of its power, if it were permitted to determine that question for itself?

Neither is it of any avail to say, that, if the government abuse its power, and enact unjust and oppressive laws, the government may be changed by the influence of discussion, and the exercise of the right of suffrage. Discussion can do nothing to prevent the enactment, or procure the repeal, of unjust laws, unless it be understood that the discussion is to be followed by resistance. Tyrants care nothing for discussions that are to end only in discussion. Discussions, which do not interfere with the enforcement of their laws, are but idle wind to them. Suffrage is equally powerless and unreliable. It can be exercised only periodically; and the tyranny must at least be borne until the time for suffrage comes. Besides, when the suffrage is exercised, it gives no guaranty for the repeal of existing laws that are oppressive, and no security against the enactment of new ones that are equally so. The second body of legislators are liable and likely to be just as tyrannical as the first. If it be said that the second body may be chosen for their integrity, the answer is, that the first were chosen for that very reason, and yet proved tyrants. The second will be exposed to the same temptations as the first, and will be just as likely to prove tyrannical. Who ever heard that succeeding legislatures were, on the whole, more honest than those that preceded them? What is there in the nature of men or things to make them so? If it be said that the first body were chosen from motives of injustice, that fact proves that there is a portion of society who desire to establish injustice; and if they were powerful or artful enough to procure the election of their instruments to compose the first legislature, they will be likely to be powerful or artful enough to procure the election of the same or similar instruments to compose the second. The right of suffrage, therefore, and even a change of legislators, guarantees no change of legislation—certainly no change for the better. Even if a change for the better actually comes, it comes too late, because it comes only after more or less injustice has been irreparably done.

But, at best, the right of suffrage can be exercised only periodically; and between the periods the legislators are wholly [14] irresponsible. No despot was ever more entirely irresponsible than are republican legislators during the period for which they are chosen. They can neither be removed from their office, nor called to account while in their office, nor punished after they leave their office, be their tyranny what it may. Moreover, the judicial and executive departments of the government are equally irresponsible to the people, and are only responsible, (by impeachment, and dependence for their salaries), to these irresponsible legislators. This dependence of the judiciary and executive upon the legislature is a guaranty that they will always sanction and execute its laws, whether just or unjust. Thus the legislators hold the whole power of the government in their hands, and are at the same time utterly irresponsible for the manner in which they use it.

If, now, this government, (the three branches thus really united in one), can determine the validity of, and enforce, its own laws, it is, for the time being, entirely absolute, and wholly irresponsible to the people.

But this is not all. These legislators, and this government, so irresponsible while in power, can perpetuate their power at pleasure, if they can determine what legislation is authoritative upon the people, and can enforce obedience to it; for they can not only declare their power perpetual, but they can enforce submission to all legislation that is necessary to secure its perpetuity. They can, for example, prohibit all discussion of the rightfulness of their authority; forbid the use of the suffrage; prevent the election of any successors; disarm, plunder, imprison, and even kill all who refuse submission. If, therefore, the government (all departments united) be absolute for a day—that is, if it can, for a day, enforce obedience to its own laws—it can, in that day, secure its power for all time—like the queen, who wished to reign but for a day, but in that day caused the king, her husband, to be slain, and usurped his throne.

Nor will it avail to say that such acts would be unconstitutional, and that unconstitutional acts may be lawfully resisted; for everything a government pleases to do will, of course, be determined to be constitutional, if the government itself be permitted to determine the question of the constitutionality of its own acts. Those who are capable of tyranny, are capable of perjury to sustain it.

[15]

The conclusion, therefore, is, that any government, that can, for a day, enforce its own laws, without appealing to the people, (or to a tribunal fairly representing the people,) for their consent, is, in theory, an absolute government, irresponsible to the people, and can perpetuate its power at pleasure.

The trial by jury is based upon a recognition of this principle, and therefore forbids the government to execute any of its laws, by punishing violators, in any case whatever, without first getting the consent of “the country,” or the people, through a jury. In this way, the people, at all times, hold their liberties in their own hands, and never surrender them, even for a moment, into the hands of the government.

The trial by jury, then, gives to any and every individual the liberty, at any time, to disregard or resist any law whatever of the government, if he be willing to submit to the decision of a jury, the questions, whether the law be intrinsically just and obligatory? and whether his conduct, in disregarding or resisting it, were right in itself? And any law, which does not, in such trial, obtain the unanimous sanction of twelve men, taken at random from the people, and judging according to the standard of justice in their own minds, free from all dictation and authority of the government, may be transgressed and resisted with impunity, by whomsoever pleases to transgress or resist it.*

The trial by jury authorizes all this, or it is a sham and a hoax, utterly worthless for protecting the people against oppression. If it do not authorize an individual to resist the first and least act of injustice or tyranny, on the part of the government, it does not authorize him to resist the last and the greatest. If it do not authorize individuals to nip tyranny in the bud, it does not authorize them to cut it down when its branches are filled with the ripe fruits of plunder and oppression.

Those who deny the right of a jury to protect an individual in resisting an unjust law of the government, deny him all [16] legal defence whatsoever against oppression. The right of revolution, which tyrants, in mockery, accord to mankind, is no legal right under a government; it is only a natural right to overturn a government. The government itself never acknowledges this right. And the right is practically established only when and because the government no longer exists to call it in question. The right, therefore, can be exercised with impunity, only when it is exercised victoriously. All unsuccessful attempts at revolution, however justifiable in themselves, are punished as treason, if the government be permitted to judge of the treason. The government itself never admits the injustice of its laws, as a legal defence for those who have attempted a revolution, and failed. The right of revolution, therefore, is a right of no practical value, except for those who are stronger than the government. So long, therefore, as the oppressions of a government are kept within such limits as simply not to exasperate against it a power greater than its own, the right of revolution cannot be appealed to, and is therefore inapplicable to the case. This affords a wide field for tyranny; and if a jury cannot here intervene, the oppressed are utterly defenceless.

It is manifest that the only security against the tyranny of the government lies in forcible resistance to the execution of the injustice; because the injustice will certainly be executed, unless it be forcibly resisted. And if it be but suffered to be executed, it must then be borne; for the government never makes compensation for its own wrongs.

Since, then, this forcible resistance to the injustice of the government is the only possible means of preserving liberty, it is indispensable to all legal liberty that this resistance should be legalized. It is perfectly self-evident that where there is no legal right to resist the oppression of the government, there can be no legal liberty. And here it is all-important to notice, that, practically speaking, there can be no legal right to resist the oppressions of the government, unless there be some legal tribunal, other than the government, and wholly independent of, and above, the government, to judge between the government and those who resist its oppressions; in other words, to judge what laws of the government are to be [17] obeyed, and what may be resisted and held for nought. The only tribunal known to our laws, for this purpose, is a jury. If a jury have not the right to judge between the government and those who disobey its laws, and resist its oppressions, the government is absolute, and the people, legally speaking, are slaves. Like many other slaves they may have sufficient courage and strength to keep their masters somewhat in check; but they are nevertheless known to the law only as slaves.

That this right of resistance was recognized as a common law right, when the ancient and genuine trial by jury was in force, is not only proved by the nature of the trial itself, but is acknowledged by history.*

This right of resistance is recognized by the constitution of the United States, as a strictly legal and constitutional right. It is so recognized, first by the provision that “the trial of all crimes, except in cases of impeachment, shall be by jury”—that is, by the country—and not by the government; secondly, by the provision that “the right of the people to keep and bear arms shall not be infringed.” This constitutional security for “the right to keep and bear arms,” implies the right to use them—as much as a constitutional security for the right to buy and keep food would have implied the right to eat it. The constitution, therefore, takes it for granted that [18] the people will judge of the conduct of the government, and that, as they have the right, they will also have the sense, to use arms, whenever the necessity of the case justifies it. And it is a sufficient and legal defence for a person accused of using arms against the government, if he can show, to the satisfaction of a jury, or even any one of a jury, that the law he resisted was an unjust one.

In the American State constitutions also, this right of resistance to the oppressions of the government is recognized, in various ways, as a natural, legal, and constitutional right. In the first place, it is so recognized by provisions establishing the trial by jury; thus requiring that accused persons shall be tried by “the country,” instead of the government. In the second place, it is recognized by many of them, as, for example, those of Massachusetts, Maine, Vermont, Connecticut, Pennsylvania, Ohio, Indiana, Michigan, Kentucky, Tennessee, Arkansas, Mississippi, Alabama, and Florida, by provisions expressly declaring that the people shall have the right to bear arms. In many of them also, as, for example, those of Maine, New Hampshire, Vermont, Massachusetts, New Jersey, Pennsylvania, Delaware, Ohio, Indiana, Illinois, Florida, Iowa, and Arkansas, by provisions, in their bills of rights, declaring that men have a natural, inherent, and inalienable right of “defending their lives and liberties.” This, of course, means that they have a right to defend them against any injustice on the part of the government, and not merely on the part of private individuals; because the object of all bills of rights is to assert the rights of individuals and the people, as against the government, and not as against private persons. It would be a matter of ridiculous supererogation to assert, in a constitution of government, the natural right of men to defend their lives and liberties against private trespassers.

Many of these bills of rights also assert the natural right of all men to protect their property—that is, to protect it against the government. It would be unnecessary and silly indeed to assert, in a constitution of government, the natural right of individuals to protect their property against thieves and robbers.

[19]

The constitutions of New Hampshire and Tennessee also declare that “The doctrine of non-resistance against arbitrary power and oppression is absurd, slavish, and destructive of the good and happiness of mankind.”

The legal effect of these constitutional recognitions of the right of individuals to defend their property, liberties, and lives, against the government, is to legalize resistance to all injustice and oppression, of every name and nature whatsoever, on the part of the government.

But for this right of resistance, on the part of the people, all governments would become tyrannical to a degree of which few people are aware. Constitutions are utterly worthless to restrain the tyranny of governments, unless it be understood that the people will, by force, compel the government to keep within the constitutional limits. Practically speaking, no government knows any limits to its power, except the endurance of the people. But that the people are stronger than the government, and will resist in extreme cases, our governments would be little or nothing else than organized systems of plunder and oppression. All, or nearly all, the advantage there is in fixing any constitutional limits to the power of a government, is simply to give notice to the government of the point at which it will meet with resistance. If the people are then as good as their word, they may keep the government within the bounds they have set for it; otherwise it will disregard them—as is proved by the example of all our American governments, in which the constitutions have all become obsolete, at the moment of their adoption, for nearly or quite all purposes except the appointment of officers, who at once become practically absolute, except so far as they are restrained by the fear of popular resistance.

The bounds set to the power of the government, by the trial by jury, as will hereafter be shown, are these—that the government shall never touch the property, person, or natural or civil rights of an individual, against his consent, (except for the purpose of bringing them before a jury for trial,) unless in pursuance and execution of a judgment, or decree, rendered by a jury in each individual case, upon such evidence, and such law, as are satisfactory to their own understandings and consciences, irrespective of all legislation of the government.

[20]

CHAPTER II.: THE TRIAL BY JURY, AS DEFINED BY MAGNA CARTA.

That the trial by jury is all that has been claimed for it in the preceding chapter, is proved both by the history and the language of the Great Charter of English Liberties, to which we are to look for a true definition of the trial by jury, and of which the guaranty for that trial is the vital, and most memorable, part.

SECTION I.: The History of Magna Carta.

In order to judge of the object and meaning of that chapter of Magna Carta which secures the trial by jury, it is to be borne in mind that, at the time of Magna Carta, the king (with exceptions immaterial to this discussion, but which will appear hereafter) was, constitutionally, the entire government; the sole legislative, judicial, and executive power of the nation. The executive and judicial officers were merely his servants, appointed by him, and removable at his pleasure. In addition to this, “the king himself often sat in his court, which always attended his person. He there heard causes, and pronounced judgment; and though he was assisted by the advice of other members, it is not to be imagined that a decision could be obtained contrary to his inclination or opinion.”* Judges were in those days, and afterwards, such abject servants of the king, that “we find that King Edward I. (1272 to 1307) fined and imprisoned his judges, in the same manner as Alfred the Great, among the Saxons, had done before him, by the sole exercise of his authority.”†

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Parliament, so far as there was a parliament, was a mere council of the king.* It assembled only at the pleasure of the king; sat only during his pleasure; and when sitting had no power, so far as general legislation was concerned, beyond that of simply advising the king. The only legislation to which their assent was constitutionally necessary, was demands for money and military services for extraordinary occasions. Even Magna Carta itself makes no provisions whatever for any parliaments, except when the king should want means to carry on war, or to meet some other extraordinary necessity.† He had no need of parliaments to raise taxes for the ordinary purposes of government; for his revenues from the rents of the crown lands and other sources, were ample for all except extraordinary occasions. Parliaments, too, when assembled, consisted only of bishops, barons, and other great men of the kingdom, unless the king chose to invite others.‡ There was no House of Commons at that time, and the people had no right to be heard, unless as petitioners.§

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Even when laws were made at the time of a parliament, they were made in the name of the king alone. Sometimes it was inserted in the laws, that they were made with the consent or advice of the bishops, barons, and others assembled; but often this was omitted. Their consent or advice was evidently a matter of no legal importance to the enactment or validity of the laws, but only inserted, when inserted at all, with a view of obtaining a more willing submission to them on the part of the people. The style of enactment generally was, either “The King wills and commands,” or some other form significant of the sole legislative authority of the king. The king could pass laws at any time when it pleased him. The presence of a parliament was wholly unnecessary. Hume says, “It is asserted by Sir Harry Spelman, as an undoubted fact, that, during the reigns of the Norman princes, every order of the king, issued with the consent of his privy council, had the full force of law.”* And other authorities abundantly corroborate this assertion.†

The king was, therefore, constitutionally the government; and the only legal limitation upon his power seems to have been simply the Common Law, usually called “the law of the land,” which he was bound by oath to maintain; (which oath had about the same practical value as similar oaths have always had.) This “law of the land” seems not to have been regarded at all by many of the kings, except so far as they found it convenient to do so, or were constrained to observe it by the fear of arousing resistance. But as all people are slow in making resistance, oppression and usurpation often reached a great height; and, in the case of John, they had become so intolerable as to enlist the nation almost universally against him; and he was reduced to the necessity of complying with any terms the barons saw fit to dictate to him.

It was under these circumstances, that the Great Charter of [23] English Liberties was granted. The barons of England, sustained by the common people, having their king in their power, compelled him, as the price of his throne, to pledge himself that he would punish no freeman for a violation of any of his laws, unless with the consent of the peers—that is, the equals—of the accused.

The question here arises, Whether the barons and people intended that those peers (the jury) should be mere puppets in the hands of the king, exercising no opinion of their own as to the intrinsic merits of the accusations they should try, or the justice of the laws they should be called on to enforce? Whether those haughty and victorious barons, when they had their tyrant king at their feet, gave back to him his throne, with full power to enact any tyrannical laws he might please, reserving only to a jury (“the country”) the contemptible and servile privilege of ascertaining, (under the dictation of the king, or his judges, as to the laws of evidence), the simple fact whether those laws had been transgressed? Was this the only restraint, which, when they had all power in their hands, they placed upon the tyranny of a king, whose oppressions they had risen in arms to resist? Was it to obtain such a charter as that, that the whole nation had united, as it were, like one man, against their king? Was it on such a charter that they intended to rely, for all future time, for the security of their liberties? No. They were engaged in no such senseless work as that. On the contrary, when they required him to renounce forever the power to punish any freeman, unless by the consent of his peers, they intended those peers should judge of, and try, the whole case on its merits, independently of all arbitrary legislation, or judicial authority, on the part of the king. In this way they took the liberties of each individual—and thus the liberties of the whole people—entirely out of the hands of the king, and out of the power of his laws, and placed them in the keeping of the people themselves. And this it was that made the trial by jury the palladium of their liberties.

The trial by jury, be it observed, was the only real barrier interposed by them against absolute despotism. Could this trial, then, have been such an entire farce as it necessarily [24] must have been, if the jury had had no power to judge of the justice of the laws the people were required to obey? Did it not rather imply that the jury were to judge independently and fearlessly as to everything involved in the charge, and especially as to its intrinsic justice, and thereon give their decision, (unbiased by any legislation of the king,) whether the accused might be punished? The reason of the thing, no less than the historical celebrity of the events, as securing the liberties of the people, and the veneration with which the trial by jury has continued to be regarded, notwithstanding its essence and vitality have been almost entirely extracted from it in practice, would settle the question, if other evidences had left the matter in doubt.

Besides, if his laws were to be authoritative with the jury, why should John indignantly refuse, as at first he did, to grant the charter, (and finally grant it only when brought to the last extremity,) on the ground that it deprived him of all power, and left him only the name of a king? He evidently understood that the juries were to veto his laws, and paralyze his power, at discretion, by forming their own opinions as to the true character of the offences they were to try, and the laws they were to be called on to enforce; and that “the king wills and commands” was to have no weight with them contrary to their own judgments of what was intrinsically right.*

The barons and people having obtained by the charter all the liberties they had demanded of the king, it was further [25] provided by the charter itself that twenty-five barons should be appointed by the barons, out of their number, to keep special vigilance in the kingdom to see that the charter was observed, with authority to make war upon the king in case of its violation. The king also, by the charter, so far absolved all the people of the kingdom from their allegiance to him, as to authorize and require them to swear to obey the twenty-five barons, in case they should make war upon the king for infringement of the charter. It was then thought by the barons and people, that something substantial had been done for the security of their liberties.

This charter, in its most essential features, and without any abatement as to the trial by jury, has since been confirmed more than thirty times; and the people of England have always had a traditionary idea that it was of some value as a guaranty against oppression. Yet that idea has been an entire delusion, unless the jury have had the right to judge of the justice of the laws they were called on to enforce.

SECTION II.: The Language of Magna Carta.

The language of the Great Charter establishes the same point that is established by its history, viz., that it is the right and duty of the jury to judge of the justice of the laws.

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The chapter guaranteeing the trial by jury is in these words:

“Nullus liber homo capiatur, vel imprisonetur, aut disseisetur, aut utlagetur, aut exuletur, aut aliquo modo destruatur; nec super eum ibimus, nec super eum mittemus, nisi per legale judicium parium suorum, vel per legem terræ.”*

The corresponding chapter in the Great Charter, granted by Henry III., (1225,) and confirmed by Edward I., (1297,) (which charter is now considered the basis of the English laws and constitution,) is in nearly the same words, as follows:

“Nullus liber homo capiatur, vel imprisonetur, aut disseisetur de libero tenemento, vel libertatibus, vel liberis consuetudinibus suis, aut utlagetur, aut exuletur, aut aliquo modo destruatur, nec super eum ibimus, nec super eum mittemus, nisi per legale judicium parium suorum, vel per legem terræ.”

The most common translation of these words, at the present day, is as follows:

“No freeman shall be arrested, or imprisoned, or deprived of his freehold, or his liberties, or free customs, or outlawed, or exiled, or in any manner destroyed, nor will we (the king) pass upon him, nor condemn him, unless by the judgment of his peers, or the law of the land.”

“Nec super eum ibimus, nec super eum mittemus.”

There has been much confusion and doubt as to the true meaning of the words, “nec super eum ibimus, nec super eum mittemus.” The more common rendering has been, “nor will we pass upon him, nor condemn him.” But some have translated them to mean, “nor will we pass upon him, nor commit him to prison.” Coke gives still a different rendering, to the effect that “No man shall be condemned at the king’s suit, either before the king in his bench, nor before any other commissioner or judge whatsoever.”†

But all these translations are clearly erroneous. In the first [27] place, “nor will we pass upon him,”—meaning thereby to decide upon his guilt or innocence judicially—is not a correct rendering of the words, “nec super eum ibimus.” There is nothing whatever, in these latter words, that indicates judicial action or opinion at all. The words, in their common signification, describe physical action alone. And the true translation of them, as will hereafter be seen, is, “nor will we proceed against him,” executively.

In the second place, the rendering, “nor will we condemn him,” bears little or no analogy to any common, or even uncommon, signification of the words “nec super eum mittemus.” There is nothing in these latter words that indicates judicial action or decision. Their common signification, like that of the words nec super eum ibimus, describes physical action alone. “Nor will we send upon (or against) him,” would be the most obvious translation, and, as we shall hereafter see, such is the true translation.

But although these words describe physical action, on the part of the king, as distinguished from judicial, they nevertheless do not mean, as one of the translations has it, “nor will we commit him to prison;” for that would be a mere repetition of what had been already declared by the words “nec imprisonetur.” Besides, there is nothing about prisons in the words “nec super eum mittemus;” nothing about sending him anywhere; but only about sending (something or somebody) upon him, or against him—that is, executively.

Coke’s rendering is, if possible, the most absurd and gratuitous of all. What is there in the words, “nec super eum mittemus,” that can be made to mean “nor shall he be condemned before any other commissioner or judge whatsoever?” Clearly there is nothing. The whole rendering is a sheer fabrication. And the whole object of it is to give color for the exercise of a judicial power, by the king, or his judges, which is nowhere given them.

Neither the words, “nec super eum ibimus, nec super eum mittemus,” nor any other words in the whole chapter, authorize, provide for, describe, or suggest, any judicial action whatever, on the part either of the king, or of his judges, or of anybody, except the peers, or jury. There is nothing about [28] the king’s judges at all. And there is nothing whatever, in the whole chapter, so far as relates to the action of the king, that describes or suggests anything but executive action.*

But that all these translations are certainly erroneous, is proved by a temporary charter, granted by John a short time previous to the Great Charter, for the purpose of giving an opportunity for conference, arbitration, and reconciliation between him and his barons. It was to have force until the matters in controversy between them could be submitted to the Pope, and to other persons to be chosen, some by the king, and some by the barons. The words of the charter are as follows:

“Sciatis nos concessisse baronibus nostris qui contra nos sunt quod nec eos nec homines suos capiemus, nec disseisiemus nec super eos per vim vel per arma ibimus nisi per legem regni nostri vel per judicium parium suorum in curia nostra donec consideratio facta fuerit,” &c., &c.

That is, “Know that we have granted to our barons who are opposed to us, that we will neither arrest them nor their men, nor disseize them, nor will we proceed against them by force or by arms, unless by the law of our kingdom, or by the judgment of their peers in our court, until consideration shall be had,” &c., &c.

A copy of this charter is given in a note in Blackstone’s Introduction to the Charters.†

Mr. Christian speaks of this charter as settling the true meaning of the corresponding clause of Magna Carta, on the principle that laws and charters on the same subject are to be construed with reference to each other. See 3 Christian’s Blackstone, 41, note.

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The true meaning of the words, nec super eum ibimus, nec super eum mittemus, is also proved by the “Articles of the Great Charter of Liberties,” demanded of the king by the barons, and agreed to by the king, under seal, a few days before the date of the Charter, and from which the Charter was framed.* Here the words used are these:

“Ne corpus liberi hominis capiatur nec imprisonetur nec disseisetur nec utlagetur nec exuletur nec aliquo modo destruatur nec rex eat vel mittat super eum vi nisi per judicium parium suorum vel per legem terræ.”

That is, “The body of a freeman shall not be arrested, nor imprisoned, nor disseized, nor outlawed, nor exiled, nor in any manner destroyed, nor shall the king proceed or send (any one) against him with force, unless by the judgment of his peers, or the law of the land.”

The true translation of the words nec super eum ibimus, nec super eum mittemus, in Magna Carta, is thus made certain, as follows, “nor will we (the king) proceed against him, nor send (any one) against him with force or arms.”†

It is evident that the difference between the true and false translations of the words, nec super eum ibimus, nec super eum mittemus, is of the highest legal importance, inasmuch as the true translation, nor will we (the king) proceed against him, nor send (any one) against him by force or arms, represents the king only in an executive character, carrying the judgment of the peers and “the law of the land” into execution; whereas the false translation, nor will we pass upon him, nor condemn him, gives color for the exercise of a judicial power, on the [30] part of the king, to which the king had no right, but which, according to the true translation, belongs wholly to the jury.

“Per legale judicium parium suorum.”

The foregoing interpretation is corroborated, (if it were not already too plain to be susceptible of corroboration,) by the true interpretation of the phrase “per legale judicium parium suorum.”

In giving this interpretation, I leave out, for the present, the word legale, which will be defined afterwards.

The true meaning of the phrase, per judicium parium suorum, is, according to the sentence of his peers. The word judicium, judgment, has a technical meaning in the law, signifying the decree rendered in the decision of a cause. In civil suits this decision is called a judgment; in chancery proceedings it is called a decree; in criminal actions it is called a sentence, or judgment, indifferently. Thus, in a criminal suit, “a motion in arrest of judgment,” means a motion in arrest of sentence.*

In cases of sentence, therefore, in criminal suits, the words sentence and judgment are synonymous terms. They are, to this day, commonly used in law books as synonymous terms. And the phrase per judicium parium suorum, therefore, implies that the jury are to fix the sentence.

The word per means according to. Otherwise there is no sense in the phrase per judicium parium suorum. There [31] would be no sense in saying that a king might imprison, disseize, outlaw, exile, or otherwise punish a man, or proceed against him, or send any one against him, by force or arms, by a judgment of his peers; but there is sense in saying that the king may imprison, disseize, and punish a man, or proceed against him, or send any one against him, by force or arms, according to a judgment, or sentence, of his peers; because in that case the king would be merely carrying the sentence or judgment of the peers into execution.

The word per, in the phrase “per judicium parium suorum,” of course means precisely what it does in the next phrase, “per legem terræ;” where it obviously means according to, and not by, as it is usually translated. There would be no sense in saying that the king might proceed against a man by force or arms, by the law of the land; but there is sense in saying that he may proceed against him, by force or arms, according to the law of the land; because the king would then be acting only as an executive officer, carrying the law of the land into execution. Indeed, the true meaning of the word by, as used in similar cases now, always is according to; as, for example, when we say a thing was done by the government, or by the executive, by law, we mean only that it was done by them according to law; that is, that they merely executed the law.

Or, if we say that the word by signifies by authority of, the result will still be the same; for nothing can be done by authority of law, except what the law itself authorizes or directs [32] to be done; that is, nothing can be done by authority of law, except simply to carry the law itself into execution. So nothing could be done by authority of the sentence of the peers, or by authority of “the law of the land,” except what the sentence of the peers, or the law of the land, themselves authorized or directed to be done; nothing, in short, but to carry the sentence of the peers, or the law of the land, themselves into execution.

Doing a thing by law, or according to law, is only carrying the law into execution. And punishing a man by, or according to, the sentence or judgment of his peers, is only carrying that sentence or judgment into execution.

If these reasons could leave any doubt that the word per is to be translated according to, that doubt would be removed by the terms of an antecedent guaranty for the trial by jury, granted by the Emperor Conrad, of Germany,* two hundred years before Magna Carta. Blackstone cites it as follows:—(3 Blackstone, 350.)

“Nemo beneficium suum perdat, nisi secundum consuetudinem antecessorum nostrorum, et judicium parium suorum.” That is, No one shall lose his estate,† unless according to (“secundum”) the custom (or law) of our ancestors, and (according to) the sentence (or judgment) of his peers.

The evidence is therefore conclusive that the phrase per judicium parium suorum means according to the sentence of his peers; thus implying that the jury, and not the government, are to fix the sentence.

If any additional proof were wanted that juries were to fix the sentence, it would be found in the following provisions of Magna Carta, viz.:

“A freeman shall not be amerced for a small crime, (delicto,) but according to the degree of the crime; and for a great crime in proportion to the magnitude of it, saving to him his [33] contenement;* and after the same manner a merchant, saving to him his merchandise. And a villein shall be amerced after the same manner, saving to him his waynage,† if he fall under our mercy; and none of the aforesaid amercements shall be imposed, (or assessed, ponatur,) but by the oath of honest men of the neighborhood. Earls and Barons shall not be amerced but by their peers, and according to the degree of their crime.”‡

Pecuniary punishments were the most common punishments at that day, and the foregoing provisions of Magna Carta show that the amount of those punishments was to be fixed by the jury.

Fines went to the king, and were a source of revenue; and if the amounts of the fines had been left to be fixed by the king, he would have had a pecuniary temptation to impose unreasonable and oppressive ones. So, also, in regard to other punishments than fines. If it were left to the king to fix the punishment, he might often have motives to inflict cruel and oppressive ones. As it was the object of the trial by jury to protect the people against all possible oppression from the king, it was necessary that the jury, and not the king, should fix the punishments.§

“Legale.”

The word “legale,” in the phrase “per legale judicium [34] parium suorum,” doubtless means two things. 1. That the sentence must be given in a legal manner; that is, by the legal number of jurors, legally empanelled and sworn to try the cause; and that they give their judgment or sentence after a legal trial, both in form and substance, has been had. 2. That the sentence shall be for a legal cause or offence. If, therefore, a jury should convict and sentence a man, either without giving him a legal trial, or for an act that was not really and legally criminal, the sentence itself would not be legal; and consequently this clause forbids the king to carry such a sentence into execution; for the clause guarantees that he will execute no judgment or sentence, except it be legale judicium, a legal sentence. Whether a sentence be a legal one, would have to be ascertained by the king or his judges, on appeal, or might be judged of informally by the king himself.

The word “legale” clearly did not mean that the judicium parium suorum (judgment of his peers) should be a sentence which any law (of the king) should require the peers to pronounce; for in that case the sentence would not be the sentence of the peers, but only the sentence of the law, (that is, of the king); and the peers would be only a mouthpiece of the law, (that is, of the king,) in uttering it.

“Per legem terræ.”

One other phrase remains to be explained, viz., “per legem terræ,” “by the law of the land.”

All writers agree that this means the common law. Thus, Sir Matthew Hale says:

“The common law is sometimes called, by way of eminence, lex terræ, as in the statute of Magna Carta, chap. 29, where certainly the common law is principally intended by those words, aut per legem terræ; as appears by the exposition thereof in several subsequent statutes; and particularly in the statute of 28 Edward III., chap. 3, which is but an exposition and explanation of that statute. Sometimes it is called lex Angliæ, as in the statute of Merton, cap. 9, “Nolumus leges Angliæ mutari,” &c., (We will that the laws of England be not changed). Sometimes it is called lex et consuetudo regni (the law and custom of the kingdom); as in all commissions of oyer and terminer; and in the statutes of 18 Edward I., cap.—, and de quo warranto, and divers others. But most [35] commonly it is called the Common Law, or the Common Law of England; as in the statute Articuli super Chartas, cap. 15, in the statute 25 Edward III., cap. 5, (4,) and infinite more records and statutes.”

—1 Hale’s History of the Common Law, 128.

This common law, or “law of the land,” the king was sworn to maintain. This fact is recognized by a statute made at Westminster, in 1346, by Edward III., which commences in this manner:

“Edward, by the Grace of God, &c., &c., to the Sheriff of Stafford, Greeting: Because that by divers complaints made to us, we have perceived that the law of the land, which we by oath are bound to maintain,” &c.

—St. 20 Edward III.

The foregoing authorities are cited to show to the unprofessional reader, what is well known to the profession, that legem terræ, the law of the land, mentioned in Magna Carta, was the common, ancient, fundamental law of the land, which the kings were bound by oath to observe; and that it did not include any statutes or laws enacted by the king himself, the legislative power of the nation.

If the term legem terræ had included laws enacted by the king himself, the whole chapter of Magna Carta, now under discussion, would have amounted to nothing as a protection to liberty; because it would have imposed no restraint whatever upon the power of the king. The king could make laws at any time, and such ones as he pleased. He could, therefore, have done anything he pleased, by the law of the land, as well as in any other way, if his own laws had been “the law of the land.” If his own laws had been “the law of the land,” within the meaning of that term as used in Magna Carta, this chapter of Magna Carta would have been sheer nonsense, inasmuch as the whole purport of it would have been simply that “no man shall be arrested, imprisoned, or deprived of his freehold, or his liberties, or free customs, or outlawed, or exiled, or in any manner destroyed (by the king); nor shall the king proceed against him, nor send any one against him with force and arms, unless by the judgment of his peers, or unless the king shall please to do so.”

This chapter of Magna Carta would, therefore, have imposed not the slightest restraint upon the power of the king, or [36] afforded the slightest protection to the liberties of the people, if the laws of the king had been embraced in the term legem terræ. But if legem terræ was the common law, which the king was sworn to maintain, then a real restriction was laid upon his power, and a real guaranty given to the people for their liberties.

Such, then, being the meaning of legem terræ, the fact is established that Magna Carta took an accused person entirely out of the hands of the legislative power, that is, of the king; and placed him in the power and under the protection of his peers, and the common law alone; that, in short, Magna Carta suffered no man to be punished for violating any enactment of the legislative power, unless the peers or equals of the accused freely consented to it, or the common law authorized it; that the legislative power, of itself, was wholly incompetent to require the conviction or punishment of a man for any offence whatever.

Whether Magna Carta allowed of any other trial than by jury.

The question here arises, whether “legem terræ” did not allow of some other mode of trial than that by jury.

The answer is, that, at the time of Magna Carta, it is not probable, (for the reasons given in the note,) that legem terræ authorized, in criminal cases, any other trial than the trial by jury; but, if it did, it certainly authorized none but the trial by battle, the trial by ordeal, and the trial by compurgators. These were the only modes of trial, except by jury, that had been known in England, in criminal cases, for some centuries previous to Magna Carta. All of them had become nearly extinct at the time of Magna Carta, and it is not probable that they were included in “legem terræ,” as that term is used in that instrument. But if they were included in it, they have now been long obsolete, and were such as neither this nor any future age will ever return to.* For all practical purposes of [37] the present day, therefore, it may be asserted that Magna Carta allows no trial whatever but trial by jury.

Whether Magna Carta allowed sentence to be fixed otherwise than by the jury.

Still another question arises on the words legem terræ, viz., whether, in cases where the question of guilt was determined by the jury, the amount of punishment may not have been fixed by legem terræ, the Common Law, instead of its being fixed by the jury.

I think we have no evidence whatever that, at the time of Magna Carta, or indeed at any other time, lex terræ, the common [38] law, fixed the punishment in cases where the question of guilt was tried by a jury; or, indeed, that it did in any other case. Doubtless certain punishments were common and usual for certain offences; but I do not think it can be shown that the common law, the lex terræ, which the king was sworn to maintain, required any one specific punishment, or any precise amount of punishment, for any one specific offence. If such a thing be claimed, it must be shown, for it cannot be presumed. In fact, the contrary must be presumed, because, in the nature of things, the amount of punishment proper to be inflicted in any particular case, is a matter requiring the exercise of discretion at the time, in order to adapt it to the moral quality of the offence, which is different in each case, varying with the mental and moral constitutions of the offenders, and the circumstances of temptation or provocation. And Magna Carta recognizes this principle distinctly, as has before been shown, in providing that freemen, merchants, and villeins, “shall not be amerced for a small crime, but according to the degree of the crime; and for a great crime in proportion to the magnitude of it;” and that “none of the aforesaid amercements shall be imposed (or assessed) but by the oaths of honest men of the neighborhood;” and that “earls and barons shall not be amerced but by their peers, and according to the quality of the offence.”

All this implies that the moral quality of the offence was to be judged of at the trial, and that the punishment was to be fixed by the discretion of the peers, or jury, and not by any such unvarying rule as a common law rule would be.

I think, therefore, it must be conceded that, in all cases, tried by a jury, Magna Carta intended that the punishment should be fixed by the jury, and not by the common law, for these several reasons.

1. It is uncertain whether the common law fixed the punishment of any offence whatever.

2. The words “per judicium parium suorum,” according to the sentence of his peers, imply that the jury fixed the sentence in some cases tried by them; and if they fixed the sentence in some cases, it must be presumed they did in all, unless the contrary be clearly shown.

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3. The express provisions of Magna Carta, before adverted to, that no amercements, or fines, should be imposed upon freemen, merchants, or villeins, “but by the oath of honest men of the neighborhood,” and “according to the degree of the crime,” and that “earls and barons should not be amerced but by their peers, and according to the quality of the offence,” proves that, at least, there was no common law fixing the amount of fines, or, if there were, that it was to be no longer in force. And if there was no common law fixing the amount of fines, or if it was to be no longer in force, it is reasonable to infer, (in the absence of all evidence to the contrary,) either that the common law did not fix the amount of any other punishment, or that it was to be no longer in force for that purpose.*

Under the Saxon laws, fines, payable to the injured party, seem to have been the common punishments for all offences. Even murder was punishable by a fine payable to the relatives of the deceased. The murder of the king even was punishable [40] by fine. When a criminal was unable to pay his fine, his relatives often paid it for him. But if it were not paid, he was put out of the protection of the law, and the injured parties, (or, in the case of murder, the kindred of the deceased,) were allowed to inflict such punishment as they pleased. And if the relatives of the criminal protected him, it was lawful to take vengeance on them also. Afterwards the custom grew up of exacting fines also to the king as a punishment for offences.* And this latter was, doubtless, the usual punishment at the time of Magna Carta, as is evidenced by the fact that for many years immediately following Magna Carta, nearly or quite all statutes that prescribed any punishment at all, prescribed that the offender should “be grievously amerced,” or “pay a great fine to the king,” or a “grievous ransom,”—with the alternative in some cases (perhaps understood in all) of imprisonment, banishment, or outlawry, in case of non-payment.†

[41]

Judging, therefore, from the special provisions in Magna Carta, requiring fines, or amercements, to be imposed only by juries, (without mentioning any other punishments;) judging, also, from the statutes which immediately followed Magna Carta, it is probable that the Saxon custom of punishing all, or nearly all, offences by fines, (with the alternative to the criminal of being imprisoned, banished, or outlawed, and exposed to private vengeance, in case of non-payment,) continued until the time of Magna Carta; and that in providing expressly that fines should be fixed by the juries, Magna Carta provided for nearly or quite all the punishments that were expected to be inflicted; that if there were to be any others, they were to be fixed by the juries; and consequently that nothing was left to be fixed by “legem terrœ.”

But whether the common law fixed the punishment of any offences, or not, is a matter of little or no practical importance at this day; because we have no idea of going back to any common law punishments of six hundred years ago, if, indeed, there were any such at that time. It is enough for us to know—and this is what it is material for us to know—that the jury fixed the punishments, in all cases, unless they were fixed by the common law; that Magna Carta allowed [42] no punishments to be prescribed by statute—that is, by the legislative power—nor in any other manner by the king, or his judges, in any case whatever; and, consequently, that all statutes prescribing particular punishments for particular offences, or giving the king’s judges any authority to fix punishments, were void.

If the power to fix punishments had been left in the hands of the king, it would have given him a power of oppression, which was liable to be greatly abused; which there was no occasion to leave with him; and which would have been incongruous with the whole object of this chapter of Magna Carta; which object was to take all discretionary or arbitrary power over individuals entirely out of the hands of the king, and his laws, and entrust it only to the common law, and the peers, or jury—that is, the people.

What lex terrœ did authorize.

But here the question arises, What then did “legem terrœ” authorize the king, (that is, the government,) to do in the case of an accused person, if it neither authorized any other trial than that by jury, nor any other punishments than those fixed by juries?

The answer is, that, owing to the darkness of history on the point, it is probably wholly impossible, at this day, to state, with any certainty or precision, anything whatever that the legem terrœ of Magna Carta did authorize the king, (that is, the government,) to do, (if, indeed, it authorized him to do anything,) in the case of criminals, other than to have them tried and sentenced by their peers, for common law crimes; and to carry that sentence into execution.

The trial by jury was a part of legem terrœ, and we have the means of knowing what the trial by jury was. The fact that the jury were to fix the sentence, implies that they were to try the accused; otherwise they could not know what sentence, or whether any sentence, ought to be inflicted upon him. Hence it follows that the jury were to judge of everything involved in the trial; that is, they were to judge of the nature of the offence, of the admissibility and weight of testimony, and of everything else whatsoever that was of the essence of [43] the trial. If anything whatever could be dictated to them, either of law or evidence, the sentence would not be theirs, but would be dictated to them by the power that dictated to them the law or evidence. The trial and sentence, then, were wholly in the hands of the jury.

We also have sufficient evidence of the nature of the oath administered to jurors in criminal cases. It was simply, that they would neither convict the innocent, nor acquit the guilty. This was the oath in the Saxon times, and probably continued to be until Magna Carta.

We also know that, in case of conviction, the sentence of the jury was not necessarily final; that the accused had the right of appeal to the king and his judges, and to demand either a new trial, or an acquittal, if the trial or conviction had been against law.

So much, therefore, of the legem terræ of Magna Carta, we know with reasonable certainty.

We also know that Magna Carta provides that “No bailiff (balivus) shall hereafter put any man to his law, (put him on trial,) on his single testimony, without credible witnesses brought to support it.” Coke thinks “that under this word balivus, in this act, is comprehended every justice, minister of the king, steward of the king, steward and bailiff.” (2 Inst. 44.) And in support of this idea he quotes from a very ancient law book, called the Mirror of Justices, written in the time of Edward I., within a century after Magna Carta. But whether this were really a common law principle, or whether the provision grew out of that jealousy of the government which, at the time of Magna Carta, had reached its height, cannot perhaps now be determined.

We also know that, by Magna Carta, amercements, or fines, could not be imposed to the ruin of the criminal; that, in the case of a freeman, his contenement, or means of subsisting in the condition of a freeman, must be saved to him; that, in the case of a merchant, his merchandise must be spared; and in the case of a villein, his waynage, or plough-tackle and carts. This also is likely to have been a principle of the common law, inasmuch as, in that rude age, when the means of getting employment as laborers were not what they are [44] now, the man and his family would probably have been liable to starvation, if these means of subsistence had been taken from him.

We also know, generally, that, at the time of Magna Carta, all acts intrinsically criminal, all trespasses against persons and property, were crimes, according to lex terræ, or the common law.

Beyond the points now given, we hardly know anything, probably nothing with certainty, as to what the “legem terræ” of Magna Carta did authorize, in regard to crimes. There is hardly anything extant that can give us any real light on the subject.

It would seem, however, that there were, even at that day, some common law principles governing arrests; and some common law forms and rules as to holding a man for trial, (by bail or imprisonment;) putting him on trial, such as by indictment or complaint; summoning and empanelling jurors, &c., &c. Whatever these common law principles were, Magna Carta requires them to be observed; for Magna Carta provides for the whole proceedings, commencing with the arrest, (“no freeman shall be arrested,” &c.,) and ending with the execution of the sentence. And it provides that nothing shall be done, by the government, from beginning to end, unless according to the sentence of the peers, or “legem terræ,” the common law. The trial by peers was a part of legem terræ, and we have seen that the peers must necessarily have governed the whole proceedings at the trial. But all the proceedings for arresting the man, and bringing him to trial, must have been had before the case could come under the cognizance of the peers, and they must, therefore, have been governed by other rules than the discretion of the peers. We may conjecture, although we cannot perhaps know with much certainty, that the lex terræ, or common law, governing these other proceedings, was somewhat similar to the common law principles, on the same points, at the present day. Such seem to be the opinions of Coke, who says that the phrase nisi per legem terræ means unless by due process of law.

Thus, he says:

“Nisi per legem terræ. But by the law of the land. For [45] the true sense and exposition of these words, see the statute of 37 Edw. III., cap. 8, where the words, by the law of the land, are rendered without due process of law; for there it is said, though it be contained in the Great Charter, that no man be taken, imprisoned, or put out of his freehold, without process of the law; that is, by indictment or presentment of good and lawful men, where such deeds be done in due manner, or by writ original of the common law.

“Without being brought in to answer but by due process of the common law.

“No man be put to answer without presentment before justices, or thing of record, or by due process, or by writ original, according to the old law of the land.”

—2 Inst. 50.

The foregoing interpretations of the words nisi per legem terræ are corroborated by the following statutes, enacted in the next century after Magna Carta.

“That no man, from henceforth, shall be attached by any accusation, nor forejudged of life or limb, nor his land, tenements, goods, nor chattels, seized into the king’s hands, against the form of the Great Charter, and the law of the land.”

—St. 5 Edward III., Ch. 9. (1331.)

“Whereas it is contained in the Great Charter of the franchises of England, that none shall be imprisoned, nor put out of his freehold, nor of his franchises, nor free customs, unless it be by the law of the land; it is accorded, assented, and established, that from henceforth none shall be taken by petition, or suggestion made to our lord the king, or to his council, unless it be by indictment or presentment of good and lawful people of the same neighborhood where such deeds be done in due manner, or by process made by writ original at the common law; nor that none be put out of his franchises, nor of his freehold, unless he be duly brought into answer, and forejudged of the same by the course of the law; and if anything be done against the same, it shall be redressed and holden for none.”

—St. 25 Edward III., Ch. 4. (1350.)

“That no man, of what estate or condition that he be, shall be put out of land or tenement, nor taken, nor imprisoned, nor disinherited, nor put to death, without being brought in answer by due process of law.”

—St. 28 Edward III., Ch. 3. (1354.)

“That no man be put to answer without presentment before justices, or matter of record, or by due process and writ original, according to the old law of the land. And if anything from henceforth be done to the contrary, it shall be void in law, and holden for error.”

—St. 42 Edward III., Ch. 3. (1368.)

[46]

The foregoing interpretation of the words nisi per legem terræ—that is, by due process of law—including indictment, &c., has been adopted as the true one by modern writers and courts; as, for example, by Kent, (2 Comm. 13,) Story, (3 Comm. 661,) and the Supreme Court of New York, (19 Wendell, 676; 4 Hill, 146.)

The fifth amendment to the constitution of the United States seems to have been framed on the same idea, inasmuch as it provides that “no person shall be deprived of life, liberty, or property, without due process of law.”*

Whether the word vel should be rendered by or, or by and.

Having thus given the meanings, or rather the applications, which the words vel per legem terræ will reasonably, and perhaps must necessarily, bear, it is proper to suggest, that it has been supposed by some that the word vel, instead of being rendered by or, as it usually is, ought to be rendered by and, inasmuch as the word vel is often used for et, and the whole phrase nisi per judicium parium suorum, vel per legem terræ, (which would then read, unless by the sentence of his peers, and the law of the land,) would convey a more intelligible and harmonious meaning than it otherwise does.

Blackstone suggests that this may be the true reading. (Charters, p. 41.) Also Mr. Hallam, who says:

“Nisi per legale judicium parium suorum, vel per legem terræ. Several explanations have been offered of the alternative clause; which some have referred to judgment by default, or demurrer; others to the process of attachment for contempt. Certainly there are many legal procedures besides trial by jury, through which a party’s goods or person may be taken. But one may doubt whether these were in contemplation of the framers of Magna Carta. In an entry of the Charter of 1217 by a contemporary hand, preserved in the Town-clerk’s office in London, called Liber Custumarum et Regum antiquarum, a various reading, et per legem terræ, occurs. Blackstone’s Charters, p. 42 (41.) And the word vel is so frequently used for et, that I am not wholly free from a suspicion that it [47] was so intended in this place. The meaning will be, that no person shall be disseized, &c., except upon a lawful cause of action, found by the verdict of a jury. This really seems as good as any of the disjunctive interpretations; but I do not offer it with much confidence.”

—2 Hallam’s Middle Ages, Ch. 8, Part 2, p. 449, note.*

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The idea that the word vel should be rendered by and, is corroborated, if not absolutely confirmed, by the following passage in Blackstone, which has before been cited. Speaking of the trial by jury, as established by Magna Carta, he calls it,

“A privilege which is couched in almost the same words [49] with that of the Emperor Conrad two hundred years before: ‘nemo beneficium suum perdat, nisi secundum consuetudinem antecessorum nostrorum, et judicium parium suorum.’ ” (No one shall lose his estate unless according to the custom of our ancestors, and the judgment of his peers.)

—3 Blackstone, 350.

If the word vel be rendered by and, (as I think it must be, at least in some cases,) this chapter of Magna Carta will then read that no freeman shall be arrested or punished, “unless according to the sentence of his peers, and the law of the land.”

The difference between this reading and the other is important. In the one case, there would be, at first view, some color of ground for saying that a man might be punished in either of two ways, viz., according to the sentence of his peers, or according to the law of the land. In the other case, it requires both the sentence of his peers and the law of the land (common law) to authorize his punishment.

If this latter reading be adopted, the provision would seem to exclude all trials except trial by jury, and all causes of action except those of the common law.

But I apprehend the word vel must be rendered both by and, and by or; that in cases of a judgment, it should be rendered by and, so as to require the concurrence both of “the judgment of the peers and the law of the land,” to authorize the king to make execution upon a party’s goods or person; but that in cases of arrest and imprisonment, simply for the purpose of bringing a man to trial, vel should be rendered by or, because there can have been no judgment of a jury in such a case, and “the law of the land” must therefore necessarily be the only guide to, and restraint upon, the king. If this guide and restraint were taken away, the king would be invested with an arbitrary and most dangerous power in making arrests, and confining in prison, under pretence of an intention to bring to trial.

Having thus examined the language of this chapter of Magna Carta, so far as it relates to criminal cases, its legal import may be stated as follows, viz.:

No freeman shall be arrested, or imprisoned, or deprived of his freehold, or his liberties, or free customs, or be outlawed, [50] or exiled, or in any manner destroyed, (harmed,) nor will we (the king) proceed against him, nor send any one against him, by force or arms, unless according to (that is, in execution of) the sentence of his peers, and (or or, as the case may require) the Common Law of England, (as it was at the time of Magna Carta, in 1215.)

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CHAPTER III.: ADDITIONAL PROOFS OF THE RIGHTS AND DUTIES OF JURORS.

If any evidence, extraneous to the history and language of Magna Carta, were needed to prove that, by that chapter which guaranties the trial by jury, all was meant that has now been ascribed to it, and that the legislation of the king was to be of no authority with the jury beyond what they chose to allow to it, and that the juries were to limit the punishments to be inflicted, we should find that evidence in various sources, such as the laws, customs, and characters of their ancestors on the continent, and of the northern Europeans generally; in the legislation and customs that immediately succeeded Magna Carta; in the oaths that have at different times been administered to jurors, &c., &c. This evidence can be exhibited here but partially. To give it all would require too much space and labor.

SECTION I.: Weakness of the Regal Authority.

Hughes, in his preface to his translation of Horne’s “Mirror of Justices,” (a book written in the time of Edward I., 1272 to 1307,) giving a concise view of the laws of England generally, says:

“Although in the Saxon’s time I find the usual words of the acts then to have been edictum, (edict,) constitutio, (statute,) little mention being made of the commons, yet I further find that, tum demum leges vim et vigerem habuerunt, cum fuerunt non modo institutæ sed firmatæ approbatione communitatis.” (The laws had force and vigor only when they were not only enacted, but confirmed by the approval of the community.)

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The Mirror of Justices itself also says, (ch. 1, sec. 3,) in speaking “Of the first Constitutions of the Ancient Kings:”

“Many ordinances were made by many kings, until the time of the king that now is (Edward I.); the which ordinances were abused, or not used by many, nor very current, because they were not put in writing, and certainly published.”

—Mirror of Justices, p. 6.

Hallam says:

“The Franks, Lombards, and Saxons seem alike to have been jealous of judicial authority; and averse to surrendering what concerned every man’s private right, out of the hands of his neighbors and equals.”

—1 Middle Ages, 271.

The “judicial authority,” here spoken of, was the authority of the kings, (who at that time united the office of both legislators and judges,) and not of a separate department of government, called the judiciary, like what has existed in more modern times.*

Hume says:

“The government of the Germans, and that of all the northern nations, who established themselves on the ruins of Rome, was always extremely free; and those fierce people, accustomed to independence and inured to arms, were more guided by persuasion than authority, in the submission which they paid to their princes. The military despotism, which had taken place in the Roman empire, and which, previously to the irruption of those conquerors, had sunk the genius of men, and destroyed every noble principle of science and virtue, was unable to resist the vigorous efforts of a free people, and Europe, as from a new epoch, rekindled her ancient spirit, and shook off the base servitude to arbitrary will and authority under which she had so long labored. The free constitutions then established, however impaired by the encroachments of succeeding princes, still preserve an air of independence and legal administration, which distinguished the European nations; and if that part of the globe maintain sentiments [53] of liberty, honor, equity, and valor, superior to the rest of mankind, it owes these advantages chiefly to the seeds implanted by those generous barbarians.

“The Saxons, who subdued Britain, as they enjoyed great liberty in their own country, obstinately retained that invaluable possession in their new settlement; and they imported into this island the same principles of independence, which they had inherited from their ancestors. The chieftains, (for such they were, more than kings or princes,) who commanded them in those military expeditions, still possessed a very limited authority; and as the Saxons exterminated, rather than subdued the ancient inhabitants, they were, indeed, transplanted into a new territory, but preserved unaltered all their civil and military institutions. The language was pure Saxon; even the names of places, which often remain while the tongue entirely changes, were almost all affixed by the conquerors; the manners and customs were wholly German; and the same picture of a fierce and bold liberty, which is drawn by the masterly pen of Tacitus, will suit those founders of the English government. The king, so far from being invested with arbitrary power, was only considered as the first among the citizens; his authority depended more on his personal qualities than on his station; he was even so far on a level with the people, that a stated price was fixed for his head, and a legal fine was levied upon his murderer, which though proportionate to his station, and superior to that paid for the life of a subject, was a sensible mark of his subordination to the community.”

—1 Hume, Appendix, 1.

Stuart says:

“The Saxons brought along with them into Britain their own customs, language, and civil institutions. Free in Germany, they renounced not their independence, when they had conquered. Proud from victory, and with their swords in their hands, would they surrender their liberties to a private man? Would temporary leaders, limited in their powers, and unprovided in resources, ever think to usurp an authority over warriors, who considered themselves as their equals, were impatient of control, and attached with devoted zeal to their privileges? Or, would they find leisure to form resolutions, or opportunities to put them in practice, amidst the tumult and confusion of those fierce and bloody wars, which their nations first waged with the Britons, and then engaged in among themselves? Sufficiently flattered in leading the armies of their countrymen, the ambition of commanders could as little suggest such designs, as the liberty of the people could submit to them. The conquerors of Britain retained their independence; [54] and this island saw itself again in that free state in which the Roman arms had discovered it.

“The same firmness of character, and generosity of manners, which, in general, distinguished the Germans, were possessed in an eminent degree by the Saxons; and while we endeavor to unfold their political institutions, we must perpetually turn our observation to that masterly picture in which the Roman historian has described these nations. In the woods of Germany shall we find the principles which directed the state of land, in the different kingdoms of Europe; and there shall we find the foundation of those ranks of men, and of those civil arrangements, which the barbarians everywhere established; and which the English alone have had the good fortune, or the spirit, to preserve.”

—Stuart on the Constitution of England, p. 59-61.

“Kings they (the Germans) respected as the first magistrates of the state; but the authority possessed by them was narrow and limited.”

—Ditto, p. 134.

“Did he, (the king,) at any time, relax his activity and martial ardor, did he employ his abilities to the prejudice of his nation, or fancy he was superior to the laws; the same power which raised him to honor, humbled and degraded him. The customs and councils of his country pointed out to him his duty; and if he infringed on the former, or disobeyed the latter, a fierce people set aside his authority. * * *

“His long hair was the only ornament he affected, and to be foremost to attack an enemy was his chief distinction. Engaged in every hazardous expedition, he was a stranger to repose; and, rivalled by half the heroes of his tribe, he could obtain little power. Anxious and watchful for the public interest, he felt every moment his dependence, and gave proofs of his submission.

“He attended the general assembly of his nation, and was allowed the privilege to harangue it first; but the arts of persuasion, though known and respected by a rude people, were unequally opposed to the prejudices and passions of men.”

—Ditto, p. 135-6.

“The authority of a Saxon monarch was not more considerable. The Saxons submitted not to the arbitrary rule of princes. They administered an oath to their sovereigns, which bound them to acknowledge the laws, and to defend the rights of the church and people; and if they forgot this obligation, they forfeited their office. In both countries, a price was affixed on kings, a fine expiated their murder, as well as that of the meanest citizen; and the smallest violation of ancient usage, [55] or the least step towards tyranny, was always dangerous, and often fatal to them.”

—Ditto, p. 139-40.

“They were not allowed to impose taxes on the kingdom.”

—Ditto, p. 146.

“Like the German monarchs, they deliberated in the general assembly of the nation; but their legislative authority was not much respected; and their assent was considered in no better light than as a form. This, however, was their chief prerogative; and they employed it to acquire an ascendant in the state. To art and insinuation they turned, as their only resource, and flattered a people whom they could not awe; but address, and the abilities to persuade, were a weak compensation for the absence of real power.

“They declared war, it is said, and made peace. In both cases, however, they acted as the instruments of the state, and put in execution the resolutions which its councils had decreed. If, indeed, an enemy had invaded the kingdom, and its glory and its safety were concerned, the great lords took the field at the call of their sovereign. But had a sovereign declared war against a neighboring state, without requiring their advice, or if he meant to revenge by arms an insult offered to him by a subject, a haughty and independent nobility refused their assistance. These they considered as the quarrels of the king, and not of the nation; and in all such emergencies he could only be assisted by his retainers and dependents.”

—Ditto, p. 147-8.

“Nor must we imagine that the Saxon, any more than the German monarchs, succeeded each other in a lineal descent,* or that they disposed of the crown at their pleasure. In both countries, the free election of the people filled the throne; and their choice was the only rule by which princes reigned. The succession, accordingly, of their kings was often broken and interrupted, and their depositions were frequent and groundless. The will of a prince whom they had long respected, and the favor they naturally transferred to his descendant, made them often advance him to the royal dignity; but the crown of his ancestor he considered as the gift of the people, and neither expected nor claimed it as a right.”

—Ditto, p. 151-3.

In Germany “It was the business of the great to command in war, and in peace they distributed justice. * * *

[56]

“The princes in Germany were earls in England. The great contended in both countries in the number of their retainers, and in that splendor and magnificence which are so alluring to a rude people; and though they joined to set bounds to regal power, they were often animated against each other with the fiercest hatred. To a proud and impatient nobility it seemed little and unsuiting to give or accept compositions for the injuries they committed or received; and their vassals adopting their resentment and passions, war and bloodshed alone could terminate their quarrels. What necessarily resulted from their situation in society, was continued as a privilege; and the great, in both countries, made war, of their private authority, on their enemies. The Saxon earls even carried their arms against their sovereigns; and, surrounded with retainers, or secure in fortresses and castles, they despised their resentment, and defied their power.

“The judges of the people, they presided in both countries in courts of law.* The particular districts over which they exerted their authority were marked out in Germany by the council of the state; and in England their jurisdiction extended over the fiefs and other territories they possessed. All causes, both civil and criminal, were tried before them; and they judged, except in cases of the utmost importance, without appeal. They were even allowed to grant pardon to criminals, and to correct by their clemency the rigors of justice. Nor did the sovereign exercise any authority in their lands. In these his officers formed no courts, and his writ was disregarded. * * *

“They had officers, as well as the king, who collected their revenues, and added to their greatness; and the inhabitants of their lands they distinguished by the name of subjects.

“But to attend the general assembly of their nation was the chief prerogative of the German and Saxon princes; and as they consulted the interest of their country, and deliberated concerning matters of state, so in the king’s court, of which also they were members, they assisted to pronounce judgment in the complaints and appeals which were lodged in it.”

—Ditto, p. 158 to 165.

Henry says:

“Nothing can be more evident than this important truth; that our Anglo-Saxon kings were not absolute monarchs; but [57] that their powers and prerogatives were limited by the laws and customs of the country. Our Saxon ancestors had been governed by limited monarchs in their native seats on the continent; and there is not the least appearance or probability that they relinquished their liberties, and submitted to absolute government in their new settlements in this island. It is not to be imagined that men, whose reigning passion was the love of liberty, would willingly resign it; and their new sovereigns, who had been their fellow-soldiers, had certainly no power to compel them to such a resignation.”

—3 Henry’s History of Great Britain, 358.

Mackintosh says: “The Saxon chiefs, who were called kings, originally acquired power by the same natural causes which have gradually, and everywhere, raised a few men above their fellows. They were, doubtless, more experienced, more skilful, more brave, or more beautiful, than those who followed them. * * A king was powerful in war by the lustre of his arms, and the obvious necessity of obedience. His influence in peace fluctuated with his personal character. In the progress of usage his power became more fixed and more limited. * * It would be very unreasonable to suppose that the northern Germans who had conquered England, had so far changed their characteristic habits from the age of Tacitus, that the victors became slaves, and that their generals were converted into tyrants.”

—Mackintosh’s Hist. of England, Ch. 2. 45 Lardner’s Cab. Cyc., 73-4.

Rapin, in his discourse on the “Origin and Nature of the English Constitution,” says:

“There are but two things the Saxons did not think proper to trust their kings with; for being of like passions with other men, they might very possibly abuse them; namely, the power of changing the laws enacted by consent of king and people; and the power of raising taxes at pleasure. From these two articles sprung numberless branches concerning the liberty and property of the subject, which the king cannot touch, without breaking the constitution, and they are the distinguishing character of the English monarchy. The prerogatives of the crown, and the rights and privileges of the people, flowing from the two fore-mentioned articles, are the ground of all the laws that from time to time have been made by unanimous consent of king and people. The English government consists in the strict union of the king’s prerogatives with the people’s liberties. * * But when kings arose, as some there were, that aimed at absolute power, by changing the old, and making new laws, at pleasure; by imposing illegal [58] taxes on the people; this excellent government being, in a manner, dissolved by these destructive measures, confusion and civil wars ensued, which some very wrongfully ascribe to the fickle and restless temper of the English.”

—Rapin’s Preface to his History of England.

Hallam says that among the Saxons, “the royal authority was weak.”—2 Middle Ages, 403.

But although the king himself had so little authority, that it cannot be supposed for a moment that his laws were regarded as imperative by the people, it has nevertheless been claimed, in modern times, by some who seem determined to find or make a precedent for the present legislative authority of parliament, that his laws were authoritative, when assented to by the Witena-gemote, or assembly of wise men—that is, the bishops and barons. But this assembly evidently had no legislative power whatever. The king would occasionally invite the bishops and barons to meet him for consultation on public affairs, simply as a council, and not as a legislative body. Such as saw fit to attend, did so. If they were agreed upon what ought to be done, the king would pass a law accordingly, and the barons and bishops would then return and inform the people orally what laws had been passed, and use their influence with them to induce them to conform to the law of the king, and the recommendation of the council. And the people no doubt were much more likely to accept a law of the king, if it had been approved by this council, than if it had not. But it was still only a law of the king, which they obeyed or disregarded according to their own notions of expediency. The numbers who usually attended this council were too small to admit of the supposition that they had any legislative authority whatever, to impose laws upon the people against their will.

Lingard says:

“It was necessary that the king should obtain the assent of these (the members of the Witena-gemotes) to all legislative enactments; because, without their acquiescence and support, it was impossible to carry them into execution. To many charters (laws) we have the signatures of the Witan. They seldom exceed thirty in number; they never amount to sixty.”

—1 Lingard, 486.

[59]

It is ridiculous to suppose that the assent of such an assembly gave any authority to the laws of the king, or had any influence in securing obedience to them, otherwise than by way of persuasion. If this body had had any real legislative authority, such as is accorded to legislative bodies of the present day, they would have made themselves at once the most conspicuous portion of the government, and would have left behind them abundant evidence of their power, instead of the evidence simply of their assent to a few laws passed by the king.

More than this. If this body had had any real legislative authority, they would have constituted an aristocracy, having, in conjunction with the king, absolute power over the people. Assembling voluntarily, merely on the invitation of the king; deputed by nobody but themselves; representing nobody but themselves; responsible to nobody but themselves; their legislative authority, if they had had any, would of necessity have made the government the government of an aristocracy merely, and the people slaves, of course. And this would necessarily have been the picture that history would have given us of the Anglo-Saxon government, and of Anglo-Saxon liberty.

The fact that the people had no representation in this assembly, and the further fact that, through their juries alone, they nevertheless maintained that noble freedom, the very tradition of which (after the substance of the thing itself has ceased to exist) has constituted the greatest pride and glory of the nation to this day, prove that this assembly exercised no authority which juries of the people acknowledged, except at their own discretion.*

[60]

There is not a more palpable truth, in the history of the Anglo-Saxon government, than that stated in the Introduction to Gilbert’s History of the Common Pleas,* viz., “that the County and Hundred Courts,” (to which should have been added the other courts in which juries sat, the courts-baron and court-leet,) “in those times were the real and only Parliaments of the kingdom.” And why were they the real and only parliaments of the kingdom? Solely because, as will be hereafter shown, the juries in those courts tried causes on their intrinsic merits, according to their own ideas of justice, irrespective of the laws agreed upon by kings, priests, and barons; and whatever principles they uniformly, or perhaps generally, enforced, and none others, became practically the law of the land as matter of course.†

Finally, on this point. Conclusive proof that the legislation of the king was of little or no authority, is found in the fact that the kings enacted so few laws. If their laws had been received as authoritative, in the manner that legislative enactments are at this day, they would have been making laws continually. Yet the codes of the most celebrated kings are very small, and were little more than compilations of immemorial customs. The code of Alfred would not fill twelve [61] pages of the statute book of Massachusetts, and was little or nothing else than a compilation of the laws of Moses, and the Saxon customs, evidently collected from considerations of convenience, rather than enacted on the principle of authority. The code of Edward the Confessor would not fill twenty pages of the statute book of Massachusetts, and, says Blackstone, “seems to have been no more than a new edition, or fresh promulgation of Alfred’s code, or dome-book, with such additions and improvements as the experience of a century and a half suggested.”—1 Blackstone, 66.*

[62]

The Code of William the Conqueror* would fill less than seven pages of the statute book of Massachusetts; and most of the laws contained in it are taken from the laws of the preceding kings, and especially of Edward the Confessor (whose laws William swore to observe); but few of his own being added.

The codes of the other Saxon and Norman kings were, as a general rule, less voluminous even than these that have been named; and probably did not exceed them in originality.† The Norman princes, from William the Conqueror to John, I think without exception, bound themselves, and, in order to maintain their thrones, were obliged to bind themselves, to observe the ancient laws and customs, in other words, the “lex terræ,” or “common law” of the kingdom. Even Magna Carta contains hardly anything other than this same “common law,” with some new securities for its observance.

[63]

How is this abstinence from legislation, on the part of the ancient kings, to be accounted for, except on the supposition that the people would accept, and juries enforce, few or no new laws enacted by their kings? Plainly it can be accounted for in no other way. In fact, all history informs us that anciently the attempts of the kings to introduce or establish new laws, met with determined resistance from the people, and generally resulted in failure. “Nolumus Leges Angliæ mutari,” (we will that the laws of England be not changed,) was a determined principle with the Anglo-Saxons, from which they seldom departed, up to the time of Magna Carta, and indeed until long after.*

SECTION II.: The Ancient Common Law Juries were mere Courts of Conscience.

But it is in the administration of justice, or of law, that the freedom or subjection of a people is tested. If this administration be in accordance with the arbitrary will of the legislator—that is, if his will, as it appears in his statutes, be the highest rule of decision known to the judicial tribunals,—the government is a despotism, and the people are slaves. If, on the other hand, the rule of decision be those principles of natural equity and justice, which constitute, or at least are embodied in, the general conscience of mankind, the people are free in just so far as that conscience is enlightened.

That the authority of the king was of little weight with the judicial tribunals, must necessarily be inferred from the fact already stated, that his authority over the people was but weak. If the authority of his laws had been paramount in the judicial tribunals, it would have been paramount with the people, of course; because they would have had no alternative [64] but submission. The fact, then, that his laws were not authoritative with the people, is proof that they were not authoritative with the tribunals—in other words, that they were not, as matter of course, enforced by the tribunals.

But we have additional evidence that, up to the time of Magna Carta, the laws of the king were not binding upon the judicial tribunals; and if they were not binding before that time, they certainly were not afterwards, as has already been shown from Magna Carta itself. It is manifest from all the accounts we have of the courts in which juries sat, prior to Magna Carta, such as the court-baron, the hundred court, the court-leet, and the county court, that they were mere courts of conscience, and that the juries were the judges, deciding causes according to their own notions of equity, and not according to any laws of the king, unless they thought them just.

These courts, it must be considered, were very numerous, and held very frequent sessions. There were probably seven, eight, or nine hundred courts a month, in the kingdom; the object being, as Blackstone says, “to bring justice home to every man’s door.” (3 Blackstone, 30.) The number of the county courts, of course, corresponded to the number of counties, (36.) The court-leet was the criminal court for a district less than a county. The hundred court was the court for one of those districts anciently called a hundred, because, at the time of their first organization for judicial purposes, they comprised (as is supposed) but a hundred families.* The court-baron was the court for a single manor, and there was a court for every manor in the kingdom. All these courts were holden as often as once in three or five weeks; the county court once a month. The king’s judges were present at none of these courts; the only officers in attendance being sheriffs, bailiffs, and stewards, merely ministerial, and not judicial, officers; doubtless incompetent, and, if not incompetent, untrustworthy, for giving the juries any reliable information in matters of law, beyond what was already known to the jurors themselves. [65] And yet these were the courts, in which was done all the judicial business, both civil and criminal, of the nation, except appeals, and some of the more important and difficult cases.* It is plain that the juries, in these courts, must, of necessity, have been the sole judges of all matters of law whatsoever; because there was no one present, but sheriffs, bailiffs, and stewards, to give them any instructions; and surely it will not be pretended that the jurors were bound to take their law from such sources as these.

In the second place, it is manifest that the principles of law, by which the juries determined causes, were, as a general rule, nothing else than their own ideas of natural equity, and not any laws of the king; because but few laws were enacted, and many of those were not written, but only agreed upon in council.† Of those that were written, few copies only were made, (printing being then unknown,) and not enough to supply all, or any considerable number, of these numerous courts. Beside and beyond all this, few or none of the jurors could have read the laws, if they had been written; because few or none of the common people could, at that time, read. Not only were the common people unable to read their own language, but, at the time of Magna Carta, the laws were written in Latin, a language that could be read by few persons except the priests, who were also the lawyers of the nation. Mackintosh says, “the first act of the House of Commons composed and recorded in the English tongue,” was in 1415, two centuries after Magna Carta.‡ Up to this time, and for some seventy years later, the laws were generally written [66] either in Latin or French; both languages incapable of being read by the common people, as well Normans as Saxons; and one of them, the Latin, not only incapable of being read by them, but of being even understood when it was heard by them.

To suppose that the people were bound to obey, and juries to enforce, laws, many of which were unwritten, none of which they could read, and the larger part of which (those written in Latin) they could not translate, or understand when they heard them read, is equivalent to supposing the nation sunk in the most degrading slavery, instead of enjoying a liberty of their own choosing.

Their knowledge of the laws passed by the king was, of course, derived only from oral information; and “the good laws,” as some of them were called, in contradistinction to others—those which the people at large esteemed to be good laws—were doubtless enforced by the juries, and the others, as a general thing, disregarded.*

That such was the nature of judicial proceedings, and of the power of juries, up to the time of Magna Carta, is further shown by the following authorities.

“The sheriffs and bailiffs caused the free tenants of their bailiwics to meet at their counties and hundreds; at which justice was so done, that every one so judged his neighbor by such judgment as a man could not elsewhere receive in the like cases, until such times as the customs of the realm were put in writing, and certainly published.

“And although a freeman commonly was not to serve (as a juror or judge) without his assent, nevertheless it was assented unto that free tenants should meet together in the counties and hundreds, and lords courts, if they were not specially exempted to do such suits, and there judged their neighbors.”

—Mirror of Justices, p. 7, 8.

[67]

Gilbert, in his treatise on the Constitution of England, says:

“In the county courts, if the debt was above forty shillings, there issued a justicies (a commission) to the sheriff, to enable him to hold such a plea, where the suitors (jurors) are judges of the law and fact.”

—Gilbert’s Cases in Law and Equity, &c., &c., 456.

All the ancient writs, given in Glanville, for summoning jurors, indicate that the jurors judged of everything, on their consciences only. The writs are in this form:

“Summon twelve free and legal men (or sometimes twelve knights) to be in court, prepared upon their oaths to declare whether A or B have the greater right to the land (or other thing) in question.” See Writs in Beames’ Glanville, p. 54 to 70, and 233-306 to 332.

Crabbe, speaking of the time of Henry I., (1100 to 1135,) recognizes the fact that the jurors were the judges. He says:

“By one law, every one was to be tried by his peers, who were of the same neighborhood as himself. * * By another law, the judges, for so the jury were called, were to be chosen by the party impleaded, after the manner of the Danish nembas; by which, probably, is to be understood that the defendant had the liberty of taking exceptions to, or challenging the jury, as it was afterwards called.”

—Crabbe’s History of the English Law, p. 55.

Reeve says:

“The great court for civil business was the county court; held once every four weeks. Here the sheriff presided; but the suitors of the court, as they were called, that is, the freemen or landholders of the county, were the judges; and the sheriff was to execute the judgment. * * *

“The hundred court was held before some bailiff; the leet before the lord of the manor’s steward.† * *

“Out of the county court was derived an inferior court of civil jurisdiction, called the court-baron. This was held from three weeks to three weeks, and was in every respect like the county court;” (that is, the jurors were judges in it;) “only the lord to whom this franchise was granted, or his steward, [68] presided instead of the sheriff.”

—1 Reeve’s History of the English Law, p. 7.

Chief Baron Gilbert says:

“Besides the tenants of the king, which held per baroniam, (by the right of a baron,) and did suit and service (served as judges) at his own court; and the burghers and tenants in ancient demesne, that did suit and service (served as jurors or judges) in their own court in person, and in the king’s by proxy, there was also a set of freeholders, that did suit and service (served as jurors) at the county court. These were such as anciently held of the lord of the county, and by the escheats of earldoms had fallen to the king; or such as were granted out by service to hold of the king, but with particular reservation to do suit and service (serve as jurors) before the king’s bailiff; because it was necessary the sheriff, or bailiff of the king, should have suitors (jurors) at the county court, that the business might be despatched. These suitors are the pares (peers) of the county court, and indeed the judges of it; as the pares (peers) were the judges in every court-baron; and therefore the king’s bailiff having a court before him, there must be pares or judges, for the sheriff himself is not a judge; and though the style of the court is Curia prima Comitatus E. C. Milit.’ vicecom’ Comitat’ præd’ Tent’ apud B., &c. (First Court of the county, E. C. knight, sheriff of the aforesaid county, held at B., &c.); by which it appears that the court was the sheriff’s; yet, by the old feudal constitutions, the lord was not judge, but the pares (peers) only; so that, even in a justicies, which was a commission to the sheriff to hold plea of more than was allowed by the natural jurisdiction of a county court, the pares (peers, jurors) only were judges, and not the sheriff; because it was to hold plea in the same manner as they used to do in that (the lord’s) court.”

—Gilbert on the Court of Exchequer, ch. 5, p. 61-2.

“It is a distinguishing feature of the feudal system, to make civil jurisdiction necessarily, and criminal jurisdiction ordinarily, coëxtensive with tenure; and accordingly there is inseparably incident to every manor a court-baron (curia baronum), being a court in which the freeholders of the manor are the sole judges, but in which the lord, by himself, or more commonly by his steward, presides.”

—Political Dictionary, word Manor.

The same work, speaking of the county court, says: “The judges were the freeholders who did suit to the court.” See word Courts.

“In the case of freeholders attending as suitors, the county [69] court or court-baron, (as in the case of the ancient tenants per baroniam attending Parliament,) the suitors are the judges of the court, both for law and for fact, and the sheriff or the under sheriff in the county court, and the lord or his steward in the court-baron, are only presiding officers, with no judicial authority.”

—Political Dictionary, word Suit.

“Court, (curtis, curia aula); the space enclosed by the walls of a feudal residence, in which the followers of a lord used to assemble in the middle ages, to administer justice, and decide respecting affairs of common interest, &c. It was next used for those who stood in immediate connexion with the lord and master, the pares curiæ, (peers of the court,) the limited portion of the general assembly, to which was entrusted the pronouncing of judgment,” &c.

—Encyclopedia Americana, word Court.

“In court-barons or county courts the steward was not judge, but the pares (peers, jurors); nor was the speaker in the House of Lords judge, but the barons only.”

—Gilbert on the Court of Exchequer, ch. 3, p. 42.

Crabbe, speaking of the Saxon times, says:

“The sheriff presided at the hundred court, * * and sometimes sat in the place of the alderman (earl) in the county court.”

—Crabbe, 23.

The sheriff afterwards became the sole presiding officer of the county court.

Sir Thomas Smith, Secretary of State to Queen Elizabeth, writing more than three hundred years after Magna Carta, in describing the difference between the Civil Law and the English Law, says:

“Judex is of us called Judge, but our fashion is so divers, that they which give the deadly stroke, and either condemn or acquit the man for guilty or not guilty, are not called judges, but the twelve men. And the same order as well in civil matters and pecuniary, as in matters criminal.”

—Smith’s Commonwealth of England, ch. 9, p. 53, Edition of 1621.

Court-Leet. “That the leet is the most ancient court in the land for criminal matters, (the court-baron being of no less antiquity in civil,) has been pronounced by the highest legal authority. * * Lord Mansfield states that this court was coeval with the establishment of the Saxons here, and its activity marked very visibly both among the Saxons and Danes. * * The leet is a court of record for the cognizance of criminal matters, or pleas of the crown; and necessarily belongs to the king; though a subject, usually the lord [70] of the manor, may be, and is, entitled to the profits, consisting of the essoign pence, fines, and amerciaments.

“It is held before the steward, or was, in ancient times, before the bailiff, of the lord.”

—Tomlin’s Law Dict., word Court-Leet.

Of course the jury were the judges in this court, where only a “steward” or “bailiff” of a manor presided.

“No cause of consequence was determined without the king’s writ; for even in the county courts, of the debts, which were above forty shillings, there issued a Justicies (commission) to the sheriff, to enable him to hold such plea, where the suitors are judges of the law and fact.”

—Gilbert’s History of the Common Pleas, Introduction, p. 19.

“This position” (that “the matter of law was decided by the King’s Justices, but the matter of fact by the pares”) “is wholly incompatible with the common law, for the Jurata (jury) were the sole judges both of the law and the fact.”

—Gilbert’s History of the Common Pleas, p. 70, note.

“We come now to the challenge; and of old the suitors in court, who were judges, could not be challenged; nor by the feudal law could the pares be even challenged, Pares qui ordinariam jurisdictionem habent recusari non possunt; (the peers who have ordinary jurisdiction cannot be rejected;) “but those suitors who are judges of the court, could not be challenged; and the reason is, that there are several qualifications required by the writ, viz., that they be liberos et legales homines de vincineto (free and legal men of the neighborhood) of the place laid in the declaration,” &c., &c.

—Ditto, p. 93.

“Ad questionem juris non respondent Juratores.” (To the question of law the jurors do not answer.) “The Annotist says, that this is indeed a maxim in the Civil-Law Jurisprudence, but it does not bind an English jury, for by the common law of the land the jury are judges as well of the matter of law, as of the fact, with this difference only, that the (a Saxon word) or judge on the bench is to give them no assistance in determining the matter of fact, but if they have any doubt among themselves relating to matter of law, they may then request him to explain it to them, which when he hath done, and they are thus become well informed, they, and they only, become competent judges of the matter of law. And this is the province of the judge on the bench, namely, to show, or teach the law, but not to take upon him the trial of the delinquent, either in matter of fact or in matter of law.” (Here various Saxon laws are quoted.) “In neither of these fundamental [71] laws is there the least word, hint, or idea, that the earl or alderman (that is to say, the Prepositus (presiding officer) of the court, which is tantamount to the judge on the bench) is to take upon him to judge the delinquent in any sense whatever, the sole purport of his office is to teach the secular or worldly law.”

—Ditto, p. 57, note.

“The administration of justice was carefully provided for; it was not the caprice of their lord, but the sentence of their peers, that they obeyed. Each was the judge of his equals, and each by his equals was judged.”

—Introd. to Gilbert on Tenures, p. 12.

Hallam says: “A respectable class of free socagers, having, in general, full rights of alienating their lands, and holding them probably at a small certain rent from the lord of the manor, frequently occur in Domes-day Book. * * They undoubtedly were suitors to the court-baron of the lord, to whose soc, or right of justice, they belonged. They were consequently judges in civil causes, determined before the manorial tribunal.”

—2 Middle Ages, 481.

Stephens adopts as correct the following quotations from Blackstone:

“The Court-Baron is a court incident to every manor in the kingdom, to be holden by the steward within the said manor.” * * It “is a court of common law, and it is the court before the freeholders who owe suit and service to the manor,” (are bound to serve as jurors in the courts of the manor,) “the steward being rather the registrar than the judge. * * The freeholders’ court was composed of the lord’s tanants, who were the pares (equals) of each other, and were bound by their feudal tenure to assist their lord in the dispensation of domestic justice. This was formerly held every three weeks; and its most important business was to determine, by writ of right, all controversies relating to the right of lands within the manor.”

—3 Stephens’ Commentaries, 392-3. 3 Blackstone, 32-3.

“A Hundred Court is only a larger court-baron, being held for all the inhabitants of a particular hundred, instead of a manor. The free suitors (jurors) are here also the judges, and the steward the register.”

—3 Stephens, 394. 3 Blackstone, 33.

“The County Court is a court incident to the jurisdiction of the sheriff. * * The freeholders of the county are the real judges in this court, and the sheriff is the ministerial officer.”

—3 Stephens, 395-6. 3 Blackstone, 35-6.

[72]

Blackstone describes these courts, as courts “wherein injuries were redressed in an easy and expeditious manner, by the suffrage of neighbors and friends.”

—3 Blackstone, 30.

“When we read of a certain number of freemen chosen by the parties to decide in a dispute—all bound by oath to vote in foro conscientia—and that their decision, not the will of the judge presiding, ended the suit, we at once perceive that a great improvement has been made in the old form of compurgation—an improvement which impartial observation can have no hesitation to pronounce as identical in its main features with the trial by jury.”

—Dunham’s Middle Ages, Sec. 2, B. 2, Ch. 1. 57 Lardner’s Cab. Cyc., 60.

“The bishop and the earl, or, in his absence, the gerefa, (sheriff,) and sometimes both the earl and the gerefa, presided at the schyre-mote (county court); the gerefa (sheriff) usually alone presided at the mote (meeting or court) of the hundred. In the cities and towns which were not within any peculiar jurisdiction, there was held, at regular stated intervals, a burgh mote, (borough court,) for the administration of justice, at which a gerefa, or a magistrate appointed by the king, presided.”

—Spence’s Origin of the Laws and Political Institutions of Modern Europe, p. 444.

“The right of the plaintiff and defendant, and of the prosecutor and criminal, to challenge the judices, (judges,) or assessors,* appointed to try the cause in civil matters, and to decide upon the guilt or innocence of the accused in criminal matters, is recognized in the treatise called the Laws of Henry the First; but I cannot discover, from the Anglo-Saxon laws or histories, that before the Conquest the parties had any general right of challenge; indeed, had such right existed, the injunctions to all persons standing in the situation of judges (jurors) to do right according to their conscience, would scarcely have been so frequently and anxiously repeated.”

—Spence, 456.

Hale says:

“The administration of the common justice of the kingdom seems to be wholly dispensed in the county courts, hundred courts, and courts-baron; except some of the greater crimes reformed by the laws of King Henry I., and that part thereof which was sometimes taken up by the Justitiarius Angliæ. [73] This doubtless bred great inconvenience, uncertainty, and variety in the laws, viz.:

“First, by the ignorance of the judges, which were the freeholders of the county. * *

“Thirdly, a third inconvenience was, that all the business of any moment was carried by parties and factions. For the freeholders being generally the judges, and conversing one among another, and being as it were the chief judges, not only of the fact, but of the law; every man that had a suit there, sped according as he could make parties.”

—1 Hale’s History of the Common Law, p. 246.

“In all these tribunals,” (county court, hundred court, &c.,) “the judges were the free tenants, owing suit to the court, and afterwards called its peers.”

—1 Lingard’s History of England, 488.

Henry calls the twelve jurors “assessors,” and says:

“These assessors, who were in reality judges, took a solemn oath, that they would faithfully discharge the duties of their office, and not suffer an innocent man to be condemned, nor any guilty person to be acquitted.”

—3 Henry’s History of Great Britain, 346.

Tyrrell says:

“Alfred cantoned his kingdom, first into Trihings and Lathes, as they are still called in Kent and other places, consisting of three or four Hundreds; in which, the freeholders being judges, such causes were brought as could not be determined in the Hundred court.”

—Tyrrell’s Introduction to the History of England, p. 80.

Of the Hundred Court he says:

“In this court anciently, one of the principal inhabitants, called the alderman, together with the barons of the Hundred*

—id est the freeholders—was judge.”—Ditto, p. 80.

Also he says:

“By a law of Edward the Elder, ‘Every sheriff shall convene [74] the people once a month, and do equal right to all, putting an end to controversies at times appointed.’ ”

—Ditto, p. 86.

“A statute, emphatically termed the ‘Grand Assize,’ enabled the defendant, if he thought proper, to abide by the testimony of the twelve good and lawful knights, chosen by four others of the vicinage, and whose oaths gave a final decision to the contested claim.”

—1 Palgrave’s Rise and Progress of the English Commonwealth, 261.

“From the moment when the crown became accustomed to the ‘Inquest,’ a restraint was imposed upon every branch of the prerogative. The king could never be informed of his rights, but through the medium of the people. Every ‘extent’ by which he claimed the profits and advantages resulting from the casualties of tenure, every process by which he repressed the usurpations of the baronage, depended upon the ‘good men and true’ who were impanelled to ‘pass’ between the subject and the sovereign; and the thunder of the Exchequer at Westminster might be silenced by the honesty, the firmness, or the obstinacy, of one sturdy knight or yeoman in the distant shire.

Taxation was controlled in the same manner by the voice of those who were most liable to oppression. * * A jury was impanelled to adjudge the proportion due to the sovereign; and this course was not essentially varied, even after the right of granting aids to the crown was fully acknowledged to be vested in the parliament of the realm. The people taxed themselves; and the collection of the grants was checked and controlled, and, perhaps, in many instances evaded, by these virtual representatives of the community.

The principle of the jury was, therefore, not confined to its mere application as a mode of trying contested facts, whether in civil or criminal cases; and, both in its form and in its consequences, it had a very material influence upon the general constitution of the realm. * * The main-spring of the machinery of remedial justice existed in the franchise of the lower and lowest orders of the political hierarchy. Without the suffrage of the yeoman, the burgess, and the churl, the sovereign could not exercise the most important and most essential function of royalty; from them he received the power of life and death; he could not wield the sword of justice until the humblest of his subjects placed the weapon in his hand.”

—1 Palgrave’s Rise and Progress of the English Constitution, 274-7.

[75]

Coke says, “The court of the county is no court of record,* and the suitors are the judges thereof.”

—4 Inst., 266.

Also, “The court of the Hundred is no court of record, and the suitors be thereof judges.”

—4 Inst., 267.

Also, “The court-baron is a court incident to every manor, and is not of record, and the suitors be thereof judges.”

—4 Inst., 268.

Also, “The court of ancient demesne is in the nature of a court-baron, wherein the suitors are judges, and is no court of record.”

—4 Inst., 269.

Millar says, “Some authors have thought that jurymen were originally compurgators, called by a defendant to swear that they believed him innocent of the facts with which he was charged. . . But . . compurgators were merely witnesses; jurymen were, in reality, judges. The former were called to confirm the oath of the party by swearing, according to their belief, that he had told the truth, (in his oath of purgation;) the latter were appointed to try, by witnesses, and by all other means of proof, whether he was innocent or guilty. . . Juries were accustomed to ascertain the truth of facts, by the defendant’s oath of purgation, together with that of his compurgators. . . Both of them (jurymen and compurgators) were obliged to swear that they would tell the truth. . . According to the simple idea of our forefathers, guilt or innocence was regarded as a mere matter of fact; and it was thought that no man, who knew the real circumstances of a case, could be at a loss to determine whether the culprit ought to be condemned or acquitted.”

—1 Millar’s Hist. View of Eng. Gov., ch. 12, p. 332-4.

Also, “The same form of procedure, which took place in the administration of justice among the vassals of a barony, was gradually extended to the courts held in the trading towns.”

—Same, p. 335.

Also, “The same regulations, concerning the distribution of justice by the intervention of juries, . . were introduced into the baron courts of the king, as into those of the nobility, or such of his subjects as retained their allodial property.”

—Same, p. 337.

Also, “This tribunal” (the aula regis, or king’s court, afterwards divided into the courts of King’s Bench, Common [76] Pleas, and Exchequer) “was properly the ordinary baron-court of the king; and, being in the same circumstances with the baron courts of the nobility, it was under the same necessity of trying causes by the intervention of a jury.”

—Same, vol. 2, p. 292.

Speaking of the times of Edward the First, (1272 to 1307,) Millar says:

“What is called the petty jury was therefore introduced into these tribunals, (the King’s Bench, the Common Pleas, and the Exchequer,) as well as into their auxiliary courts employed to distribute justice in the circuits; and was thus rendered essentially necessary in determining causes of every sort, whether civil, criminal, or fiscal.”

—Same, vol. 2, p. 293-4.

Also, “That this form of trial (by jury) obtained universally in all the feudal governments, as well as in that of England, there can be no reason to doubt. In France, in Germany, and in other European countries, where we have any accounts of the constitution and procedure of the feudal courts, it appears that lawsuits of every sort concerning the freemen or vassals of a barony, were determined by the pares curiæ (peers of the court;) and that the judge took little more upon him than to regulate the method of proceeding, or to declare the verdict of the jury.”

—Same, vol. 1, ch. 12, p. 329.

Also, “Among the Gothic nations of modern Europe, the custom of deciding lawsuits by a jury seems to have prevailed universally; first in the allodial courts of the county, or of the hundred, and afterwards in the baron-courts of every feudal superior.”

—Same, vol. 2, p. 296.

Palgrave says that in Germany “The Graff (gerefa, sheriff) placed himself in the seat of judgment, and gave the charge to the assembled free Echevins, warning them to pronounce judgment according to right and justice.”

—2 Palgrave, 147.

Also, that, in Germany, “The Echevins were composed of the villanage, somewhat obscured in their functions by the learning of the grave civilian who was associated to them, and somewhat limited by the encroachments of modern feudality; but they were still substantially the judges of the court.”

—Same, 148.

Palgrave also says, “Scotland, in like manner, had the laws of Burlaw, or Birlaw, which were made and determined by the neighbors, elected by common consent, in the Burlaw or Birlaw courts, wherein knowledge was taken of complaints between neighbor and neighbor, which men, so chosen, were judges and arbitrators, and called Birlaw men.”

—1 Palgrave’s Rise, &c., p. 80.

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But, in order to understand the common law trial by jury, as it existed prior to Magna Carta, and as it was guaranteed by that instrument, it is perhaps indispensable to understand more fully the nature of the courts in which juries sat, and the extent of the powers exercised by juries in those courts. I therefore give in a note extended extracts, on these points, from Stuart on the Constitution of England, and from Blackstone’s Commentaries.*

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That all these courts were mere courts of conscience, in which the juries were sole judges, administering justice according to their own ideas of it, is not only shown by the extracts [79] already given, but is explicitly acknowledged in the following one, in which the modern “courts of conscience” are compared with the ancient hundred and county courts, and the preference [80] given to the latter, on the ground that the duties of the jurors in the one case, and of the commissioners in the other, are the same, and that the consciences of a jury are a safer and purer [81] tribunal than the consciences of individuals specially appointed, and holding permanent offices.

“But there is one species of courts constituted by act of Parliament, in the city of London, and other trading and populous districts, which, in their proceedings, so vary from the course of the common law, that they deserve a more particular consideration. I mean the court of requests, or courts of conscience, for the recovery of small debts. The first of these was established in London so early as the reign of Henry VIII., by an act of their common council; which, however, was certainly insufficient for that purpose, and illegal, till confirmed by statute 3 Jac. I., ch. 15, which has since been explained and amended by statute 14 Geo. II., ch. 10. The constitution is this: two aldermen and four commoners sit twice a week to hear all causes of debt not exceeding the value of forty shillings; which they examine in a summary way, by the oath of the parties or other witnesses, and make such order therein as is consonant to equity and good conscience. * * * Divers trading towns and other districts have obtained acts of Parliament, [82] for establishing in them courts of conscience upon nearly the same plan as that in the city of London.

“The anxious desire that has been shown to obtain these several acts, proves clearly that the nation, in general, is truly sensible of the great inconvenience arising from the disuse of the ancient county and hundred courts, wherein causes of this small value were always formerly decided with very little trouble and expense to the parties. But it is to be feared that the general remedy, which of late hath been principally applied to this inconvenience, (the erecting these new jurisdictions,) may itself be attended in time with very ill consequences; as the method of proceeding therein is entirely in derogation of the common law; and their large discretionary powers create a petty tyranny in a set of standing commissioners; and as the disuse of the trial by jury may tend to estrange the minds of the people from that valuable prerogative of Englishmen, which has already been more than sufficiently excluded in many instances. How much rather is it to be wished that the proceedings in the county and hundred courts could be again [83] revived, without burdening the freeholders with too frequent and tedious attendances; and at the same time removing the delays that have insensibly crept into their proceedings, and the power that either party has of transferring at pleasure their suits to the courts at Westminster! And we may, with satisfaction, observe, that this experiment has been actually tried, and has succeeded in the populous county of Middlesex, which might serve as an example for others. For by statute 23 Geo. II., ch. 33, it is enacted:

1. That a special county court shall be held at least once in a month, in every hundred of the county of Middlesex, by the county clerk.

2. That twelve freeholders of that hundred, qualified to serve on juries, and struck by the sheriff, shall be summoned to appear at such court by rotation; so as none shall be summoned oftener than once a year.

3. That in all causes not exceeding the value of forty shillings, the county clerk and twelve suitors (jurors) shall proceed in a summary way, examining the parties and witnesses on oath, without the formal process anciently used; and shall make such order therein as they shall judge agreeable to conscience.”

—3 Blackstone, 81-83.

What are these but courts of conscience? And yet Blackstone tells us they are a revival of the ancient hundred and county courts. And what does this fact prove, but that the ancient common law courts, in which juries sat, were mere courts of conscience?

It is perfectly evident that in all these courts the jurors were the judges, and determined all questions of law for themselves; because the only alternative to that supposition is, that the jurors took their law from sheriffs, bailiffs, and stewards, of which there is not the least evidence in history, nor the least probability in reason. It is evident, also, that they judged independently of the laws of the king, for the reasons before given, viz., that the authority of the king was held in very little esteem; and, secondly, that the laws of the king (not being printed, and the people being unable to read them if they had been printed) must have been in a great measure unknown to them, and could have been received by them only on the authority of the sheriff, bailiff, or steward. If laws were to be received by them on the authority of these officers, [84] the latter would have imposed such laws upon the people as they pleased.

These courts, that have now been described, were continued in full power long after Magna Carta, no alteration being made in them by that instrument, nor in the mode of administering justice in them.

There is no evidence whatever, so far as I am aware, that the juries had any less power in the courts held by the king’s justices, than in those held by sheriffs, bailiffs, and stewards; and there is no probability whatever that they had. All the difference between the former courts and the latter undoubtedly was, that, in the former, the juries had the benefit of the advice and assistance of the justices, which would, of course, be considered valuable in difficult cases, on account of the justices being regarded as more learned, not only in the laws of the king, but also in the common law, or “law of the land.”

The conclusion, therefore, I think, inevitably must be, that neither the laws of the king, nor the instructions of his justices, had any authority over jurors beyond what the latter saw fit to accord to them. And this view is confirmed by this remark of Hallam, the truth of which all will acknowledge:

“The rules of legal decision, among a rude people, are always very simple; not serving much to guide, far less to control the feelings of natural equity.”

—2 Middle Ages, ch. 8, part 2, p. 465.

It is evident that it was in this way, by the free and concurrent judgments of juries, approving and enforcing certain laws and rules of conduct, corresponding to their notions of right and justice, that the laws and customs, which, for the most part, made up the common law, and were called, at that day, “the good laws, and good customs,” and “the law of the land,” were established. How otherwise could they ever have become established, as Blackstone says they were, “by long and immemorial usage, and by their universal reception throughout the kingdom,”* when, as the Mirror says, “justice was so done, that every one so judged his neighbor, by such judgment as a man could not elsewhere receive in the like cases, until such [85] times as the customs of the realm were put in writing and certainly published?”

The fact that, in that dark age, so many of the principles of natural equity, as those then embraced in the Common Law, should have been so uniformly recognized and enforced by juries, as to have become established by general consent as “the law of the land;” and the further fact that this “law of the land” was held so sacred that even the king could not lawfully infringe or alter it, but was required to swear to maintain it, are beautiful and impressive illustrations of the truth that men’s minds, even in the comparative infancy of other knowledge, have clear and coincident ideas of the elementary principles, and the paramount obligation, of justice. The same facts also prove that the common mind, and the general, or, perhaps, rather, the universal conscience, as developed in the untrammelled judgments of juries, may be safely relied upon for the preservation of individual rights in civil society; and that there is no necessity or excuse for that deluge of arbitrary legislation, with which the present age is overwhelmed, under the pretext that unless laws be made, the law will not be known; a pretext, by the way, almost universally used for overturning, instead of establishing, the principles of justice.

SECTION III.: The Oaths of Jurors.

The oaths that have been administered to jurors, in England, and which are their legal guide to their duty, all (so far as I have ascertained them) corroborate the idea that the jurors are to try all cases on their intrinsic merits, independently of any laws that they deem unjust or oppressive. It is probable that an oath was never administered to a jury in England, either in a civil or criminal case, to try it according to law.

The earliest oath that I have found prescribed by law to be administered to jurors is in the laws of Ethelred, (about the year 1015,) which require that the jurors “shall swear, with their hands upon a holy thing, that they will condemn no man [86] that is innocent, nor acquit any that is guilty.”—4 Blackstone, 302. 2 Turner’s History of the Anglo-Saxons, 155. Wilkins’ Laws of the Anglo-Saxons, 117. Spelman’s Glossary, word Jurata.

Blackstone assumes that this was the oath of the grand jury (4 Blackstone, 302); but there was but one jury at the time this oath was ordained. The institution of two juries, grand and petit, took place after the Norman Conquest.

Hume, speaking of the administration of justice in the time of Alfred, says that, in every hundred,

“Twelve freeholders were chosen, who, having sworn, together with the hundreder, or presiding magistrate of that division, to administer impartial justice, proceeded to the examination of that cause which was submitted to their jurisdiction.”

—Hume, ch. 2.

By a law of Henry II., in 1164, it was directed that the sheriff “faciet jurare duodecim legales homines de vicineto seu de villa, quod inde veritatem secundum conscientiam suam manifestabunt,” (shall make twelve legal men from the neighborhood to swear that they will make known the truth according to their conscience.)

—Crabbe’s History of the English Law, 119. 1 Reeves, 87. Wilkins, 321-323.

Glanville, who wrote within the half century previous to Magna Carta, says:

“Each of the knights summoned for this purpose (as jurors) ought to swear that he will neither utter that which is false, nor knowingly conceal the truth.”

—Beames’ Glanville, 65.

Reeve calls the trial by jury “the trial by twelve men sworn to speak the truth.”

—1 Reeve’s History of the English Law, 87.

Henry says that the jurors “took a solemn oath, that they would faithfully discharge the duties of their office, and not suffer an innocent man to be condemned, nor any guilty person to be acquitted.”

—3 Henry’s Hist. of Great Britain, 346.

The Mirror of Justices, (written within a century after Magna Carta,) in the chapter on the abuses of the Common Law, says:

“It is abuse to use the words, to their knowledge, in their oaths, to make the jurors speak upon thoughts, since the chief words of their oaths be that they speak the truth.”

—p. 249.

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Smith, writing in the time of Elizabeth, says that, in civil suits, the jury “be sworn to declare the truth of that issue according to the evidence, and their conscience.”

—Smith’s Commonwealth of England, edition of 1621, p. 73.

In criminal trials, he says:

“The clerk giveth the juror an oath to go uprightly betwixt the prince and the prisoner.”

—Ditto, p. 90.*

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Hale says:

“Then twelve, and no less, of such as are indifferent and are returned upon the principal panel, or the tales, are sworn to try the same according to the evidence.”

—2 Hale’s History of the Common Law, 141.

It appears from Blackstone that, even at this day, neither in civil nor criminal cases, are jurors in England sworn to try causes according to law. He says that in civil suits the jury are.

“Sworn well and truly to try the issue between the parties, and a true verdict to give according to the evidence.”

—3 Blackstone, 365.

“The issue” to be tried is whether A owes B anything; and if so, how much? or whether A has in his possession anything that belongs to B; or whether A has wronged B, and ought to make compensation; and if so, how much?

No statute passed by a legislature, simply as a legislature, can alter either of these “issues” in hardly any conceivable case, perhaps in none. No unjust law could ever alter them in any. They are all mere questions of natural justice, which legislatures have no power to alter, and with which they have no right to interfere, further than to provide for having them settled by the most competent and impartial tribunal that it is practicable to have, and then for having all just decisions enforced. And any tribunal, whether judge or jury, that attempts to try these issues, has no more moral right to be swerved from the line of justice, by the will of a legislature, than by the will of any other body of men whatever. And this oath does not require or permit a jury to be so swerved.

In criminal cases, Blackstone says the oath of the jury in England is:

“Well and truly to try, and true deliverance make, between our sovereign lord, the king, and the prisoner whom they have in charge, and a true verdict to give according to the evidence.”

—4 Blackstone, 355.

“The issue” to be tried, in a criminal case, is “guilty,” or “not guilty.” The laws passed by a legislature can rarely, if ever, have anything to do with this issue. “Guilt” is an [89] intrinsic quality of actions, and can neither be created, destroyed, nor changed by legislation. And no tribunal that attempts to try this issue can have any moral right to declare a man guilty, for an act that is intrinsically innocent, at the bidding of a legislature, any more than at the bidding of anybody else. And this oath does not require or permit a jury to do so.

The words, “according to the evidence,” have doubtless been introduced into the above oaths in modern times. They are unquestionably in violation of the Common Law, and of Magna Carta, if by them be meant such evidence only as the government sees fit to allow to go to the jury. If the government can dictate the evidence, and require the jury to decide according to that evidence, it necessarily dictates the conclusion to which they must arrive. In that case the trial is really a trial by the government, and not by the jury. The jury cannot try an issue, unless they determine what evidence shall be admitted. The ancient oaths, it will be observed, say nothing about “according to the evidence.” They obviously take it for granted that the jury try the whole case; and of course that they decide what evidence shall be admitted. It would be intrinsically an immoral and criminal act for a jury to declare a man guilty, or to declare that one man owed money to another, unless all the evidence were admitted, which they thought ought to be admitted, for ascertaining the truth.*

Grand Jury.—If jurors are bound to enforce all laws passed by the legislature, it is a very remarkable fact that the oath of grand juries does not require them to be governed by the laws in finding indictments. There have been various forms of oath administered to grand jurors; but by none of them that I recollect ever to have seen, except those of the States [90] of Connecticut and Vermont, are they sworn to present men according to law. The English form, as given in the essay on Grand Juries, written near two hundred years ago, and supposed to have been written by Lord Somers, is as follows:

“You shall diligently inquire, and true presentment make, of all such articles, matters, and things, as shall be given you in charge, and of all other matters and things as shall come to your knowledge touching this present service. The king’s council, your fellows, and your own, you shall keep secret. You shall present no person for hatred or malice; neither shall you leave any one unpresented for favor, or affection, for love or gain, or any hopes thereof; but in all things you shall present the truth, the whole truth, and nothing but the truth, to the best of your knowledge. So help you God.”

This form of oath is doubtless quite ancient, for the essay says “our ancestors appointed” it.—See Essay, p. 33-34.

On the obligations of this oath, the essay says:

“If it be asked how, or in what manner, the (grand) juries shall inquire, the answer is ready, according to the best of their understandings. They only, not the judges, are sworn to search diligently to find out all treasons, &c., within their charge, and they must and ought to use their own discretion in the way and manner of their inquiry. No directions can legally be imposed upon them by any court or judges; an honest jury will thankfully accept good advice from judges, as their assistants; but they are bound by their oaths to present the truth, the whole truth, and nothing but the truth, to the best of their own, not the judge’s, knowledge. Neither can they, without breach of that oath, resign their consciences, or blindly submit to the dictates of others; and therefore ought to receive or reject such advices, as they judge them good or bad. * * Nothing can be more plain and express than the words of the oath are to this purpose. The jurors need not search the law books, nor tumble over heaps of old records, for the explanation of them. Our greatest lawyers may from hence learn more certainly our ancient law in this case, than from all the books in their studies. The language wherein the oath is penned is known and understood by every man, and the words in it have the same signification as they have wheresoever else they are used. The judges, without assuming to themselves a legislative power, cannot put a new sense upon them, other than according to their genuine, common meaning. They cannot magisterially impose their opinions upon the jury, and make them forsake the direct [91] words of their oath, to pursue their glosses. The grand inquest are bound to observe alike strictly every part of their oath, and to use all just and proper ways which may enable them to perform it; otherwise it were to say, that after men had sworn to inquire diligently after the truth, according to the best of their knowledge, they were bound to forsake all the natural and proper means which their understandings suggest for the discovery of it, if it be commanded by the judges.”

—Lord Somers’ Essay on Grand Juries, p. 38.

What is here said so plainly and forcibly of the oath and obligations of grand juries, is equally applicable to the oath and obligations of petit juries. In both cases the simple oaths of the jurors, and not the instructions of the judges, nor the statutes of kings nor legislatures, are their legal guides to their duties.*

SECTION IV.: The Right of Juries to fix the Sentence.

The nature of the common law courts existing prior to Magna Carta, such as the county courts, the hundred courts, the court-leet, and the court-baron, all prove, what has already been proved from Magna Carta, that, in jury trials, the juries fixed the sentence; because, in those courts, there was no one but the jury who could fix it, unless it were the sheriff, bailiff, or steward; and no one will pretend that it was fixed by them. The juries unquestionably gave the “judgment” in both civil and criminal cases.

That the juries were to fix the sentence under Magna Carta, is also shown by statutes subsequent to Magna Carta.

A statute passed fifty-one years after Magna Carta, says that a baker, for default in the weight of his bread, “debeat amerciari vel subire judicium pilloræ,”—that is, “ought to be amerced, or suffer the sentence of the pillory.” And that a brewer, for “selling ale, contrary to the assize,” “debeat amerciari, vel pati judicium tumbrelli;” that is, “ought to be [92] amerced, or suffer judgment of the tumbrel.”—51 Henry III., st. 6. (1266.)

If the king (the legislative power) had had authority to fix the punishments of these offences imperatively, he would naturally have said these offenders shall be amerced, and shall suffer judgment of the pillory and tumbrel, instead of thus simply expressing the opinion that they ought to be punished in that manner.

The statute of Westminster, passed sixty years after Magna Carta, provides that,

“No city, borough, nor town, nor any man, be amerced, without reasonable cause, and according to the quantity of the trespass; that is to say, every freeman saving his freehold, a merchant saving his merchandise, a villein his waynage, and that by his or their peers.”

—3 Edward I., ch. 6. (1275.)

The same statute (ch. 18) provides further, that,

“Forasmuch as the common fine and amercement of the whole county in Eyre of the justices for false judgments, or for other trespass, is unjustly assessed by sheriffs and baretors in the shires, so that the sum is many times increased, and the parcels otherwise assessed than they ought to be, to the damage of the people, which be many times paid to the sheriffs and baretors, which do not acquit the payers; it is provided, and the king wills, that from henceforth such sums shall be assessed before the justices in Eyre, afore their departure, by the oath of knights and other honest men, upon all such as ought to pay; and the justices shall cause the parcels to be put into their estreats, which shall be delivered up unto the exchequer, and not the whole sum.”

—St. 3 Edward I., ch. 18, (1275.)*

The following statute, passed in 1341, one hundred and twenty-five years after Magna Carta, providing for the trial of peers of the realm, and the king’s ministers, contains a recognition [93] of the principle of Magna Carta, that the jury are to fix the sentence.

“Whereas before this time the peers of the land have been arrested and imprisoned, and their temporalities, lands, and tenements, goods and cattels, asseized in the king’s hands, and some put to death without judgment of their peers: It is accorded and assented, that no peer of the land, officer, nor other, because of his office, nor of things touching his office, nor by other cause, shall be brought in judgment to lose his temporalities, lands, tenements, goods and cattels, nor to be arrested, nor imprisoned, outlawed, exiled, nor forejudged, nor put to answer, nor be judged, but by award (sentence) of the said peers in Parliament.”

—15 Edward III., st. 1, sec. 2.

Section 4, of the same statute provides,

“That in every Parliament, at the third day of every Parliament, the king shall take in his hands the offices of all the ministers aforesaid,” (that is, “the chancellor, treasurer, barons, and chancellor of the exchequer, the justices of the one bench and of the other, justices assigned in the country, steward and chamberlain of the king’s house, keeper of the privy seal, treasurer of the wardrobe, controllers, and they that be chief deputed to abide nigh the king’s son, Duke of Cornwall,”) “and so they shall abide four or five days; except the offices of justices of the one place or the other, justices assigned, barons of exchequer; so always that they and all other ministers be put to answer to every complaint; and if default be found in any of the said ministers, by complaint or other manner, and of that attainted in Parliament, he shall be punished by judgment of the peers, and put out of his office, and another convenient put in his place. And upon the same our said sovereign lord the king shall do (cause) to be pronounced and made execution without delay, according to the judgment (sentence) of the said peers in the Parliament.”

Here is an admission that the peers were to fix the sentence, or judgment, and the king promises to make execution “according to” that sentence.

And this appears to be the law, under which peers of the realm and the great officers of the crown were tried and sentenced, for four hundred years after its passage, and, for aught I know, until this day.

The first case given in Hargrave’s collection of English State Trials, is that of Alexander Nevil, Archbishop of York, [94] Robert Vere, Duke of Ireland, Michael de la Pole, Earl of Suffolk, and Robert Tresilian, Lord Chief Justice of England, with several others, convicted of treason, before “the Lords of Parliament,” in 1388. The sentences in these cases were adjudged by the “Lords of Parliament,” in the following terms, as they are reported.

“Wherefore the said Lords of Parliament, there present, as judges in Parliament, in this case, by assent of the king, pronounced their sentence, and did adjudge the said archbishop, duke, and earl, with Robert Tresilian, so appealed, as aforesaid, to be guilty, and convicted of treason, and to be drawn and hanged, as traitors and enemies to the king and kingdom; and that their heirs should be disinherited forever, and their lands and tenements, goods and chattels, forfeited to the king, and that the temporalities of the Archbishop of York should be taken into the king’s hands.”

Also, in the same case, Sir John Holt, Sir William Burgh, Sir John Cary, Sir Roger Fulthorpe, and John Locton, “were by the lords temporal, by the assent of the king, adjudged to be drawn and hanged, as traitors, their heirs disinherited, and their lands and tenements, goods and chattels, to be forfeited to the king.”

Also, in the same case, John Blake, “of council for the king,” and Thomas Uske, under sheriff of Middlesex, having been convicted of treason,

“The lords awarded, by assent of the king, that they should both be hanged and drawn as traitors, as open enemies to the king and kingdom, and their heirs disinherited forever, and their lands and tenements, goods and chattels, forfeited to the king.”

Also, “Simon Burleigh, the king’s chamberlain,” being convicted of treason, “by joint consent of the king and the lords, sentence was pronounced against the said Simon Burleigh, that he should be drawn from the town to Tyburn, and there be hanged till he be dead, and then have his head struck from his body.”

Also, “John Beauchamp, steward of the household to the king, James Beroverse, and John Salisbury, knights, gentlemen of the privy chamber, were in like manner condemned.”

—1 Hargrave’s State Trials, first case.

Here the sentences were all fixed by the peers, with the assent of the king. But that the king should be consulted, and his assent obtained to the sentence pronounced by the peers, [95] does not imply any deficiency of power on their part to fix the sentence independently of the king. There are obvious reasons why they might choose to consult the king, and obtain his approbation of the sentence they were about to impose, without supposing any legal necessity for their so doing.

So far as we can gather from the reports of state trials, peers of the realm were usually sentenced by those who tried them, with the assent of the king. But in some instances no mention is made of the assent of the king, as in the case of “Lionel, Earl of Middlesex, Lord High Treasurer of England,” in 1624, (four hundred years after Magna Carta,) where the sentence was as follows:

“This High Court of Parliament doth adjudge, that Lionel, Earl of Middlesex, now Lord Treasurer of England, shall lose all his offices which he holds in this kingdom, and shall, hereafter, be made incapable of any office, place, or employment in the state and commonwealth. That he shall be imprisoned in the tower of London, during the king’s pleasure. That he shall pay unto our sovereign lord the king a fine of 50,000 pounds. That he shall never sit in Parliament any more, and that he shall never come within the verge of the court.”

—2 Howell’s State Trials, 1250.

Here was a peer of the realm, and a minister of the king, of the highest grade; and if it were ever necessary to obtain the assent of the king to sentences pronounced by the peers, it would unquestionably have been obtained in this instance, and his assent would have appeared in the sentence.

Lord Bacon was sentenced by the House of Lords, (1620,) no mention being made of the assent of the king. The sentence is in these words:

“And, therefore, this High Court doth adjudge, That the Lord Viscount St. Albans, Lord Chancellor of England, shall undergo fine and ransom of 40,000 pounds. That he shall be imprisoned in the tower during the king’s pleasure. That he shall forever be incapable of any office, place, or employment in the state or commonwealth. That he shall never sit in Parliament, nor come within the verge of the court.”

And when it was demanded of him, before sentence, whether it were his hand that was subscribed to his confession, and [96] whether he would stand to it; he made the following answer, which implies that the lords were the ones to determine his sentence.

“My lords, it is my act, my hand, my heart. I beseech your lordships to be merciful to a broken reed.”

—1 Hargrave’s State Trials, 386-7.

The sentence against Charles the First, (1648,) after reciting the grounds of his condemnation, concludes in this form:

“For all which treasons and crimes, this court doth adjudge, that he, the said Charles Stuart, as a tyrant, traitor, murderer, and public enemy to the good people of this nation, shall be put to death by the severing his head from his body.”

The report then adds:

“This sentence being read, the president (of the court) spake as followeth: ‘This sentence now read and published, is the act, sentence, judgment and resolution of the whole court.’ ”

—1 Hargrave’s State Trials, 1037.

Unless it had been the received “law of the land” that those who tried a man should fix his sentence, it would have required an act of Parliament to fix the sentence of Charles, and his sentence would have been declared to be “the sentence of the law,” instead of “the act, sentence, judgment, and resolution of the court.”

But the report of the proceedings in “the trial of Thomas, Earl of Macclesfield, Lord High Chancellor of Great Britain, before the House of Lords, for high crimes and misdemeanors in the execution of his office,” in 1725, is so full on this point, and shows so clearly that it rested wholly with the lords to fix the sentence, and that the assent of the king was wholly unnecessary, that I give the report somewhat at length.

After being found guilty, the earl addressed the lords, for a mitigation of sentence, as follows:

“ ‘I am now to expect your lordships’ judgment; and I hope that you will be pleased to consider that I have suffered no small matter already in the trial, in the expense I have been at, the fatigue, and what I have suffered otherways. * * I have paid back 10,800 pounds of the money already; I have lost my office; I have undergone the censure of both houses of Parliament, which is in itself a severe punishment,’ ” &c., &c.

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On being interrupted, he proceeded:

“ ‘My lords, I submit whether this be not proper in mitigation of your lordships’ sentence; but whether it be or not, I leave myself to your lordships’ justice and mercy; I am sure neither of them will be wanting, and I entirely submit.’ * *

“Then the said earl, as also the managers, were directed to withdraw; and the House (of Lords) ordered Thomas, Earl of Macclesfield, to be committed to the custody of the gentleman usher of the black rod; and then proceeded to the consideration of what judgment,” (that is, sentence, for he had already been found guilty,) “to give upon the impeachment against the said earl.” * *

“The next day, the Commons, with their speaker, being present at the bar of the House (of Lords), * * the speaker of the House of Commons said as follows:

“ ‘My Lords, the knights, citizens, and burgesses in Parliament assembled, in the name of themselves, and of all the commons of Great Britain, did at this bar impeach Thomas, Earl of Macclesfield, of high crimes and misdemeanors, and did exhibit articles of impeachment against him, and have made good their charge. I do, therefore, in the name of the knights, citizens, and burgesses, in Parliament assembled, and of all the commons of Great Britain, demand judgment (sentence) of your lordships against Thomas, Earl of Macclesfield, for the said high crimes and misdemeanors.’

“Then the Lord Chief Justice King, Speaker of the House of Lords, said: ‘Mr. Speaker, the Lords are now ready to proceed to judgment in the case by you mentioned.

“ ‘Thomas, Earl of Macclesfield, the Lords have unanimously found you guilty of high crimes and misdemeanors, charged on you by the impeachment of the House of Commons, and do now, according to law, proceed to judgment against you, which I am ordered to pronounce. Their lordships’ judgment is, and this high court doth adjudge, that you, Thomas, Earl of Macclesfield, be fined in the sum of thirty thousand pounds unto our sovereign lord the king; and that you shall be imprisoned in the tower of London, and there kept in safe custody, until you shall pay the said fine.’ ”

—6 Hargrave’s State Trials, 762-3-4.

This case shows that the principle of Magna Carta, that a man should be sentenced only by his peers, was in force, and acted upon as law, in England, so lately as 1725, (five hundred years after Magna Carta,) so far as it applied to a peer of the realm.

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But the same principle, on this point, that applies to a peer of the realm, applies to every freeman. The only difference between the two is, that the peers of the realm have had influence enough to preserve their constitutional rights; while the constitutional rights of the people have been trampled upon and rendered obsolete by the usurpation and corruption of the government and the courts.

SECTION V.: The Oaths of Judges.

As further proof that the legislation of the king, whether enacted with or without the assent and advice of his parliaments, was of no authority unless it were consistent with the common law, and unless juries and judges saw fit to enforce it, it may be mentioned that it is probable that no judge in England was ever sworn to observe the laws enacted either by the king alone, or by the king with the advice and assent of parliament.

The judges were sworn to “do equal law, and execution of right, to all the king’s subjects, rich and poor, without having regard to any person;” and that they will “deny no man common right;”* but they were not sworn to obey or execute any statutes of the king, or of the king and parliament. Indeed, they are virtually sworn not to obey any statutes that are against “common right,” or contrary to “the common law,” or “law of the land;” but to “certify the king thereof”—that is, notify him that his statutes are against the common law;—and then proceed to execute the common law, notwithstanding such legislation to the contrary. The words of the oath on this point are these:

“That ye deny no man common right by (virtue of) the king’s letters, nor none other man’s, nor for none other cause; and in case any letters come to you contrary to the law, (that is, the common law, as will be seen on reference to the entire oath given in the note,) that ye do nothing by such letters, but [99] certify the king thereof, and proceed to execute the law, (that is, the common law,) notwithstanding the same letters.”

When it is considered that the king was the sole legislative power, and that he exercised this power, to a great extent, by orders in council, and by writs and “letters” addressed oftentimes to some sheriff, or other person, and that his commands, when communicated to his justices, or any other person, “by letters,” or writs, under seal, had as much legal authority as laws promulgated in any other form whatever, it will be seen that this oath of the justices absolutely required that they disregard any legislation that was contrary to “common right,” or “the common law,” and notify the king that it was contrary to common right, or the common law, and then proceed to execute the common law, notwithstanding such legislation.*

If there could be any doubt that such was the meaning of this oath, that doubt would be removed by a statute passed by the king two years afterwards, which fully explains this oath, as follows:

“Edward, by the Grace of God, &c., to the Sheriff of Stafford, greeting: Because that by divers complaints made to us, we have perceived that the Law of the Land, which we by our oath are bound to maintain, is the less well kept, and the execution of the same disturbed many times by maintenance and procurement, as well in the court as in the country; we [100] greatly moved of conscience in this matter, and for this cause desiring as much for the pleasure of God, and ease and quietness of our subjects, as to save our conscience, and for to save and keep our said oath, by the assent of the great men and other wise men of our council, we have ordained these things following:

“First, we have commanded all our justices, that they shall from henceforth do equal law and execution of right to all our subjects, rich and poor, without having regard to any person, and without omitting to do right for any letters or commandment which may come to them from us, or from any other, or by any other cause. And if that any letters, writs, or commandments come to the justices, or to other deputed to do law and right according to the usage of the realm, in disturbance of the law, or of the execution of the same, or of right to the parties, the justices and other aforesaid shall proceed and hold their courts and processes, where the pleas and matters be depending before them, as if no such letters, writs, or commandments were come to them; and they shall certify us and our council of such commandments which be contrary to the law, (that is, “the law of the land,” or common law,) as afore is said.”* And to the intent that our justices shall do even right to all people in the manner aforesaid, without more favor showing to one than to another, we have ordained and caused our said justices to be sworn, that they shall not from henceforth, as long as they shall be in the office of justice, take fee nor robe of any man, but of ourself, and that they shall take no gift nor reward by themselves, nor by other, privily nor [101] apertly, of any man that hath to do before them by any way, except meat and drink, and that of small value; and that they shall give no counsel to great men or small, in case where we be party, or which do or may touch us in any point, upon pain to be at our will, body, lands, and goods, to do thereof as shall please us, in case they do contrary. And for this cause we have increased the fees of the same, our justices, in such manner as it ought reasonably to suffice them.”

—20 Edward III., ch. 1. (1346.)

Other statutes of similar tenor have been enacted, as follows:

“It is accorded and established, that it shall not be commanded by the great seal, nor the little seal, to disturb or delay common right; and though such commandments do come, the justices shall not therefore leave (omit) to do right in any point.”

—St. 2 Edward III., ch. 8. (1328.)

“That by commandment of the great seal, or privy seal, no point of this statute shall be put in delay; nor that the justices of whatsoever place it be shall let (omit) to do the common law, by commandment, which shall come to them under the great seal, or the privy seal.”

—14 Edward III., st. 1, ch. 14. (1340.)

“It is ordained and established, that neither letters of the signet, nor of the king’s privy seal, shall be from henceforth sent in damage or prejudice of the realm, nor in disturbance of the law” (the common law).

—11 Richard II., ch. 10. (1387.)

It is perfectly apparent from these statutes, and from the oath administered to the justices, that it was a matter freely confessed by the king himself, that his statutes were of no validity, if contrary to the common law, or “common right.”

The oath of the justices, before given, is, I presume, the same that has been administered to judges in England from the day when it was first prescribed to them, (1344,) until now. I do not find from the English statutes that the oath has ever been changed. The Essay on Grand Juries, before referred to, and supposed to have been written by Lord Somers, mentions this oath (page 73) as being still administered to judges, that is, in the time of Charles II., more than three hundred years after the oath was first ordained. If the oath has never been changed, it follows that judges have not only never been sworn to support any statutes whatever of [102] the king, or of parliament, but that, for five hundred years past, they actually have been sworn to treat as invalid all statutes that were contrary to the common law.

SECTION VI.

The Coronation Oath.

That the legislation of the king was of no authority over a jury, is further proved by the oath taken by the kings at their coronation. This oath seems to have been substantially the same, from the time of the Saxon kings, down to the seventeenth century, as will be seen from the authorities hereafter given.

The purport of the oath is, that the king swears to maintain the law of the land—that is, the common law. In other words, he swears “to concede and preserve to the English people the laws and customs conceded to them by the ancient, just, and pious English kings, * * and especially the laws, customs, and liberties conceded to the clergy and people by the illustrious king Edward;” * * and “the just laws and customs which the common people have chosen, (quas vulgus elegit).”

These are the same laws and customs which were called by the general name of “the law of the land,” or “the common law,” and, with some slight additions, were embodied in Magna Carta.

This oath not only forbids the king to enact any statutes contrary to the common law, but it proves that his statutes could be of no authority over the consciences of a jury; since, as has already been sufficiently shown, it was one part of this very common law itself,—that is, of the ancient “laws, customs, and liberties,” mentioned in the oath,—that juries should judge of all questions that came before them, according to their own consciences, independently of the legislation of the king.

It was impossible that this right of the jury could subsist consistently with any right, on the part of the king, to impose any authoritative legislation upon them. His oath, therefore, [103] to maintain the law of the land, or the ancient “laws, customs, and liberties,” was equivalent to an oath that he would never assume to impose laws upon juries, as imperative rules of decision, or take from them the right to try all cases according to their own consciences. It is also an admission that he had no constitutional power to do so, if he should ever desire it. This oath, then, is conclusive proof that his legislation was of no authority with a jury, and that they were under no obligation whatever to enforce it, unless it coincided with their own ideas of justice.

The ancient coronation oath is printed with the Statutes of the Realm, vol. i., p. 168, and is as follows:*

translation.

“Form of the Oath of the King of England, on his Coronation.

(The Archbishop of Canterbury, to whom, of right and custom of the Church of Canterbury, ancient and approved, it pertains to anoint and crown the kings of England, on the day of the coronation of the king, and before the king is crowned, shall propound the underwritten questions to the king.)

The laws and customs, conceded to the English people by the ancient, just, and pious English kings, will you concede and preserve to the same people, with the confirmation of an oath? and especially the laws, customs, and liberties conceded to the clergy and people by the illustrious king Edward?

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(And the king shall answer,) I do concede, and will preserve them, and confirm them by my oath.

Will you preserve to the church of God, the clergy, and the people, entire peace and harmony in God, according to your powers?

(And the king shall answer,) I will.

In all your judgments, will you cause equal and right justice and discretion to be done, in mercy and truth, according to your powers?

(And the king shall answer,) I will.

Do you concede that the just laws and customs, which the common people have chosen, shall be preserved; and do you promise that they shall be protected by you, and strengthened to the honor of God, according to your powers?

(And the king shall answer,) I concede and promise.”

The language used in the last of these questions, “Do you concede that the just laws and customs, which the common people have chosen, (quas vulgus elegit,) shall be preserved?” &c., is worthy of especial notice, as showing that the laws, which were to be preserved, were not necessarily all the laws which the kings enacted, but only such of them as the common people had selected or approved.

And how had the common people made known their approbation or selection of these laws? Plainly, in no other way than this—that the juries composed of the common people had voluntarily enforced them. The common people had no other legal form of making known their approbation of particular laws.

The word “concede,” too, is an important word. In the English statutes it is usually translated grant—as if with an intention to indicate that “the laws, customs, and liberties” of the English people were mere privileges, granted to them by the king; whereas it should be translated concede, to indicate simply an acknowledgment, on the part of the king, that such were the laws, customs, and liberties, which had been chosen and established by the people themselves, and of right belonged to them, and which he was bound to respect.

I will now give some authorities to show that the foregoing oath has, in substance, been the coronation oath from the times of William the Conqueror, (1066,) down to the time of James the First, and probably until 1688.

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It will be noticed, in the quotation from Kelham, that he says this oath (or the oath of William the Conqueror) is “in sense and substance the very same with that which the Saxon kings used to take at their coronations.”

Hale says:

“Yet the English were very zealous for them,” (that is, for the laws of Edward the Confessor,) “no less or otherwise than they are at this time for the Great Charter; insomuch that they were never satisfied till the said laws were reënforced, and mingled, for the most part, with the coronation oath of king William I., and some of his successors.”

—1 Hale’s History of Common Law, 157.

Also, “William, on his coronation, had sworn to govern by the laws of Edward the Confessor, some of which had been reduced into writing, but the greater part consisted of the immemorial customs of the realm.”

—Ditto, p. 202, note L.

Kelham says:

“Thus stood the laws of England at the entry of William I., and it seems plain that the laws, commonly called the laws of Edward the Confessor, were at that time the standing laws of the kingdom, and considered the great rule of their rights and liberties; and that the English were so zealous for them, ‘that they were never satisfied till the said laws were reënforced, and mingled, for the most part, with the coronation oath.’ Accordingly, we find that this great conqueror, at his coronation on the Christmas day succeeding his victory, took an oath at the altar of St. Peter, Westminster, in sense and substance the very same with that which the Saxon kings used to take at their coronations. * * And at Barkhamstead, in the fourth year of his reign, in the presence of Lanfranc, Archbishop of Canterbury, for the quieting of the people, he swore that he would inviolably observe the good and approved ancient laws which had been made by the devout and pious kings of England, his ancestors, and chiefly by King Edward; and we are told that the people then departed in good humor.”

—Kelham’s Preliminary Discourse to the Laws of William the Conqueror. See, also, 1 Hale’s History of the Common Law, 186.

Crabbe says that William the Conqueror “solemnly swore that he would observe the good and approved laws of Edward the Confessor.”

—Crabbe’s History of the English Law, p. 43.

The successors of William, up to the time of Magna Carta, [106] probably all took the same oath, according to the custom of the kingdom; although there may be no historical accounts extant of the oath of each separate king. But history tells us specially that Henry I., Stephen, and Henry II., confirmed these ancient laws and customs. It appears, also, that the barons desired of John (what he afterwards granted by Magna Carta) “that the laws and liberties of King Edward, with other privileges granted to the kingdom and church of England, might be confirmed, as they were contained in the charters of Henry the First; further alleging, that at the time of his absolution, he promised by his oath to observe these very laws and liberties.”—Echard’s History of England, p. 105-6.

It would appear, from the following authorities, that since Magna Carta the form of the coronation oath has been “to maintain the law of the land,”—meaning that law as embodied in Magna Carta. Or perhaps it is more probable that the ancient form has been still observed, but that, as its substance and purport were “to maintain the law of the land,” this latter form of expression has been used, in the instances here cited, from motives of brevity and convenience. This supposition is the more probable, from the fact that I find no statute prescribing a change in the form of the oath until 1688.

That Magna Carta was considered as embodying “the law of the land,” or “common law,” is shown by a statute passed by Edward I., wherein he “grants,” or concedes,

“That the Charter of Liberties and the Charter of the Forest * * shall be kept in every point, without breach, * * and that our justices, sheriffs, mayors, and other ministers, which, under us, have the laws of our land* to guide, shall allow the said charters pleaded before them in judgment, in all their points, that is, to wit, the Great Charter as the Common Law, and the Charter of the Forest for the wealth of the realm.

“And we will, that if any judgment be given from henceforth, contrary to the points of the charters aforesaid, by the justices, or by any other our ministers that hold plea before them against the points of the charters, it shall be undone, and holden for naught.”

—25 Edward I., ch. 1 and 2. (1297.)

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Blackstone also says:

“It is agreed by all our historians that the Great Charter of King John was, for the most part, compiled from the ancient customs of the realm, or the laws of Edward the Confessor; by which they usually mean the old common law which was established under our Saxon princes.”

—Blackstone’s Introduction to the Charters. See Blackstone’s Law Tracts, 289.

Crabbe says:

“It is admitted, on all hands, that it (Magna Carta) contains nothing but what was confirmatory of the common law, and the ancient usages of the realm, and is, properly speaking, only an enlargement of the charter of Henry I., and his successors.”

—Crabbe’s History of the English Law, p. 127.

That the coronation oath of the kings subsequent to Magna Carta was, in substance, if not in form, “to maintain this law of the land, or common law,” is shown by a statute of Edward Third, commencing as follows:

“Edward, by the Grace of God, &c., &c., to the Sheriff of Stafford, Greeting: Because that by divers complaints made to us, we have perceived that the law of the land, which we by oath are bound to maintain,” &c.—St. 20 Edward III. (1346.)

The following extract from Lord Somers’ tract on Grand Juries shows that the coronation oath continued the same as late as 1616, (four hundred years after Magna Carta.) He says:

“King James, in his speech to the judges, in the Star Chamber, Anno 1616, told them, ‘That he had, after many years, resolved to renew his oath, made at his coronation, concerning justice, and the promise therein contained for maintaining the law of the land.’ And, in the next page save one, says, ‘I was sworn to maintain the law of the land, and therefore had been perjured if I had broken it. God is my judge, I never intended it.’ ”

—Somers on Grand Juries, p. 82.

In 1688, the coronation oath was changed by act of Parliament, and the king was made to swear:

“To govern the people of this kingdom of England, and the dominions thereto belonging, according to the statutes in Parliament agreed on, and the laws and customs of the same.”

—St. 1 William and Mary, ch. 6. (1688.)

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The effect and legality of this oath will hereafter be considered. For the present it is sufficient to show, as has been already sufficiently done, that from the Saxon times until at least as lately as 1616, the coronation oath has been, in substance, to maintain the law of the land, or the common law, meaning thereby the ancient Saxon customs, as embodied in the laws of Alfred, of Edward the Confessor, and finally in Magna Carta.

It may here be repeated that this oath plainly proves that the statutes of the king were of no authority over juries, if inconsistent with their ideas of right; because it was one part of the common law that juries should try all causes according to their own consciences, any legislation of the king to the contrary notwithstanding.*

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CHAPTER IV.: THE RIGHTS AND DUTIES OF JURIES IN CIVIL SUITS.

The evidence already given in the preceding chapters proves that the rights and duties of jurors, in civil suits, were anciently the same as in criminal ones; that the laws of the king were of no obligation upon the consciences of the jurors, any further than the laws were seen by them to be just; that very few laws were enacted applicable to civil suits; that when a new law was enacted, the nature of it could have been known to the jurors only by report, and was very likely not to be known to them at all; that nearly all the law involved in civil suits was unwritten; that there was usually no one in attendance upon juries who could possibly enlighten them, unless it were sheriffs, stewards, and bailiffs, who were unquestionably too ignorant and untrustworthy to instruct them authoritatively; that the jurors must therefore necessarily have judged for themselves of the whole case; and that, as a general rule, they could judge of it by no law but the law of nature, or the principles of justice as they existed in their own minds.

The ancient oath of jurors in civil suits, viz., that “they would make known the truth according to their consciences,” implies that the jurors were above the authority of all legislation. The modern oath, in England, viz., that they “will well and truly try the issue between the parties, and a true verdict give, according to the evidence,” implies the same thing. If the laws of the king had been binding upon a jury, they would have been sworn to try the cases according to law, or according to the laws.

The ancient writs, in civil suits, as given in Glanville, (within the half century before Magna Carta,) to wit, “Summon twelve free and legal men, (or sometimes twelve knights,) to be in court, prepared upon their oaths to declare whether A [111] or B have the greater right to the land in question,” indicate that the jurors judged of the whole matter on their consciences only.

The language of Magna Carta, already discussed, establishes the same point; for, although some of the words, such as “outlawed,” and “exiled,” would apply only to criminal cases, nearly the whole chapter applies as well to civil as to criminal suits. For example, how could the payment of a debt ever be enforced against an unwilling debtor, if he could neither be “arrested, imprisoned, nor deprived of his freehold,” and if the king could neither “proceed against him, nor send any one against him, by force or arms”? Yet Magna Carta as much forbids that any of these things shall be done against a debtor, as against a criminal, except according to, or in execution of, “a judgment of his peers, or the law of the land,”—a provision which, it has been shown, gave the jury the free and absolute right to give or withhold “judgment” according to their consciences, irrespective of all legislation.

The following provisions, in the Magna Carta of John, illustrate the custom of referring the most important matters of a civil nature, even where the king was a party, to the determination of the peers, or of twelve men, acting by no rules but their own consciences. These examples at least show that there is nothing improbable or unnatural in the idea that juries should try all civil suits according to their own judgments, independently of all laws of the king.

Chap. 65. “If we have disseized or dispossessed the Welsh of any lands, liberties, or other things, without the legal judgment of their peers, they shall be immediately restored to them. And if any dispute arises upon this head, the matter shall be determined in the Marches,* by the judgment of their peers,” &c.

Chap. 68. “We shall treat with Alexander, king of Scots, concerning the restoring of his sisters, and hostages, and rights and liberties, in the same form and manner as we shall do to the rest of our barons of England; unless by the engagements, which his father William. late king of Scots, hath entered into with us, it ought to be otherwise; and this shall be left to the determination of his peers in our court.”

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Chap. 56. “All evil customs concerning forests, warrens, and foresters, warreners, sheriffs, and their officers, rivers and their keepers, shall forthwith be inquired into in each county, by twelve knights of the same shire, chosen by the most creditable persons in the same county, and upon oath; and within forty days after the said inquest, be utterly abolished, so as never to be restored.”

There is substantially the same reason why a jury ought to judge of the justice of laws, and hold all unjust laws invalid, in civil suits, as in criminal ones. That reason is the necessity of guarding against the tyranny of the government. Nearly the same oppressions can be practised in civil suits as in criminal ones. For example, individuals may be deprived of their liberty, and robbed of their property, by judgments rendered in civil suits, as well as in criminal ones. If the laws of the king were imperative upon a jury in civil suits, the king might enact laws giving one man’s property to another, or confiscating it to the king himself, and authorizing civil suits to obtain possession of it. Thus a man might be robbed of his property at the arbitrary pleasure of the king, In fact, all the property of the kingdom would be placed at the arbitrary disposal of the king, through the judgments of juries in civil suits, if the laws of the king were imperative upon a jury in such suits.*

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Furthermore, it would be absurd and inconsistent to make a jury paramount to legislation in criminal suits, and subordinate to it in civil suits; because an individual, by resisting the execution of a civil judgment, founded upon an unjust [114] law, could give rise to a criminal suit, in which the jury would be bound to hold the same law invalid. So that, if an unjust law were binding upon a jury in civil suits, a defendant, by resisting the execution of the judgment, could, in effect, convert the civil action into a criminal one, in which the jury would be paramount to the same legislation, to which, in the civil suit, they were subordinate. In other words, in the criminal suit, the jury would be obliged to justify the defendant in resisting a law, which, in the civil suit, they had said he was bound to submit to.

To make this point plain to the most common mind—suppose a law be enacted that the property of A shall be given to B. B brings a civil action to obtain possession of it. If the jury, in this civil suit, are bound to hold the law obligatory, they render a judgment in favor of B, that he be put in possession of the property; thereby declaring that A is bound to submit to a law depriving him of his property. But when the execution of that judgment comes to be attempted—that is, when the sheriff comes to take the property for the purpose of delivering it to B—A acting, as he has a natural right to do, in defence of his property, resists and kills the sheriff. He is thereupon indicted for murder. On this trial his plea is, that in killing the sheriff, he was simply exercising his natural right of defending his property against an unjust law. The jury, not being bound, in a criminal case, by the authority of an unjust law, judge the act on its merits, and acquit the defendant—thus declaring that he was not bound to submit to the same law which the jury, in the civil suit, had, by their judgment, declared that he was bound to submit to. Here is a contradiction between the two judgments. In the civil suit, the law is declared to be obligatory upon A; in the criminal suit, the same law is declared to be of no obligation.

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It would be a solecism and absurdity in government to allow such consequences as these. Besides, it would be practically impossible to maintain government on such principles; for no government could enforce its civil judgments, unless it could support them by criminal ones, in case of resistance. A jury must therefore be paramount to legislation in both civil and criminal cases, or in neither. If they are paramount in neither, they are no protection to liberty. If they are paramount in both, then all legislation goes only for what it may chance to be worth in the estimation of a jury.

Another reason why Magna Carta makes the discretion and consciences of juries paramount to all legislation in civil suits, is, that if legislation were binding upon a jury, the jurors—(by reason of their being unable to read, as jurors in those days were, and also by reason of many of the statutes being unwritten, or at least not so many copies written as that juries could be supplied with them)—would have been necessitated—at least in those courts in which the king’s justices sat—to take the word of those justices as to what the laws of the king really were. In other words, they would have been necessitated to take the law from the court, as jurors do now.

Now there were two reasons why, as we may rationally suppose, the people did not wish juries to take their law from the king’s judges. One was, that, at that day, the people probably had sense enough to see, (what we, at this day, have not sense enough to see, although we have the evidence of it every day before our eyes,) that those judges, being dependent upon the legislative power, (the king,) being appointed by it, paid by it, and removable by it at pleasure, would be mere tools of that power, and would hold all its legislation obligatory, whether it were just or unjust. This was one reason, doubtless, why Magna Carta made juries, in civil suits, paramount to all instructions of the king’s judges. The reason was precisely the same as that for making them paramount to all instructions of judges in criminal suits, viz., that the people did not choose to subject their rights of property, and all other rights involved in civil suits, to the operation of such laws as the king might please to enact. It was seen that to allow the king’s judges to dictate the law to the jury would be equivalent [116] to making the legislation of the king imperative upon the jury.

Another reason why the people did not wish juries, in civil suits, to take their law from the king’s judges, doubtless was, that, knowing the dependence of the judges upon the king, and knowing that the king would, of course, tolerate no judges who were not subservient to his will, they necessarily inferred that the king’s judges would be as corrupt, in the administration of justice, as was the king himself, or as he wished them to be. And how corrupt that was, may be inferred from the following historical facts.

Hume says:

“It appears that the ancient kings of England put themselves entirely upon the footing of the barbarous Eastern princes, whom no man must approach without a present, who sell all their good offices, and who intrude themselves into every business that they may have a pretence for extorting money. Even justice was avowedly bought and sold; the king’s court itself, though the supreme judicature of the kingdom, was open to none that brought not presents to the king; the bribes given for expedition, delay, suspension, and doubtless for the perversion of justice, were entered in the public registers of the royal revenue, and remain as monuments of the perpetual iniquity and tyranny of the times. The barons of the exchequer, for instance, the first nobility of the kingdom, were not ashamed to insert, as an article in their records, that the county of Norfolk paid a sum that they might be fairly dealt with; the borough of Yarmouth, that the king’s charters, which they have for their liberties, might not be violated; Richard, son of Gilbert, for the king’s helping him to recover his debt from the Jews; * * Serlo, son of Terlavaston, that he might be permitted to make his defence, in case he were accused of a certain homicide; Walter de Burton, for free law, if accused of wounding another; Robert de Essart, for having an inquest to find whether Roger, the butcher, and Wace and Humphrey, accused him of robbery and theft out of envy and ill-will, or not; William Buhurst, for having an inquest to find whether he were accused of the death of one Godwin, out of ill-will, or for just cause. I have selected these few instances from a great number of the like kind, which Madox had selected from a still greater number, preserved in the ancient rolls of the exchequer.

Sometimes a party litigant offered the king a certain portion, [117] a half, a third, a fourth, payable out of the debts which he, as the executor of justice, should assist in recovering. Theophania de Westland agreed to pay the half of two hundred and twelve marks, that she might recover that sum against James de Fughleston; Solomon, the Jew, engaged to pay one mark out of every seven that he should recover against Hugh de la Hose; Nicholas Morrel promised to pay sixty pounds, that the Earl of Flanders might be distrained to pay him three hundred and forty-three pounds, which the earl had taken from him; and these sixty pounds were to be paid out of the first money that Nicholas should recover from the earl.”

—Hume, Appendix 2.

“In the reign of Henry II., the best and most just of these (the Norman) princes, * * Peter, of Blois, a judicious and even elegant writer, of that age, gives a pathetic description of the venality of justice, and the oppressions of the poor, * * and he scruples not to complain to the king himself of these abuses. We may judge what the case would be under the government of worse princes.”

—Hume, Appendix 2.

Carte says:

“The crown exercised in those days an exorbitant and inconvenient power, ordering the justices of the king’s court, in suits about lands, to turn out, put, and keep in possession, which of the litigants they pleased; to send contradictory orders; and take large sums of money from each; to respite proceedings; to direct sentences; and the judges, acting by their commission, conceived themselves bound to observe such orders, to the great delay, interruption, and preventing of justice; at least, this was John’s practice.”

—Carte’s History of England, vol. 1, p. 832.

Hallam says:

“But of all the abuses that deformed the Anglo-Saxon government, none was so flagitious as the sale of judicial redress. The king, we are often told, is the fountain of justice; but in those ages it was one which gold alone could unseal. Men fined (paid fines) to have right done them; to sue in a certain court; to implead a certain person; to have restitution of land which they had recovered at law. From the sale of that justice which every citizen has a right to demand, it was an easy transition to withhold or deny it. Fines were received for the king’s help against the adverse suitor; that is, for perversion of justice, or for delay. Sometimes they were paid by opposite parties, and, of course, for opposite ends.”

—2 Middle Ages, 438.

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In allusion to the provision of Magna Carta on this subject, Hallam says:

“A law which enacts that justice shall neither be sold, denied, nor delayed, stamps with infamy that government under which it had become necessary.”

—2 Middle Ages, 451.

Lingard, speaking of the times of Henry II., (say 1184,) says:

“It was universally understood that money possessed greater influence than justice in the royal courts, and instances are on record, in which one party has made the king a present to accelerate, and the other by a more valuable offer has succeeded in retarding a decision. * * But besides the fines paid to the sovereigns, the judges often exacted presents for themselves, and loud complaints existed against their venality and injustice.”

—2 Lingard, 231.

In the narrative of “The costs and charges which I, Richard de Anesty, bestowed in recovering the land of William, my uncle,” (some fifty years before Magna Carta,) are the following items:

“To Ralph, the king’s physician, I gave thirty-six marks and one half; to the king an hundred marks; and to the queen one mark of gold.” The result is thus stated. “At last, thanks to our lord the king, and by judgment of his court, my uncle’s land was adjudged to me.”

—2 Palgrave’s Rise and Progress of the English Commonwealth, p. 9 and 24.

Palgrave also says:

“The precious ore was cast into the scales of justice, even when held by the most conscientious of our Anglo-Saxon kings. A single case will exemplify the practices which prevailed. Alfric, the heir of ‘Aylwin, the black,’ seeks to set aside the death-bed bequest, by which his kinsman bestowed four rich and fertile manors upon St. Benedict. Alfric, the claimant, was supported by extensive and powerful connexions; and Abbot Alfwine, the defendant, was well aware that there would be danger in the discussion of the dispute in public, or before the Folkmoot, (people’s meeting, or county court); or, in other words, that the Thanes of the shire would do their best to give a judgment in favor of their compeer. The plea being removed into the Royal Court, the abbot acted with that prudence which so often calls forth the praises of the monastic scribe. He gladly emptied twenty marks of gold into the sleeve of the Confessor, (Edward,) and five marks of gold presented to Edith, the Fair, encouraged her to aid the [119] bishop, and to exercise her gentle influence in his favor. Alfric, with equal wisdom, withdrew from prosecuting the hopeless cause, in which his opponent might possess an advocate in the royal judge, and a friend in the king’s consort. Both parties, therefore, found it desirable to come to an agreement.”

—1 Palgrave’s Rise and Progress, &c., p. 650.

But Magna Carta has another provision for the trial of civil suits, that obviously had its origin in the corruption of the king’s judges. The provision is, that four knights, to be chosen in every county, by the people of the county, shall sit with the king’s judges, in the Common Pleas, in jury trials, (assizes,) on the trial of three certain kinds of suits, that were among the most important that were tried at all. The reason for this provision undoubtedly was, that the corruption and subserviency of the king’s judges were so well known, that the people would not even trust them to sit alone in a jury trial of any considerable importance. The provision is this:

Chap. 22, (of John’s Charter.) “Common Pleas shall not follow our court, but shall be holden in some certain place. Trials upon the writ of novel disseisin, and of Mort d’Ancester, and of Darrein Presentment, shall be taken but in their proper counties, and after this manner: We, or, if we should be out of our realm, our chief justiciary, shall send two justiciaries through every county four times a year;* who, with four knights chosen out of every shire, by the people, shall hold the assizes (juries) in the county, on the day and at the place appointed.”

It would be very unreasonable to suppose that the king’s judges were allowed to dictate the law to the juries, when the people would not even suffer them to sit alone in jury trials, but themselves chose four men to sit with them, to keep them honest.†

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This practice of sending the king’s judges into the counties to preside at jury trials, was introduced by the Norman kings. Under the Saxons it was not so. No officer of the king was allowed to preside at a jury trial; but only magistrates chosen by the people.*

But the following chapter of John’s charter, which immediately succeeds the one just quoted, and refers to the same suits, affords very strong, not to say conclusive, proof, that juries judged of the law in civil suits—that is, made the law, so far as their deciding according to their own notions of justice could make the law.

Chap. 23. “And if, on the county day, the aforesaid assizes cannot be taken, so many knights and freeholders shall remain, of those who shall have been present on said day, as that the judgments may be rendered by them, whether the business be more or less.”

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The meaning of this chapter is, that so many of the civil suits, as could not be tried on the day when the king’s justices were present, should be tried afterwards, by the four knights before mentioned, and the freeholders, that is, the jury. It must be admitted, of course, that the juries, in these cases, judged the matters of law, as well as fact, unless it be presumed that the knights dictated the law to the jury—a thing of which there is no evidence at all.

As a final proof on this point, there is a statute enacted seventy years after Magna Carta, which, although it is contrary to the common law, and therefore void, is nevertheless good evidence, inasmuch as it contains an acknowledgment, on the part of the king himself, that juries had a right to judge of the whole matter, law and fact, in civil suits. The provision is this:

“It is ordained, that the justices assigned to take the assizes, shall not compel the jurors to say precisely whether it be disseisin, or not, so that they do show the truth of the deed, and seek aid of the justices. But if they will, of their own accord, say that it is disseisin, or not, their verdict shall be admitted at their own peril.”

—13 Edward I., st. 1, ch. 3, sec. 2. (1285.)

The question of “disseisin, or not,” was a question of law, as well as fact. This statute, therefore, admits that the law, as well as the fact, was in the hands of the jury. The statute is nevertheless void, because the king had no authority to give jurors a dispensation from the obligation imposed upon them by their oaths and the “law of the land,” that they should “make known the truth according their (own) consciences.” This they were bound to do, and there was no power in the king to absolve them from the duty. And the attempt of the king thus to absolve them, and authorize them to throw the case into the hands of the judges for decision, was simply an illegal and unconstitutional attempt to overturn the “law of the land,” which he was sworn to maintain, and gather power into his own hands, through his judges. He had just as much constitutional power to enact that the jurors should not be compelled to declare the facts, but that they might leave them to be determined by the king’s judges, as he had to enact that they [122] should not be compelled to declare the law, but might leave it to be decided by the king’s judges. It was as much the legal duty of the jury to decide the law as to decide the fact; and no law of the king could affect their obligation to do either. And this statute is only one example of the numberless contrivances and usurpations which have been resorted to, for the purpose of destroying the original and genuine trial by jury.

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CHAPTER V.: OBJECTIONS ANSWERED.

The following objections will be made to the doctrines and the evidence presented in the preceding chapters.

1. That it is a maxim of the law, that the judges respond to the question of law, and juries only to the question of fact.

The answer to this objection is, that, since Magna Carta, judges have had more than six centuries in which to invent and promulgate pretended maxims to suit themselves; and this is one of them. Instead of expressing the law, it expresses nothing but the ambitious and lawless will of the judges themselves, and of those whose instruments they are.*

2. It will be asked, Of what use are the justices, if the jurors judge both of law and fact?

The answer is, that they are of use, 1. To assist and enlighten the jurors, if they can, by their advice and information; such advice and information to be received only for what they may chance to be worth in the estimation of the jurors. 2. To do anything that may be necessary in regard to granting appeals and new trials.

3. It is said that it would be absurd that twelve ignorant men should have power to judge of the law, while justices learned in the law should be compelled to sit by and see the law decided erroneously.

One answer to this objection is, that the powers of juries [124] are not granted to them on the supposition that they know the law better than the justices; but on the ground that the justices are untrustworthy, that they are exposed to bribes, are themselves fond of power and authority, and are also the dependent and subservient creatures of the legislature; and that to allow them to dictate the law, would not only expose the rights of parties to be sold for money, but would be equivalent to surrendering all the property, liberty, and rights of the people, unreservedly into the hands of arbitrary power, (the legislature,) to be disposed of at its pleasure. The powers of juries, therefore, not only place a curb upon the powers of legislators and judges, but imply also an imputation upon their integrity and trustworthiness; and these are the reasons why legislators and judges have formerly entertained the intensest hatred of juries, and, so fast as they could do it without alarming the people for their liberties, have, by indirection, denied, undermined, and practically destroyed their power. And it is only since all the real power of juries has been destroyed, and they have become mere tools in the hands of legislators and judges, that they have become favorites with them.

Legislators and judges are necessarily exposed to all the temptations of money, fame, and power, to induce them to disregard justice between parties, and sell the rights, and violate the liberties of the people. Jurors, on the other hand, are exposed to none of these temptations. They are not liable to bribery, for they are unknown to the parties until they come into the jury-box. They can rarely gain either fame, power, or money, by giving erroneous decisions. Their offices are temporary, and they know that when they shall have executed them, they must return to the people, to hold all their own rights in life subject to the liability of such judgments, by their successors, as they themselves have given an example for. The laws of human nature do not permit the supposition that twelve men, taken by lot from the mass of the people, and acting under such circumstances, will all prove dishonest. It is a supposable case that they may not be sufficiently enlightened to know and do their whole duty, in all cases whatsoever; but that they should all prove dishonest, is not within [125] the range of probability. A jury, therefore, insures to us—what no other court does—that first and indispensable requisite in a judicial tribunal, integrity.

4. It is alleged that if juries are allowed to judge of the law, they decide the law absolutely; that their decision must necessarily stand, be it right or wrong; and that this power of absolute decision would be dangerous in their hands, by reason of their ignorance of the law.

One answer is, that this power, which juries have of judging of the law, is not a power of absolute decision in all cases. For example, it is a power to declare imperatively that a man’s property, liberty, or life, shall not be taken from him; but it is not a power to declare imperatively that they shall be taken from him.

Magna Carta does not provide that the judgments of the peers shall be executed; but only that no other than their judgments shall ever be executed, so far as to take a party’s goods, rights, or person, thereon.

A judgment of the peers may be reviewed, and invalidated, and a new trial granted. So that practically a jury has no absolute power to take a party’s goods, rights, or person. They have only an absolute veto upon their being taken by the government. The government is not bound to do everything that a jury may adjudge. It is only prohibited from doing anything—(that is, from taking a party’s goods, rights, or person)—unless a jury have first adjudged it to be done.

But it will, perhaps, be said, that if an erroneous judgment of one jury should be reäffirmed by another, on a new trial, it must then be executed. But Magna Carta does not command even this—although it might, perhaps, have been reasonably safe for it to have done so—for if two juries unanimously affirm the same thing, after all the light and aid that judges and lawyers can afford them, that fact probably furnishes as strong a presumption in favor of the correctness of their opinion, as can ordinarily be obtained in favor of a judgment, by any measures of a practical character for the administration of justice. Still, there is nothing in Magna Carta that compels the execution of even a second judgment of a jury. The only injunction of Magna Carta upon the [126] government, as to what it shall do, on this point, is that it shall “do justice and right,” without sale, denial, or delay. But this leaves the government all power of determining what is justice and right, except that it shall not consider anything as justice and right—so far as to carry it into execution against the goods, rights, or person of a party—unless it be something which a jury have sanctioned.

If the government had no alternative but to execute all judgments of a jury indiscriminately, the power of juries would unquestionably be dangerous; for there is no doubt that they may sometimes give hasty and erroneous judgments. But when it is considered that their judgments can be reviewed, and new trials granted, this danger is, for all practical purposes, obviated.

If it be said that juries may successively give erroneous judgments, and that new trials cannot be granted indefinitely, the answer is, that so far as Magna Carta is concerned, there is nothing to prevent the granting of new trials indefinitely, if the judgments of juries are contrary to “justice and right.” So that Magna Carta does not require any judgment whatever to be executed—so far as to take a party’s goods, rights, or person, thereon—unless it be concurred in by both court and jury.

Nevertheless, we may, for the sake of the argument, suppose the existence of a practical, if not legal, necessity, for executing some judgment or other, in cases where juries persist in disagreeing with the courts. In such cases, the principle of Magna Carta unquestionably is, that the uniform judgments of successive juries shall prevail over the opinion of the court. And the reason of this principle is obvious, viz., that it is the will of the country, and not the will of the court, or the government, that must determine what laws shall be established and enforced; that the concurrent judgments of successive juries, given in opposition to all the reasoning which judges and lawyers can offer to the contrary, must necessarily be presumed to be a truer exposition of the will of the country, than are the opinions of the judges.

But it may be said that, unless jurors submit to the control of the court, in matters of law, they may disagree among [127] themselves, and never come to any judgment; and thus justice fail to be done.

Such a case is perhaps possible; but, if possible, it can occur but rarely; because, although one jury may disagree, a succession of juries are not likely to disagree—that is, on matters of natural law, or abstract justice.* If such a thing should occur, it would almost certainly be owing to the attempt of the court to mislead them. It is hardly possible that any other cause should be adequate to produce such an effect; because justice comes very near to being a self-evident principle. The mind perceives it almost intuitively. If, in addition to this, the court be uniformly on the side of justice, it is not a reasonable supposition that a succession of juries should disagree about it. If, therefore, a succession of juries do disagree on the law of any case, the presumption is, not that justice fails of being done, but that injustice is prevented—that injustice, which would be done, if the opinion of the court were suffered to control the jury.

For the sake of the argument, however, it may be admitted to be possible that justice should sometimes fail of being done through the disagreements of jurors, notwithstanding all the light which judges and lawyers can throw upon the question in issue. If it be asked what provision the trial by jury makes for such cases, the answer is, it makes none; and justice must fail of being done, from the want of its being made sufficiently intelligible.

Under the trial by jury, justice can never be done—that is, by a judgment that shall take a party’s goods, rights, or person—until that justice can be made intelligible or perceptible to the minds of all the jurors; or, at least, until it obtain the voluntary assent of all—an assent, which ought not to be given until the justice itself shall have become perceptible to all.

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The principles of the trial by jury, then, are these:

1. That, in criminal cases, the accused is presumed innocent.

2. That, in civil cases, possession is presumptive proof of property; or, in other words, every man is presumed to be the rightful proprietor of whatever he has in his possession.

3. That these presumptions shall be overcome, in a court of justice, only by evidence, the sufficiency of which, and by law, the justice of which, are satisfactory to the understanding and consciences of all the jurors.

These are the bases on which the trial by jury places the property, liberty, and rights of every individual.

But some one will say, if these are the principles of the trial by jury, then it is plain that justice must often fail to be done. Admitting, for the sake of the argument, that this may be true, the compensation for it is, that positive injustice will also often fail to be done; whereas otherwise it would be done frequently. The very precautions used to prevent injustice being done, may often have the effect to prevent justice being done. But are we, therefore, to take no precautions against injustice? By no means, all will agree. The question then arises—Does the trial by jury, as here explained, involve such extreme and unnecessary precautions against injustice, as to interpose unnecessary obstacles to the doing of justice? Men of different minds may very likely answer this question differently, according as they have more or less confidence in the wisdom and justice of legislators, the integrity and independence of judges, and the intelligence of jurors. This much, however, may be said in favor of these precautions, viz., that the history of the past, as well as our constant present experience, prove how much injustice may, and certainly will, be done, systematically and continually, for the want of these precautions—that is, while the law is authoritatively made and expounded by legislators and judges. On the other hand, we have no such evidence of how much justice may fail to be done, by reason of these precautions—that is, by reason of the law being left to the judgments and consciences of jurors. We can determine the former point—that is, how much positive injustice is done under the first of these two [129] systems—because the system is in full operation; but we cannot determine how much justice would fail to be done under the latter system, because we have, in modern times, had no experience of the use of the precautions themselves. In ancient times, when these precautions were nominally in force, such was the tyranny of kings, and such the poverty, ignorance, and the inability of concert and resistance, on the part of the people, that the system had no full or fair operation. It, nevertheless, under all these disadvantages, impressed itself upon the understandings, and imbedded itself in the hearts, of the people, so as no other system of civil liberty has ever done.

But this view of the two systems compares only the injustice done, and the justice omitted to be done, in the individual cases adjudged, without looking beyond them. And some persons might, on first thought, argue that, if justice failed of being done under the one system, oftener than positive injustice were done under the other, the balance was in favor of the latter system. But such a weighing of the two systems against each other gives no true idea of their comparative merits or demerits; for, possibly, in this view alone, the balance would not be very great in favor of either. To compare, or rather to contrast, the two, we must consider that, under the jury system, the failures to do justice would be only rare and exceptional cases; and would be owing either to the intrinsic difficulty of the questions, or to the fact that the parties had transacted their business in a manner unintelligible to the jury, and the effects would be confined to the individual or individuals interested in the particular suits. No permanent law would be established thereby destructive of the rights of the people in other like cases. And the people at large would continue to enjoy all their natural rights as before. But under the other system, whenever an unjust law is enacted by the legislature, and the judge imposes it upon the jury as authoritative, and they give a judgment in accordance therewith, the authority of the law is thereby established, and the whole people are thus brought under the yoke of that law; because they then understand that the law will be enforced against them in future, if they presume to exercise their rights, or [130] refuse to comply with the exactions of the law. In this manner all unjust laws are established, and made operative against the rights of the people.

The difference, then, between the two systems is this: Under the one system, a jury, at distant intervals, would (not enforce any positive injustice, but only) fail of enforcing justice, in a dark and difficult case, or in consequence of the parties not having transacted their business in a manner intelligible to a jury; and the plaintiff would thus fail of obtaining what was rightfully due him. And there the matter would end, for evil, though not for good; for thenceforth parties, warned of the danger of losing their rights, would be careful to transact their business in a more clear and intelligible manner. Under the other system—the system of legislative and judicial authority—positive injustice is not only done in every suit arising under unjust laws,—that is, men’s property, liberty, or lives are not only unjustly taken on those particular judgments,—but the rights of the whole people are struck down by the authority of the laws thus enforced, and a wide-sweeping tyranny at once put in operation.

But there is another ample and conclusive answer to the argument that justice would often fail to be done, if jurors were allowed to be governed by their own consciences, instead of the direction of the justices, in matters of law. That answer is this:

Legitimate government can be formed only by the voluntary association of all who contribute to its support. As a voluntary association, it can have for its objects only those things in which the members of the association are all agreed. If, therefore, there be any justice, in regard to which all the parties to the government are not agreed, the objects of the association do not extend to it.*

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If any of the members wish more than this,—if they claim to have acquired a more extended knowledge of justice than is common to all, and wish to have their pretended discoveries carried into effect, in reference to themselves,—they must either form a separate association for that purpose, or be content to wait until they can make their views intelligible to the people at large. They cannot claim or expect that the whole people shall practise the folly of taking on trust their pretended superior knowledge, and of committing blindly into their hands all their own interests, liberties, and rights, to be disposed of on principles, the justness of which the people themselves cannot comprehend.

A government of the whole, therefore, must necessarily confine itself to the administration of such principles of law as all the people, who contribute to the support of the government, can comprehend and see the justice of. And it can be confined within those limits only by allowing the jurors, who represent all the parties to the compact, to judge of the law, and the justice of the law, in all cases whatsoever. And if any justice be left undone, under these circumstances, it is a justice for which the nature of the association does not provide, which the association does not undertake to do, and which, as an association, it is under no obligation to do.

The people at large, the unlearned and common people, have certainly an indisputable right to associate for the establishment and maintenance of such a government as they themselves see the justice of, and feel the need of, for the promotion of their own interests, and the safety of their own rights, without at the same time surrendering all their property, liberty, and rights into the hands of men, who, under the pretence of a superior and incomprehensible knowledge of justice, may dispose of such property, liberties, and rights, in a manner to suit their own selfish and dishonest purposes.

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If a government were to be established and supported solely by that portion of the people who lay claim to superior knowledge, there would be some consistency in their saying that the common people should not be received as jurors, with power to judge of the justice of the laws. But so long as the whole people (or all the male adults) are presumed to be voluntary parties to the government, and voluntary contributors to its support, there is no consistency in refusing to any one of them more than to another the right to sit as juror, with full power to decide for himself whether any law that is proposed to be enforced in any particular case, be within the objects of the association.

The conclusion, therefore, is, that, in a government formed by voluntary association, or on the theory of voluntary association, and voluntary support, (as all the North American governments are,) no law can rightfully be enforced by the association in its corporate capacity, against the goods, rights, or person of any individual, except it be such as all the members of the association agree that it may enforce. To enforce any other law, to the extent of taking a man’s goods, rights, or person, would be making some of the parties to the association accomplices in what they regard as acts of injustice. It would also be making them consent to what they regard as the destruction of their own rights. These are things which no legitimate system or theory of government can require of any of the parties to it.

The mode adopted, by the trial by jury, for ascertaining whether all the parties to the government do approve of a particular law, is to take twelve men at random from the whole people, and accept their unanimous decision as representing the opinions of the whole. Even this mode is not theoretically accurate; for theoretical accuracy would require that every man, who was a party to the government, should individually give his consent to the enforcement of every law in every separate case. But such a thing would be impossible in practice. The consent of twelve men is therefore taken instead; with the privilege of appeal, and (in case of error found by the the appeal court) a new trial, to guard against possible mistakes. This system, it is assumed, will ascertain the sense of [133] the whole people—“the country”—with sufficient accuracy for all practical purposes, and with as much accuracy as is practicable without too great inconvenience and expense.

5. Another objection that will perhaps be made to allowing jurors to judge of the law, and the justice of the law, is, that the law would be uncertain.

If, by this objection, it be meant that the law would be uncertain to the minds of the people at large, so that they would not know what the juries would sanction and what condemn, and would not therefore know practically what their own rights and liberties were under the law, the objection is thoroughly baseless and false. No system of law that was ever devised could be so entirely intelligible and certain to the minds of the people at large as this. Compared with it, the complicated systems of law that are compounded of the law of nature, of constitutional grants, of innumerable and incessantly changing legislative enactments, and of countless and contradictory judicial decisions, with no uniform principle of reason or justice running through them, are among the blindest of all the mazes in which unsophisticated minds were ever bewildered and lost. The uncertainty of the law under these systems has become a proverb. So great is this uncertainty, that nearly all men, learned as well as unlearned, shun the law as their enemy, instead of resorting to it for protection. They usually go into courts of justice, so called, only as men go into battle—when there is no alternative left for them. And even then they go into them as men go into dark labyrinths and caverns—with no knowledge of their own, but trusting wholly to their guides. Yet, less fortunate than other adventurers, they can have little confidence even in their guides, for the reason that the guides themselves know little of the mazes they are threading. They know the mode and place of entrance; but what they will meet with on their way, and what will be the time, mode, place, or condition of their exit; whether they will emerge into a prison, or not; whether wholly naked and destitute, or not; whether with their reputations left to them, or not; and whether in time or eternity; experienced and honest guides rarely venture to predict. Was there ever such fatuity as that of a nation of men [134] madly bent on building up such labyrinths as these, for no other purpose than that of exposing all their rights of reputation, property, liberty, and life, to the hazards of being lost in them, instead of being content to live in the light of the open day of their own understandings?

What honest, unsophisticated man ever found himself involved in a lawsuit, that he did not desire, of all things, that his cause might be judged of on principles of natural justice, as those principles were understood by plain men like himself? He would then feel that he could foresee the result. These plain men are the men who pay the taxes, and support the government. Why should they not have such an administration of justice as they desire, and can understand?

If the jurors were to judge of the law, and the justice of the law, there would be something like certainty in the administration of justice, and in the popular knowledge of the law, and men would govern themselves accordingly. There would be something like certainty, because every man has himself something like definite and clear opinions, and also knows something of the opinions of his neighbors, on matters of justice. And he would know that no statute, unless it were so clearly just as to command the unanimous assent of twelve men, who should be taken at random from the whole community, could be enforced so as to take from him his reputation, property, liberty, or life. What greater certainty can men require or need, as to the laws under which they are to live? If a statute were enacted by a legislature, a man, in order to know what was its true interpretation, whether it were constitutional, and whether it would be enforced, would not be under the necessity of waiting for years until some suit had arisen and been carried through all the stages of judicial proceeding, to a final decision. He would need only to use his own reason as to its meaning and its justice, and then talk with his neighbors on the same points. Unless he found them nearly unanimous in their interpretation and approbation of it, he would conclude that juries would not unite in enforcing it, and that it would consequently be a dead letter. And he would be safe in coming to this conclusion.

There would be something like certainty in the administration [135] of justice, and in the popular knowledge of the law, for the further reason that there would be little legislation, and men’s rights would be left to stand almost solely upon the law of nature, or what was once called in England “the common law,” (before so much legislation and usurpation had become incorporated into the common law,)—in other words, upon the principles of natural justice.

Of the certainty of this law of nature, or the ancient English common law, I may be excused for repeating here what I have said on another occasion.

“Natural law, so far from being uncertain, when compared with statutory and constitutional law, is the only thing that gives any certainty at all to a very large portion of our statutory and constitutional law. The reason is this. The words in which statutes and constitutions are written are susceptible of so many different meanings,—meanings widely different from, often directly opposite to, each other, in their bearing upon men’s rights,—that, unless there were some rule of interpretation for determining which of these various and opposite meanings are the true ones, there could be no certainty at all as to the meaning of the statutes and constitutions themselves. Judges could make almost anything they should please out of them. Hence the necessity of a rule of interpretation. And this rule is, that the language of statutes and constitutions shall be construed, as nearly as possible, consistently with natural law.

The rule assumes, what is true, that natural law is a thing certain in itself; also that it is capable of being learned. It assumes, furthermore, that it actually is understood by the legislators and judges who make and interpret the written law. Of necessity, therefore, it assumes further, that they (the legislators and judges) are incompetent to make and interpret the written law, unless they previously understand the natural law applicable to the same subject. It also assumes that the people must understand the natural law, before they can understand the written law.

It is a principle perfectly familiar to lawyers, and one that must be perfectly obvious to every other man that will reflect a moment, that, as a general rule, no one can know what the written law is, until he knows what it ought to be; that men are liable to be constantly misled by the various and conflicting senses of the same words, unless they perceive the true legal sense in which the words ought to be taken. And this true legal sense is the sense that is most nearly consistent with [136] natural law of any that the words can be made to bear, consistently with the laws of language, and appropriately to the subjects to which they are applied.

Though the words contain the law, the words themselves are not the law. Were the words themselves the law, each single written law would be liable to embrace many different laws, to wit, as many different laws as there were different senses, and different combinations of senses, in which each and all the words were capable of being taken.

Take, for example, the Constitution of the United States. By adopting one or another sense of the single word “free,” the whole instrument is changed. Yet the word free is capable of some ten or twenty different senses. So that, by changing the sense of that single word, some ten or twenty different constitutions could be made out of the same written instrument. But there are, we will suppose, a thousand other words in the constitution, each of which is capable of from two to ten different senses. So that, by changing the sense of only a single word at a time, several thousands of different constitutions would be made. But this is not all. Variations could also be made by changing the senses of two or more words at a time, and these variations could be run through all the changes and combinations of senses that these thousand words are capable of. We see, then, that it is no more than a literal truth, that out of that single instrument, as it now stands, without altering the location of a single word, might be formed, by construction and interpretation, more different constitutions than figures can well estimate.

But each written law, in order to be a law, must be taken only in some one definite and distinct sense; and that definite and distinct sense must be selected from the almost infinite variety of senses which its words are capable of. How is this selection to be made? It can be only by the aid of that perception of natural law, or natural justice, which men naturally possess.

Such, then, is the comparative certainty of the natural and the written law. Nearly all the certainty there is in the latter, so far as it relates to principles, is based upon, and derived from, the still greater certainty of the former. In fact, nearly all the uncertainty of the laws under which we live,—which are a mixture of natural and written laws,—arises from the difficulty of construing, or, rather, from the facility of misconstruing, the written law; while natural law has nearly or quite the same certainty as mathematics. On this point, Sir William Jones, one of the most learned judges that have ever lived, learned in Asiatic as well as European law, says,—and [137] the fact should be kept forever in mind, as one of the most important of all truths:—“It is pleasing to remark the similarity, or, rather, the identity of those conclusions which pure, unbiassed reason, in all ages and nations, seldom fails to draw, in such juridical inquiries as are not fettered and manacled by positive institutions.”* In short, the simple fact that the written law must be interpreted by the natural, is, of itself, a sufficient confession of the superior certainty of the latter.

The written law, then, even where it can be construed consistently with the natural, introduces labor and obscurity, instead of shutting them out. And this must always be the case, because words do not create ideas, but only recall them; and the same word may recall many different ideas. For this reason, nearly all abstract principles can be seen by the single mind more clearly than they can be expressed by words to another. This is owing to the imperfection of language, and the different senses, meanings, and shades of meaning, which different individuals attach to the same words, in the same circumstances.†

Where the written law cannot be construed consistently with the natural, there is no reason why it should ever be enacted at all. It may, indeed, be sufficiently plain and certain to be easily understood; but its certainty and plainness are but a poor compensation for its injustice. Doubtless a law forbidding men to drink water, on pain of death, might be made so intelligible as to cut off all discussion as to its meaning; but would the intelligibleness of such a law be any equivalent for the right to drink water? The principle is the same in regard to all unjust laws. Few persons could [138] reasonably feel compensated for the arbitary destruction of their rights, by having the order for their destruction made known beforehand, in terms so distinct and unequivocal as to admit of neither mistake nor evasion. Yet this is all the compensation that such laws offer.

Whether, therefore, written laws correspond with, or differ from, the natural, they are to be condemned. In the first case, they are useless repetitions, introducing labor and obscurity. In the latter case, they are positive violations of men’s rights.

There would be substantially the same reason in enacting mathematics by statute, that there is in enacting natural law. Whenever the natural law is sufficiently certain to all men’s minds to justify its being enacted, it is sufficiently certain to need no enactment. On the other hand, until it be thus certain, there is danger of doing injustice by enacting it; it should, therefore, be left open to be discussed by anybody who may be disposed to question it, and to be judged of by the proper tribunal, the judiciary.*

It is not necessary that legislators should enact natural law in order that it may be known to the people, because that would be presuming that the legislators already understand it better than the people,—a fact of which I am not aware that they have ever heretofore given any very satisfactory evidence. The same sources of knowledge on the subject are open to the people that are open to the legislators, and the people must be presumed to know it as well as they.

The objections made to natural law, on the ground of obscurity, are wholly unfounded. It is true, it must be learned, like any other science; but it is equally true that it is very easily learned. Although as illimitable in its applications as the infinite relations of men to each other, it is, nevertheless, made up of simple elementary principles, of the truth and justice of which every ordinary mind has an almost intuitive perception. It is the science of justice,—and almost all men have the same perceptions of what constitutes justice, or of what justice requires, when they understand alike the facts from which their inferences are to be drawn. Men living in contact with each other, and having intercourse together, cannot avoid learning [139] natural law, to a very great extent, even if they would. The dealings of men with men, their separate possessions, and their individual wants, are continually forcing upon their minds the questions,—Is this act just? or is it unjust? Is this thing mine? or is it his? And these are questions of natural law; questions, which, in regard to the great mass of cases, are answered alike by the human mind everywhere.

Children learn many principles of natural law at a very early age. For example: they learn that when one child has picked up an apple or a flower, it is his, and that his associates must not take it from him against his will. They also learn that if he voluntarily exchange his apple or flower with a playmate, for some other article of desire, he has thereby surrendered his right to it, and must not reclaim it. These are fundamental principles of natural law, which govern most of the greatest interests of individuals and society; yet children learn them earlier than they learn that three and three are six, or five and five, ten. Talk of enacting natural law by statute, that it may be known! It would hardly be extravagant to say, that, in nine cases in ten, men learn it before they have learned the language by which we describe it. Nevertheless, numerous treatises are written on it, as on other sciences. The decisions of courts, containing their opinions upon the almost endless variety of cases that have come before them, are reported; and these reports are condensed, codified, and digested, so as to give, in a small compass, the facts, and the opinions of the courts as to the law resulting from them. And these treatises, codes, and digests are open to be read of all men. And a man has the same excuse for being ignorant of arithmetic, or any other science, that he has for being ignorant of natural law. He can learn it as well, if he will, without its being enacted, as he could if it were.

If our governments would but themselves adhere to natural law, there would be little occasion to complain of the ignorance of the people in regard to it. The popular ignorance of law is attributable mainly to the innovations that have been made upon natural law by legislation; whereby our system has become an incongruous mixture of natural and statute law, with no uniform principle pervading it. To learn such a system,—if system it can be called, and if learned it can be,—is a matter of very similar difficulty to what it would be to learn a system of mathematics, which should consist of the mathematics of nature, interspersed with such other mathematics as might be created by legislation, in violation of all the natural principles of numbers and quantities.

But whether the difficulties of learning natural law be [140] greater or less than here represented, they exist in the nature of things, and cannot be removed. Legislation, instead of removing, only increases them. This it does by innovating upon natural truths and principles, and introducing jargon and contradiction, in the place of order, analogy, consistency, and uniformity.

Further than this; legislation does not even profess to remove the obscurity of natural law. That is no part of its object. It only professes to substitute something arbitrary in the place of natural law. Legislators generally have the sense to see that legislation will not make natural law any clearer than it is. Neither is it the object of legislation to establish the authority of natural law. Legislators have the sense to see that they can add nothing to the authority of natural law, and that it will stand on its own authority, unless they overturn it.

The whole object of legislation, excepting that legislation which merely makes regulations, and provides instrumentalities for carrying other laws into effect, is to overturn natural law, and substitute for it the arbitrary will of power. In other words, the whole object of it is to destroy men’s rights. At least, such is its only effect; and its designs must be inferred from its effect. Taking all the statutes in the country, there probably is not one in a hundred,—except the auxiliary ones just mentioned,—that does not violate natural law; that does not invade some right or other.

Yet the advocates of arbitrary legislation are continually practising the fraud of pretending that unless the legislature make the laws, the laws will not be known. The whole object of the fraud is to secure to the government the authority of making laws that never ought to be known.”

In addition to the authority already cited, of Sir William Jones, as to the certainty of natural law, and the uniformity of men’s opinions in regard to it, I may add the following:

“There is that great simplicity and plainness in the Common Law, that Lord Coke has gone so far as to assert, (and Lord Bacon nearly seconds him in observing,) that ‘he never knew two questions arise merely upon common law; but that they were mostly owing to statutes ill-penned and overladen with provisos.’ ”

—3 Eunomus, 157-8.

If it still be said that juries would disagree, as to what was natural justice, and that one jury would decide one way, and another jury another; the answer is, that such a thing is hardly credible, as that twelve men, taken at random from the people [141] at large, should unanimously decide a question of natural justice one way, and that twelve other men, selected in the same manner, should unanimously decide the same question the other way, unless they were misled by the justices. If, however, such things should sometimes happen, from any cause whatever, the remedy is by appeal, and new trial.

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CHAPTER VI.: JURIES OF THE PRESENT DAY ILLEGAL.

It may probably be safely asserted that there are, at this day, no legal juries, either in England or America. And if there are no legal juries, there is, of course, no legal trial, nor “judgment,” by jury.

In saying that there are probably no legal juries, I mean that there are probably no juries appointed in conformity with the principles of the common law.

The term jury is a technical one, derived from the common law; and when the American constitutions provide for the trial by jury, they provide for the common law trial by jury; and not merely for any trial by jury that the government itself may chance to invent, and call by that name. It is the thing, and not merely the name, that is guarantied. Any legislation, therefore, that infringes any essential principle of the common law, in the selection of jurors, is unconstitutional; and the juries selected in accordance with such legislation are, of course, illegal, and their judgments void.

It will also be shown, in a subsequent chapter,* that since Magna Carta, the legislative power in England (whether king or parliament) has never had any constitutional authority to infringe, by legislation, any essential principle of the common law in the selection of jurors. All such legislation is as much unconstitutional and void, as though it abolished the trial by jury altogether. In reality it does abolish it.

What, then, are the essential principles of the common law, controlling the selection of jurors?

They are two.

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1. That all the freemen, or adult male members of the state, shall be eligible as jurors.*

Any legislation which requires the selection of jurors to be made from a less number of freemen than the whole, makes the jury selected an illegal one.

If a part only of the freemen, or members of the state, are eligible as jurors, the jury no longer represent “the country,” but only a part of “the country.”

If the selection of jurors can be restricted to any less number of freemen than the whole, it can be restricted to a very small proportion of the whole; and thus the government be taken out of the hands of “the country,” or the whole people, and be thrown into the hands of a few.

That, at common law, the whole body of freemen were eligible as jurors, is sufficiently proved, not only by the reason of the thing, but by the following evidence:

1. Everybody must be presumed eligible, until the contrary be shown. We have no evidence, that I am aware of, of a prior date to Magna Carta, to disprove that all freemen were eligible as jurors, unless it be the law of Ethelred, which requires that they be elderly† men. Since no specific age is given, it is probable, I think, that this statute meant nothing more than that they be more than twenty-one years old. If it meant anything more, it was probably contrary to the common law, and therefore void.

2. Since Magna Carta, we have evidence showing quite conclusively that all freemen, above the age of twenty-one years, were eligible as jurors.

The Mirror of Justices, (written within a century after Magna Carta,) in the section “Of Judges”—that is, jurors—says:

“All those who are not forbidden by law may be judges [144] (jurors). To women it is forbidden by law that they be judges; and thence it is, that feme coverts are exempted to do suit in inferior courts. On the other part, a villein cannot be a judge, by reason of the two estates, which are repugnants; persons attainted of false judgments cannot be judges, nor infants, nor any under the age of twenty-one years, nor infected persons, nor idiots, nor madmen, nor deaf, nor dumb, nor parties in the pleas, nor men excommunicated by the bishop, nor criminal persons. * * And those who are not of the Christian faith cannot be judges, nor those who are out of the king’s allegiance.”

—Mirror of Justices, 59-60.

In the section “Of Inferior Courts,” it is said:

“From the first assemblies came consistories, which we now call courts, and that in divers places, and in divers manners; whereof the sheriffs held one monthly, or every five weeks, according to the greatness or largeness of the shires. And these courts are called county courts, where the judgment is by the suitors, if there be no writ, and is by warrant of jurisdiction ordinary. The other inferior courts are the courts of every lord of the fee, to the likeness of the hundred courts. * * There are other inferior courts which the bailiffs hold in every hundred, from three weeks to three weeks, by the suitors of the freeholders of the hundred. All the tenants within the fees are bounden to do their suit there, and that not for the service of their persons, but for the service of their fees. But women, infants within the age of twenty-one years, deaf, dumb, idiots, those who are indicted or appealed of mortal felony, before they be acquitted, diseased persons, and excommunicated persons are exempted from doing suit.”

—Mirror of Justices, 50-51.

In the section “Of the Sheriff’s Turns,” it is said:

“The sheriffs by ancient ordinances hold several meetings twice in the year in every hundred; where all the freeholders within the hundred are bound to appear for the service of their fees.”

—Mirror of Justices, 50.

The following statute was passed by Edward I., seventy years after Magna Carta:

“Forasmuch also as sheriffs, hundreders, and bailiffs of liberties, have used to grieve those which be placed under them, putting in assizes and juries men diseased and decrepit, and having continual or sudden disease; and men also that dwelled not in the country at the time of the summons; and summon also an unreasonable number of jurors, for to extort [145] money from some of them, for letting them go in peace, and so the assizes and juries pass many times by poor men, and the rich abide at home by reason of their bribes; it is ordained that from henceforth in one assize no more shall be summoned than four and twenty; and old men above three score and ten years, being continually sick, or being diseased at the time of the summons, or not dwelling in that country, shall not be put in juries of petit assizes.”

—St. 13 Edward I., ch. 38. (1285.)

Although this command to the sheriffs and other officers, not to summon, as jurors, those who, from age and disease, were physically incapable of performing the duties, may not, of itself, afford any absolute or legal implication, by which we can determine precisely who were, and who were not, eligible as jurors at common law, yet the exceptions here made nevertheless carry a seeming confession with them that, at common law, all male adults were eligible as jurors.

But the main principle of the feudal system itself shows that all the full and free adult male members of the state—that is, all who were free born, and had not lost their civil rights by crime, or otherwise—must, at common law, have been eligible as jurors. What was that principle? It was, that the state rested for support upon the land, and not upon taxation levied upon the people personally. The lands of the country were considered the property of the state, and were made to support the state in this way. A portion of them was set apart to the king, the rents of which went to pay his personal and official expenditures, not including the maintenance of armies, or the administration of justice. War and the administration of justice were provided for in the following manner. The freemen, or the free-born adult male members of the state—who had not forfeited their political rights—were entitled to land of right, (until all the land was taken up,) on condition of their rendering certain military and civil services to the state. The military services consisted in serving personally as soldiers, or contributing an equivalent in horses, provisions, or other military supplies. The civil services consisted, among other things, in serving as jurors (and, it would appear, as witnesses) in the courts of justice. For these services [146] they received no compensation other than the use of their lands. In this way the state was sustained; and the king had no power to levy additional burdens or taxes upon the people. The persons holding lands on these terms were called freeholders—in later times freemen—meaning free and full members of the state.

Now, as the principle of the system was that the freeholders held their lands of the state, on the condition of rendering these military and civil services as rents for their lands, the principle implies that all the freeholders were liable to these rents, and were therefore eligible as jurors. Indeed, I do not know that it has ever been doubted that, at common law, all the freeholders were eligible as jurors. If all had not been eligible, we unquestionably should have had abundant evidence of the exceptions. And if anybody, at this day, allege any exceptions, the burden will be on him to prove them. The presumption clearly is that all were eligible.

The first invasion, which I find made, by the English statutes, upon this common law principle, was made in 1285, seventy years after Magna Carta. It was then enacted as follows:

“Nor shall any be put in assizes or juries, though they ought to be taken in their own shire, that hold a tenement of less than the value of twenty shillings yearly. And if such assizes and juries be taken out of the shire, no one shall be placed in them who holds a tenement of less value than forty shillings yearly at the least, except such as be witnesses in deeds or other writings, whose presence is necessary, so that they be able to travel.”

—St. 13 Edward I., ch. 38. (1285.)

The next invasion of the common law, in this particular, was made in 1414, about two hundred years after Magna Carta, when it was enacted:

“That no person shall be admitted to pass in any inquest upon trial of the death of a man, nor in any inquest betwixt party and party in plea real, nor in plea personal, whereof the debt or the damage declared amount to forty marks, if the same person have not lands or tenements of the yearly value of forty shillings above all charges of the same.”

—2 Henry V., st. 2, ch. 3. (1414.)

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Other statutes on this subject of the property qualifications of jurors, are given in the note.*

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From these statutes it will be seen that, since 1285, seventy years after Magna Carta, the common law right of all free British subjects to eligibility as jurors has been abolished, and the qualifications of jurors have been made a subject of arbitrary legislation. In other words, the government has usurped the authority of selecting the jurors that were to sit in judgment upon its own acts. This is destroying the vital principle of the trial by jury itself, which is that the legislation of the government shall be subjected to the judgment of a tribunal, taken indiscriminately from the whole people, without any choice by the government, and over which the government can exercise no control. If the government can select the jurors, it will, of course, select those whom it supposes will be favorable to its enactments. And an exclusion of any of the freemen from eligibility is a selection of those not excluded.

It will be seen, from the statutes cited, that the most absolute authority over the jury box—that is, over the right of the people to sit in juries—has been usurped by the government; [149] that the qualifications of jurors have been repeatedly changed, and made to vary from a freehold of ten shillings yearly, to one of “twenty pounds by the year at least above reprises.” They have also been made different, in the counties of Southampton, Surrey, and Sussex, from what they were in the other counties; different in Wales from what they were in England; and different in the city of London, and in the county of Middlesex, from what they were in any other part of the kingdom.

But this is not all. The government has not only assumed arbitrarily to classify the people, on the basis of property, but it has even assumed to give to some of its judges entire and absolute personal discretion in the selection of the jurors to be impanelled in criminal cases, as the following statutes show.

“Be it also ordained and enacted by the same authority, that all panels hereafter to be returned, which be not at the suit of any party, that shall be made and put in afore any justice of gaol delivery or justices of peace in their open sessions to inquire for the king, shall hereafter be reformed by additions and taking out of names of persons by discretion of the same justices before whom such panel shall be returned; and the same justices shall hereafter command the sheriff, or his ministers in his absence, to put other persons in the same panel by their discretions; and that panel so hereafter to be made, to be good and lawful. This act to endure only to the next Parliament.”

—11 Henry VII., ch. 24, sec. 6. (1495.)

This act was continued in force by 1 Henry VIII., ch. 11, (1509,) to the end of the then next Parliament.

It was reënacted, and made perpetual, by 3 Henry VIII., ch. 12. (1511.)

These acts gave unlimited authority to the king’s justices to pack juries at their discretion; and abolished the last vestige of the common law right of the people to sit as jurors, and judge of their own liberties, in the courts to which the acts applied.

Yet, as matters of law, these statutes were no more clear violations of the common law, the fundamental and paramount “law of the land,” than were those statutes which affixed the property qualifications before named; because, if the king, or the government, can select the jurors on the ground of property, it can select them on any other ground whatever.

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Any infringement or restriction of the common law right of the whole body of the freemen of the kingdom to eligibility as jurors, was legally an abolition of the trial by jury itself. The juries no longer represented “the country,” but only a part of the country; that part, too, on whose favor the government chose to rely for the maintenance of its power, and which it therefore saw fit to select as being the most reliable instruments for its purposes of oppression towards the rest. And the selection was made on the same principle, on which tyrannical governments generally select their supporters, viz., that of conciliating those who would be most dangerous as enemies, and most powerful as friends—that is, the wealthy.*

These restrictions, or indeed any one of them, of the right of eligibility as jurors, was, in principle, a complete abolition of the English constitution; or, at least, of its most vital and valuable part. It was, in principle, an assertion of a right, on the part of the government, to select the individuals who were to determine the authority of its own laws, and the extent of its own powers. It was, therefore, in effect, the assertion of a right, on the part of the government itself, to determine its own powers, and the authority of its own legislation, over the people; and a denial of all right, on the part of the people, to judge of or determine their own liberties against the government. It was, therefore, in reality, a declaration of entire absolutism on the part of the government. It was an act as purely despotic, in principle, as would have been the express abolition of all juries whatsoever. By “the law of the land,” which the kings were sworn to maintain, every free adult male British subject was eligible to the jury box, with full power to exercise his own judgment as to the authority and obligation of every statute of the king, which might come [151] before him. But the principle of these statutes (fixing the qualifications of jurors) is, that nobody is to sit in judgment upon the acts or legislation of the king, or the government, except those whom the government itself shall select for that purpose. A more complete subversion of the essential principles of the English constitution could not be devised.

The juries of England are illegal for another reason, viz., that the statutes cited require the jurors (except in London and a few other places) to be freeholders. All the other free British subjects are excluded; whereas, at common law, all such subjects are eligible to sit in juries, whether they be freeholders or not.

It is true, the ancient common law required the jurors to be freeholders; but the term freeholder no longer expresses the same idea that it did in the ancient common law; because no land is now holden in England on the same principle, or by the same tenure, as that on which all the land was held in the early times of the common law.

As has heretofore been mentioned, in the early times of the common law the land was considered the property of the state; and was all holden by the tenants, so called, (that is, holders,) on the condition of their rendering certain military and civil services to the state, (or to the king as the representative of the state,) under the name of rents. Those who held lands on these terms were called free tenants, that is, free holders—meaning free persons, or members of the state, holding lands—to distinguish them from villeins, or serfs, who were not members of the state, but held their lands by a more servile tenure, and also to distinguish them from persons of foreign birth, outlaws, and all other persons, who were not members of the state.

Every freeborn adult male Englishman (who had not lost his civil rights by crime or otherwise) was entitled to land of right; that is, by virtue of his civil freedom, or membership of the body politic. Every member of the state was therefore a freeholder; and every freeholder was a member of the state. And the members of the state were therefore called freeholders. But what is material to be observed, is, that a man’s right to [152] land was an incident to his civil freedom; not his civil freedom an incident to his right to land. He was a freeholder because he was a freeborn member of the state; and not a freeborn member of the state because he was a freeholder; for this last would be an absurdity.

As the tenures of lands changed, the term freeholder lost its original significance, and no longer described a man who held land of the state by virtue of his civil freedom, but only one who held it in fee-simple—that is, free of any liability to military or civil services. But the government, in fixing the qualifications of jurors, has adhered to the term freeholder after that term has ceased to express the thing originally designated by it.

The principle, then, of the common law, was, that every freeman, or freeborn male Englishman, of adult age, &c., was eligible to sit in juries, by virtue of his civil freedom, or his being a member of the state, or body politic. But the principle of the present English statutes is, that a man shall have a right to sit in juries because he owns lands in fee-simple. At the common law a man was born to the right to sit in juries. By the present statutes he buys that right when he buys his land. And thus this, the greatest of all the political rights of an Englishman, has become a mere article of merchandise; a thing that is bought and sold in the market for what it will bring.

Of course, there can be no legality in such juries as these; but only in juries to which every free or natural born adult male Englishman is eligible.

The second essential principle of the common law, controlling the selection of jurors, is, that when the selection of the actual jurors comes to be made, (from the whole body of male adults,) that selection shall be made in some mode that excludes the possibility of choice on the part of the government.

Of course, this principle forbids the selection to be made by any officer of the government.

There seem to have been at least three modes of selecting the jurors, at the common law. 1. By lot.* 2. Two knights, or other freeholders, were appointed, (probably by the sheriff,) [153] to select the jurors. 3. By the sheriff, bailiff, or other person, who held the court, or rather acted as its ministerial officer. Probably the latter mode may have been the most common, although there may be some doubt on this point.

At the common law the sheriffs, bailiffs, and other officers were chosen by the people, instead of being oppointed by the king. (4 Blackstone, 413. Introduction to Gilbert’s History of the Common Pleas, p. 2, note, and p. 4.) This has been shown in a former chapter.* At common law, therefore, jurors selected by these officers were legally selected, so far as the principle now under discussion is concerned; that is, they were not selected by any officer who was dependent on the government.

But in the year 1315, one hundred years after Magna Carta, the choice of sheriffs was taken from the people, and it was enacted:

“That the sheriffs shall henceforth be assigned by the chancellor, treasurer, barons of the exchequer, and by the justices. And in the absence of the chancellor, by the treasurer, barons and justice.”

—9 Edward II., st. 2. (1315.)

These officers, who appointed the sheriffs, were themselves appointed by the king, and held their offices during his pleasure. Their appointment of sheriffs was, therefore, equivalent to an appointment by the king himself. And the sheriffs, thus appointed, held their offices only during the pleasure of the king, and were of course mere tools of the king; and their selection of jurors was really a selection by the king himself. In this manner the king usurped the selection of the jurors who were to sit in judgment upon his own laws.

Here, then, was another usurpation, by which the common law trial by jury was destroyed, so far as related to the county courts, in which the sheriffs presided, and which were the most important courts of the kingdom. From this cause alone, if there were no other, there has not been a legal jury in a county court in England, for more than five hundred years.

In nearly or quite all the States of the United States the juries are illegal, for one or the other of the same reasons that make the juries in England illegal.

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In order that the juries in the United States may be legal—that is, in accordance with the principles of the common law—it is necessary that every adult male member of the state should have his name in the jury box, or be eligible as a juror. Yet this is the case in hardly a single state.

In New Jersey, Maryland, North Carolina, Tennessee, and Mississippi, the jurors are required to be freeholders. But this requirement is illegal, for the reason that the term freeholder, in this country, has no meaning analogous to the meaning it had in the ancient common law.

In Arkansas, Missouri, Indiana, and Alabama, jurors are required to be “freeholders or householders.” Each of these requirements is illegal.

In Florida, they are required to be “householders.”

In Connecticut, Maine, Ohio, and Georgia, jurors are required to have the qualifications of “electors.”

In Virginia, they are required to have a property qualification of one hundred dollars.

In Maine, Massachusetts, Vermont, Connecticut, New York, Ohio, Indiana, Michigan, and Wisconsin, certain civil authorities of the towns, cities, and counties are authorized to select, once in one, two, or three years, a certain number of the people—a small number compared with the whole—from whom jurors are to be taken when wanted; thus disfranchising all except the few thus selected.

In Maine and Vermont, the inhabitants, by vote in town meeting, have a veto upon the jurors selected by the authorities of the town.

In Massachusetts, the inhabitants, by vote in town meeting, can strike out any names inserted by the authorities, and insert others; thus making jurors elective by the people, and, of course, representatives only of a majority of the people.

In Illinois, the jurors are selected, for each term of court, by the county commissioners.

In North Carolina, “the courts of pleas and quarter sessions * * shall select the names of such persons only as are freeholders, and as are well qualified to act as jurors, &c.; thus giving the courts power to pack the juries.”—(Revised Statutes, 147.)

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In Arkansas, too, “It shall be the duty of the county court of each county * * to make out and cause to be delivered to the sheriff a list of not less than sixteen, nor more than twenty-three persons, qualified to serve as grand jurors;” and the sheriff is to summon such persons to serve as grand jurors.

In Tennessee, also, the jurors are to be selected by the county courts.

In Georgia, the jurors are to be selected by “the justices of the inferior courts of each county, together with the sheriff and clerk, or a majority of them.”

In Alabama, “the sheriff, judge of the county court, and clerks of the circuit and county courts,” or “a majority of” them, select the jurors.

In Virginia, the jurors are selected by the sheriffs; but the sheriffs are appointed by the governor of the state, and that is enough to make the juries illegal. Probably the same objection lies against the legality of the juries in some other states.

How jurors are appointed, and what are their qualifications, in New Hampshire, Rhode Island, Pennsylvania, Delaware, South Carolina, Kentucky, Iowa, Texas, and California, I know not. There is little doubt that there is some valid objection to them, of the kinds already suggested, in all these states.

In regard to jurors in the courts of the United States, it is enacted, by act of Congress:

“That jurors to serve in the courts of the United States, in each state respectively, shall have the like qualifications, and be entitled to the like exemptions, as jurors of the highest court of law of such state now have and are entitled to, and shall hereafter, from time to time, have and be entitled to, and shall be designated by ballot, lot, or otherwise, according to the mode of forming such juries now practised and hereafter to be practised therein, in so far as such mode may be practicable by the courts of the United States, or the officers thereof; and for this purpose, the said courts shall have power to make all necessary rules and regulations for conforming the designation and empanelling of jurors, in substance, to the laws and usages now in force in such state; and, further, shall have power, by rule or order, from time to time, to conform the same to any change in these respects which may be hereafter adopted by the legislatures of the respective states for the state courts.”

—St. 1840, ch. 47, Statutes at Large, vol. 5, p. 394.

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In this corrupt and lawless manner, Congress, instead of taking care to preserve the trial by jury, so far as they might, by providing for the appointment of legal juries—incomparably the most important of all our judicial tribunals, and the only ones on which the least reliance can be placed for the preservation of liberty—have given the selection of them over entirely to the control of an indefinite number of state legislatures, and thus authorized each state legislature to adapt the juries of the United States to the maintenance of any and every system of tyranny that may prevail in such state.

Congress have as much constitutional right to give over all the functions of the United States government into the hands of the state legislatures, to be exercised within each state in such manner as the legislature of such state shall please to exercise them, as they have to thus give up to these legislatures the selection of juries for the courts of the United States.

There has, probably, never been a legal jury, nor a legal trial by jury, in a single court of the United States, since the adoption of the constitution.

These facts show how much reliance can be placed in written constitutions, to control the action of the government, and preserve the liberties of the people.

If the real trial by jury had been preserved in the courts of the United States—that is, if we had had legal juries, and the jurors had known their rights—it is hardly probable that one tenth of the past legislation of Congress would ever have been enacted, or, at least, that, if enacted, it could have been enforced.

Probably the best mode of appointing jurors would be this: Let the names of all the adult male members of the state, in each township, be kept in a jury box, by the officers of the township; and when a court is to be held for a county or other district, let the officers of a sufficient number of townships be required (without seeing the names) to draw out a name from their boxes respectively, to be returned to the court as a juror. This mode of appointment would guard against collusion and selection; and juries so appointed would be likely to be a fair epitome of “the country.”

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CHAPTER VII.: ILLEGAL JUDGES.

It is a principle of Magna Carta, and therefore of the trial by jury, (for all parts of Magna Carta must be construed together,) that no judge or other officer appointed by the king, shall preside in jury trials, in criminal cases, or “pleas of the crown.”

This provision is contained in the great charters of both John and Henry, and is second in importance only to the provision guaranteeing the trial by jury, of which it is really a part. Consequently, without the observance of this prohibition; there can be no genuine or legal—that is, common law—trial by jury.

At the common law, all officers who held jury trials, whether in civil or criminal cases, were chosen by the people.*

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But previous to Magna Carta, the kings had adopted the practice of sending officers of their own appointment, called justices, into the counties, to hold jury trials in some cases; and Magna Carta authorizes this practice to be continued so far as it relates to three kinds of civil actions, to wit: “novel disseisin, mort de ancestor, and darrein presentment;”* but specially forbids its being extended to criminal cases, or pleas of the crown.

This prohibition is in these words:

“Nullus vicecomes, constabularius, coronator, vel alii balivi nostri, teneant placita coronæ nostræ.” (No sheriff, constable, coroner, or other our bailiffs, shall hold pleas of our crown.)

—John’s Charter, ch. 53. Henry’s ditto, ch. 17.

Some persons seem to have supposed that this was a prohibition merely upon officers bearing the specific names of “sheriffs, constables, coroners and bailiffs,” to hold criminal trials. But such is not the meaning. If it were, the name [159] could be changed, and the thing retained; and thus the prohibition be evaded. The prohibition applies (as will presently be seen) to all officers of the king whatsoever; and it sets up a distinction between officers of the king, (“our bailiffs,”) and officers chosen by the people.

The prohibition upon the king’s justices sitting in criminal trials, is included in the words “vel alii balivi nostri,” (or other our bailiffs.) The word bailiff was anciently a sort of general name for judicial officers and persons employed in and about the administration of justice. In modern times its use, as applied to the higher grades of judicial officers, has been superseded by other words; and it therefore now, more generally, if not universally, signifies an executive or police officer, a servant of courts, rather than one whose functions are purely judicial.

The word is a French word, brought into England by the Normans.

Coke says, “Baylife is a French word, and signifies an officer concerned in the administration of justice of a certain province; and because a sheriff kath an office concerning the administration of justice within his county, or bailiwick, therefore he called his county baliva sua, (his bailiwick.)

“I have heard great question made what the true exposition of this word balivus is. In the statute of Magna Carta, cap. 28, the letter of that statute is, nullus balivus de cætero ponat aliquem ad legem manifestam nec ad juramentum simplici loquela sua sine testibus fidelibus ad hoc inductis.” (No bailiff from henceforth shall put any one to his open law, nor to an oath (of self-exculpation) upon his own simple accusation, or complaint, without faithful witnesses brought in for the same.) “And some have said that balivus in this statute signifieth any judge; for the law must be waged and made before the judge. And this statute (say they) extends to the courts of common pleas, king’s bench, &c., for they must bring with them fideles testes, (faithful witnesses,) &c., and so hath been the usage to this day.”

—1 Coke’s Inst., 168 b.

Coke makes various references, in his margin to Bracton, Fleta, and other authorities, which I have not examined, but which, I presume, support the opinion expressed in this quotation.

Coke also, in another place, under the head of the chapter [160] just cited from Magna Carta, that “no bailiff shall put any man to his open law,” &c., gives the following commentary upon it, from the Mirror of Justices, from which it appears that in the time of Edward I., (1272 to 1307,) this word balivus was understood to include all judicial, as well as all other, officers of the king.

The Mirror says: “The point which forbiddeth that no bailiff put a freeman to his oath without suit, is to be understood in this manner,—that no justice, no minister of the king, nor other steward, nor bailiff, have power to make a freeman make oath, (of self-exculpation,) without the king’s command,* nor receive any plaint, without witnesses present who testify the plaint to be true.”

—Mirror of Justices, ch. 5, sec. 2, p. 257.

Coke quotes this commentary, (in the original French,) and then endorses it in these words:

“By this it appeareth, that under this word balivus, in this act, is comprehended every justice, minister of the king, steward, and bailiff.”

—2 Inst., 44.

Coke also, in his commentary upon this very chapter of Magna Carta, that provides that “no sheriff, constable, coroner, or other our bailiffs, shall hold pleas of our crown,” expresses the opinion that it “is a general law,” (that is, applicable to all officers of the king,) “by reason of the words vel alii balivi nostri, (or other our bailiffs,) under which words are comprehended all judges or justices of any courts of justice.” And he cites a decision in the king’s bench, in the 17th year of Edward I., (1289,) as authority; which decision he calls “a notable and leading judgment.”—2 Inst., 30—1.

And yet Coke, in flat contradiction of this decision, which he quotes with such emphasis and approbation, and in flat contradiction also of the definition he repeatedly gives of the word balivus, showing that it embraced all ministers of the king whatsoever, whether high or low, judicial or executive, fabricates an entirely gratuitous interpretation of this chapter [161] of Magna Carta, and pretends that after all it only required that felonies should be tried before the king’s justices, on account of their superior learning; and that it permitted all lesser offences to be tried before inferior officers, (meaning of course the king’s inferior officers.)—2 Inst., 30.

And thus this chapter of Magna Carta, which, according to his own definition of the word balivus, applies to all officers of the king; and which, according to the common and true definition of the term “pleas of the crown,” applies to all criminal cases without distinction, and which, therefore, forbids any officer or minister of the king to preside in a jury trial in any criminal case whatsoever, he coolly and gratuitously interprets into a mere senseless provision for simply restricting the discretion of the king in giving names to his own officers who should preside at the trials of particular offences; as if the king, who made and unmade all his officers by a word, could not defeat the whole object of the prohibition, by appointing such individuals as he pleased, to try such causes as he pleased, and calling them by such names as he pleased, if he were but permitted to appoint and name such officers at all; and as if it were of the least importance what name an officer bore, whom the king might appoint to a particular duty.*

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Coke evidently gives this interpretation solely because, as he was giving a general commentary on Magna Carta, he was bound to give some interpretation or other to every chapter of it; and for this chapter he could invent, or fabricate, (for it is [163] a sheer fabrication,) no interpretation better suited to his purpose than this. It seems never to have entered his mind, (or if it did, he intended that it should never enter the mind of anybody else,) that the object of the chapter could be to deprive the king of the power of putting his creatures into criminal courts, to pack, cheat, and browbeat juries, and thus maintain his authority by procuring the conviction of those who should transgress his laws, or incur his displeasure.

This example of Coke tends to show how utterly blind, or how utterly corrupt, English judges, (dependent upon the crown and the legislature), have been in regard to everything in Magna Carta, that went to secure the liberties of the people, or limit the power of the government.

Coke’s interpretation of this chapter of Magna Carta is of a piece with his absurd and gratuitous interpretation of the words “nec super eum ibimus, nec super eum mittemus,” which was pointed out in a former article, and by which he attempted to give a judicial power to the king and his judges, where Magna Carta had given it only to a jury. It is also of a piece with his pretence that there was a difference between [164] fine and amercement, and that fines might be imposed by the king, and that juries were required only for fixing amercements.

These are some of the innumerable frauds by which the English people have been cheated out of the trial by jury.

Ex uno disce omnes. From one judge learn the characters of all.*

I give in the note additional and abundant authorities for [165] the meaning ascribed to the word bailiff. The importance of the principle involved will be a sufficient excuse for such an accumulation of authorities as would otherwise be tedious and perhaps unnecessary.*

The foregoing interpretation of the chapter of Magna Carta now under discussion, is corroborated by another chapter of [166] Magna Carta, which specially provides that the king’s justices shall “go through every county” to “take the assizes” (hold jury trials) in three kinds of civil actions, to wit, “novel disseisin, mort de ancestor, and darrein presentment;” but makes no mention whatever of their holding jury trials in criminal cases,—an omission wholly unlikely to be made, if it were [167] designed they should attend the trial of such causes. Besides, the chapter here spoken of (in John’s charter) does not allow these justices to sit alone in jury trials, even in civil actions; but provides that four knights, chosen by the county, shall sit [168] with them to keep them honest. When the king’s justices were known to be so corrupt and servile that the people would not even trust them to sit alone, in jury trials, in civil actions, [169] how preposterous is it to suppose that they would not only suffer them to sit, but to sit alone, in criminal ones.

It is entirely incredible that Magna Carta, which makes such careful provision in regard to the king’s justices sitting in civil actions, should make no provision whatever as to their sitting in criminal trials, if they were to be allowed to sit in them at all. Yet Magna Carta has no provision whatever on the subject.*

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But what would appear to make this matter absolutely certain is, that unless the prohibition that “no bailiff, &c., of ours shall hold pleas of our crown,” apply to all officers of the king, justices as well as others, it would be wholly nugatory for any practical or useful purpose, because the prohibition could be evaded by the king, at any time, by simply changing the titles of his officers. Instead of calling them “sheriffs, coroners, constables and bailiffs,” he could call them “justices,” or anything else he pleased; and this prohibition, so important to the liberty of the people, would then be entirely defeated. The king also could make and unmake “justices” at his pleasure; and if he could appoint any officers whatever to preside over juries in criminal trials, he could appoint any tool that he might at any time find adapted to his purpose. It was as easy to make justices of Jeffreys and Scroggs, as of any other material; and to have prohibited all the king’s officers, except his justices, from presiding in criminal trials, would therefore have been mere fool’s play.

We can all perhaps form some idea, though few of us will be likely to form any adequate idea, of what a different thing [171] the trial by jury would have been in practice, and of what would have been the difference to the liberties of England, for five hundred years last past, had this prohibition of Magna Carta, upon the king’s officers sitting in the trial of criminal cases, been observed.

The principle of this chapter of Magna Carta, as applicable to the governments of the United States of America, forbids that any officer appointed either by the executive or legislative power, or dependent upon them for their salaries, or responsible to them by impeachment, should preside over a jury in criminal trials. To have the trial a legal (that is, a common law) and true trial by jury, the presiding officers must be chosen by the people, and be entirely free from all dependence upon, and all accountability to, the executive and legislative branches of the government.*

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CHAPTER VIII.: THE FREE ADMINISTRATION OF JUSTICE.

The free administration of justice was a principle of the common law; and it must necessarily be a part of every system of government which is not designed to be an engine in the hands of the rich for the oppression of the poor.

In saying that the free administration of justice was a principle of the common law, I mean only that parties were subjected to no costs for jurors, witnesses, writs, or other necessaries for the trial, preliminary to the trial itself. Consequently, no one could lose the benefit of a trial, for the want of means to defray expenses. But after the trial, the plaintiff or defendant was liable to be amerced, (by the jury, of course,) for having troubled the court with the prosecution or defence of an unjust suit.* But it is not likely that the losing party was subjected to an amercement as a matter of course, but only in those cases where the injustice of his cause was so evident as to make him inexcusable in bringing it before the courts.

All the freeholders were required to attend the courts, that they might serve as jurors and witnesses, and do any other service that could legally be required of them; and their attendance was paid for by the state. In other words, their attendance and service at the courts were part of the rents which they paid the state for their lands.

The freeholders, who were thus required always to attend [173] the courts, were doubtless the only witnesses who wereusually required in civil causes. This was owing to the fact that, in those days, when the people at large could neither write nor read, few contracts were put in writing. The expedient adopted for proving contracts, was that of making them in the presence of witnesses, who could afterwards testify to the transactions. Most contracts in regard to lands were made at the courts, in the presence of the freeholders there assembled.*

In the king’s courts it was specially provided by Magna Carta that “justice and right” should not be “sold;” that is, that the king should take nothing from the parties for administering justice.

The oath of a party to the justice of his cause was all that was necessary to entitle him to the benefit of the courts free of all expense; (except the risk of being amerced after the trial, in case the jury should think he deserved it.†)

This principle of the free administration of justice connects itself necessarily with the trial by jury, because a jury could not rightfully give judgment against any man, in either a civil or criminal case, if they had any reason to suppose he had been unable to procure his witnesses.

The true trial by jury would also compel the free administration of justice from another necessity, viz., that of preventing private quarrels; because, unless the government enforced a man’s rights and redressed his wrongs, free of expense to him, a jury would be bound to protect him in taking the law into his own hands. A man has a natural right to enforce his own rights and redress his own wrongs. If one man owe another a debt, and refuse to pay it, the creditor has a natural right to seize sufficient property of the debtor, wherever he [174] can find it, to satisfy the debt. If one man commit a trespass upon the person, property or character of another, the injured party has a natural right, either to chastise the aggressor, or to take compensation for the injury out of his property. But as the government is an impartial party as between these individuals, it is more likely to do exact justice between them than the injured individual himself would do. The government, also, having more power at its command, is likely to right a man’s wrongs more peacefully than the injured party himself could do it. If, therefore, the government will do the work of enforcing a man’s rights, and redressing his wrongs, promptly, and free of expense to him, he is under a moral obligation to leave the work in the hands of the government; but not otherwise. When the government forbids him to enforce his own rights or redress his own wrongs, and deprives him of all means of obtaining justice, except on the condition of his employing the government to obtain it for him, and of paying the government for doing it, the government becomes itself the protector and accomplice of the wrong-doer. If the government will forbid a man to protect his own rights, it is bound to do it for him, free of expense to him. And so long as government refuses to do this, juries, if they knew their duties, would protect a man in defending his own rights.

Under the prevailing system, probably one half of the community are virtually deprived of all protection for their rights, except what the criminal law affords them. Courts of justice, for all civil suits, are as effectually shut against them, as though it were done by bolts and bars. Being forbidden to maintain their own rights by force,—as, for instance, to compel the payment of debts,—and being unable to pay the expenses of civil suits, they have no alternative but submission to many acts of injustice, against which the government is bound either to protect them, free of expense, or allow them to protect themselves.

There would be the same reason in compelling a party to pay the judge and jury for their services, that there is in compelling him to pay the witnesses, or any other necessary charges.*

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This compelling parties to pay the expenses of civil suits is one of the many cases in which government is false to the fundamental principles on which free government is based. What is the object of government, but to protect men’s rights? On what principle does a man pay his taxes to the government, except on that of contributing his proportion towards the necessary cost of protecting the rights of all? Yet, when his own rights are actually invaded, the government, which he contributes to support, instead of fulfilling its implied contract, becomes his enemy, and not only refuses to protect his rights, (except at his own cost,) but even forbids him to do it himself.

All free government is founded on the theory of voluntary association; and on the theory that all the parties to it voluntarily pay their taxes for its support, on the condition of receiving protection in return. But the idea that any poor man would voluntarily pay taxes to build up a government, which will neither protect his rights, (except at a cost which he cannot meet,) nor suffer himself to protect them by such means as may be in his power, is absurd.

Under the prevailing system, a large portion of the lawsuits determined in courts, are mere contests of purses rather than of rights. And a jury, sworn to decide causes “according to the evidence” produced, are quite likely, for aught they themselves can know, to be deciding merely the comparative length of the parties’ purses, rather than the intrinsic strength of their respective rights. Jurors ought to refuse to decide a cause at all, except upon the assurance that all the evidence, necessary [176] to a full knowledge of the cause, is produced. This assurance they can seldom have, unless the government itself produces all the witnesses the parties desire.

In criminal cases, the atrocity of accusing a man of crime, and then condemning him unless he prove his innocence at his own charges, is so evident that a jury could rarely, if ever, be justified in convicting a man under such circumstances.

But the free administration of justice is not only indispensable to the maintenance of right between man and man; it would also promote simplicity and stability in the laws. The mania for legislation would be, in an important degree, restrained, if the government were compelled to pay the expenses of all the suits that grew out of it.

The free administration of justice would diminish and nearly extinguish another great evil,—that of malicious civil suits. It is an old saying, that “multi litigant in foro, non ut aliquid lucrentur, sed ut vexant alios.” (Many litigate in court, not that they may gain anything, but that they may harass others.) Many men, from motives of revenge and oppression, are willing to spend their own money in prosecuting a groundless suit, if they can thereby compel their victims, who are less able than themselves to bear the loss, to spend money in the defence. Under the prevailing system, in which the parties pay the expenses of their suits, nothing but money is necessary to enable any malicious man to commence and prosecute a groundless suit, to the terror, injury, and perhaps ruin, of another man. In this way, a court of justice, into which none but a conscientious plaintiff certainly should ever be allowed to enter, becomes an arena into which any rich and revengeful oppressor may drag any man poorer than himself, and harass, terrify, and impoverish him, to almost any extent. It is a scandal and an outrage, that government should suffer itself to be made an instrument, in this way, for the gratification of private malice. We might nearly as well have no courts of justice, as to throw them open, as we do, for such flagitious uses. Yet the evil probably admits of no remedy except a free administration of justice. Under a free system, plaintiffs could rarely be influenced by motives of this kind; because they could put their victim to little or no expense, neither [177] pending the suit, (which it is the object of the oppressor to do,) nor at its termination. Besides, if the ancient common law practice should be adopted, of amercing a party for troubling the courts with groundless suits, the prosecutor himself would, in the end, be likely to be amerced by the jury, in such a manner as to make courts of justice a very unprofitable place for a man to go to seek revenge.

In estimating the evils of this kind, resulting from the present system, we are to consider that they are not, by any means, confined to the actual suits in which this kind of oppression is practised; but we are to include all those cases in which the fear of such oppression is used as a weapon to compel men into a surrender of their rights.

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CHAPTER IX.: THE CRIMINAL INTENT.

It is a maxim of the common law that there can be no crime without a criminal intent. And it is a perfectly clear principle, although one which judges have in a great measure overthrown in practice, that jurors are to judge of the moral intent of an accused person, and hold him guiltless, whatever his act, unless they find him to have acted with a criminal intent; that is, with a design to do what he knew to be criminal.

This principle is clear, because the question for a jury to determine is, whether the accused be guilty, or not guilty. Guilt is a personal quality of the actor,—not necessarily involved in the act, but depending also upon the intent or motive with which the act was done. Consequently, the jury must find that he acted from a criminal motive, before they can declare him guilty.

There is no moral justice in, nor any political necessity for, punishing a man for any act whatever that he may have committed, if he have done it without any criminal intent. There can be no moral justice in punishing for such an act, because, there having been no criminal motive, there can have been no other motive which justice can take cognizance of, as demanding or justifying punishment. There can be no political necessity for punishing, to warn against similar acts in future, because, if one man have injured another, however unintentionally, he is liable, and justly liable, to a civil suit for damages; and in this suit he will be compelled to make compensation for the injury, notwithstanding his innocence of any intention to injure. He must bear the consequences of his own act, instead of throwing them upon another, however innocent [179] he may have been of any intention to do wrong. And the damages he will have to pay will be a sufficient warning to him not to do the like act again.

If it be alleged that there are crimes against the public, (as treason, for example, or any other resistance to government,) for which private persons can recover no damages, and that there is a political necessity for punishing for such offences, even though the party acted conscientiously, the answer is,—the government must bear with all resistance that is not so clearly wrong as to give evidence of criminal intent. In other words, the government, in all its acts, must keep itself so clearly within the limits of justice, as that twelve men, taken at random, will all agree that it is in the right, or it must incur the risk of resistance, without any power to punish it. This is the mode in which the trial by jury operates to prevent the government from falling into the hands of a party, or a faction, and to keep it within such limits as all, or substantially all, the people are agreed that it may occupy.

This necessity for a criminal intent, to justify conviction, is proved by the issue which the jury are to try, and the verdict they are to pronounce. The “issue” they are to try is, “guilty,” or “not guilty.” And those are the terms they are required to use in rendering their verdicts. But it is a plain falsehood to say that a man is “guilty,” unless he have done an act which he knew to be criminal.

This necessity for a criminal intent—in other words, for guilt—as a preliminary to conviction, makes it impossible that a man can be rightfully convicted for an act that is intrinsically innocent, though forbidden by the government; because guilt is an intrinsic quality of actions and motives, and not one that can be imparted to them by arbitrary legislation. All the efforts of the government, therefore, to “make offences by statute,” out of acts that are not criminal by nature, must necessarily be ineffectual, unless a jury will declare a man “guilty” for an act that is really innocent.

The corruption of judges, in their attempts to uphold the arbitrary authority of the government, by procuring the conviction of individuals for acts innocent in themselves, and forbidden only by some tyrannical statute, and the commission [180] of which therefore indicates no criminal intent, is very apparent.

To accomplish this object, they have in modern times held it to be unnecessary that indictments should charge, as by the common law they were required to do, that an act was done “wickedly,” “feloniously,” “with malice aforethought,” or in any other manner that implied a criminal intent, without which there can be no criminality; but that it is sufficient to charge simply that it was done “contrary to the form of the statute in such case made and provided.” This form of indictment proceeds plainly upon the assumption that the government is absolute, and that it has authority to prohibit any act it pleases, however innocent in its nature the act may be. Judges have been driven to the alternative of either sanctioning this new form of indictment, (which they never had any constitutional right to sanction,) or of seeing the authority of many of the statutes of the government fall to the ground; because the acts forbidden by the statutes were so plainly innocent in their nature, that even the government itself had not the face to allege that the commission of them implied or indicated any criminal intent.

To get rid of the necessity of showing a criminal intent, and thereby further to enslave the people, by reducing them to the necessity of a blind, unreasoning submission to the arbitrary will of the government, and of a surrender of all right, on their own part, to judge what are their constitutional and natural rights and liberties, courts have invented another idea, which they have incorporated among the pretended maxims, upon which they act in criminal trials, viz., that “ignorance of the law excuses no one.” As if it were in the nature of things possible that there could be an excuse more absolute and complete. What else than ignorance of the law is it that excuses persons under the years of discretion, and men of imbecile minds? What else than ignorance of the law is it that excuses judges themselves for all their erroneous decisions? Nothing. They are every day committing errors, which would be crimes, but for their ignorance of the law. And yet these same judges, who claim to be learned in the law, and who yet could not hold their offices for a day, but for the [181] allowance which the law makes for their ignorance, are continually asserting it to be a “maxim” that “ignorance of the law excuses no one;” (by which, of course, they really mean that it excuses no one but themselves; and especially that it excuses no unlearned man, who comes before them charged with crime.)

This preposterous doctrine, that “ignorance of the law excuses no one,” is asserted by courts because it is an indispensable one to the maintenance of absolute power in the government. It is indispensable for this purpose, because, if it be once admitted that the people have any rights and liberties which the government cannot lawfully take from them, then the question arises in regard to every statute of the government, whether it be law, or not; that is, whether it infringe, or not, the rights and liberties of the people. Of this question every man must of course judge according to the light in his own mind. And no man can be convicted unless the jury find, not only that the statute is law,—that it does not infringe the rights and liberties of the people,—but also that it was so clearly law, so clearly consistent with the rights and liberties of the people, as that the individual himself, who transgressed it, knew it to be so, and therefore had no moral excuse for transgressing it. Governments see that if ignorance of the law were allowed to excuse a man for any act whatever, it must excuse him for transgressing all statutes whatsoever, which he himself thinks inconsistent with his rights and liberties. But such a doctrine would of course be inconsistent with the maintenance of arbitrary power by the government; and hence governments will not allow the plea, although they will not confess their true reasons for disallowing it.

The only reasons, (if they deserve the name of reasons), that I ever knew given for the doctrine that ignorance of the law excuses no one, are these:

1. “The reason for the maxim is that of necessity. It prevails, ‘not that all men know the law, but because it is an excuse which every man will make, and no man can tell how to confute him.’—Selden, (as quoted in the 2d edition of Starkie on Slander, Prelim. Disc., p. 140, note.)”

—Law Magazine, (London,) vol. 27, p. 97.

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This reason impliedly admits that ignorance of the law is, intrinsically, an ample and sufficient excuse for a crime; and that the excuse ought to be allowed, if the fact of ignorance could but be ascertained. But it asserts that this fact is incapable of being ascertained, and that therefore there is a necessity for punishing the ignorant and the knowing—that is, the innocent and the guilty—without discrimination.

This reason is worthy of the doctrine it is used to uphold; as if a plea of ignorance, any more than any other plea, must necessarily be believed simply because it is urged; and as if it were not a common and every-day practice of courts and juries, in both civil and criminal cases, to determine the mental capacity of individuals; as, for example, to determine whether they are of sufficient mental capacity to make reasonable contracts; whether they are lunatic; whether they are compotes mentis, “of sound mind and memory,” &c. &c. And there is obviously no more difficulty in a jury’s determining whether an accused person knew the law in a criminal case, than there is in determining any of these other questions that are continually determined in regard to a man’s mental capacity. For the question to be settled by the jury is not whether the accused person knew the particular penalty attached to his act, (for at common law no one knew what penalty a jury would attach to an offence,) but whether he knew that his act was intrinsically criminal. If it were intrinsically criminal, it was criminal at common law. If it was not intrinsically criminal, it was not criminal at common law. (At least, such was the general principle of the common law. There may have been exceptions in practice, owing to the fact that the opinions of men, as to what was intrinsically criminal, may not have been in all cases correct.)

A jury, then, in judging whether an accused person knew his act to be illegal, were bound first to use their own judgments, as to whether the act were intrinsically criminal. If their own judgments told them the act was intrinsically and clearly criminal, they would naturally and reasonably infer that the accused also understood that it was intrinsically criminal, (and consequently illegal,) unless it should appear that he was either below themselves in the scale of intellect, or had [183] had less opportunities of knowing what acts were criminal. In short, they would judge, from any and every means they might have of judging; and if they had any reasonable doubt that he knew his act to be criminal in itself, they would be bound to acquit him.

The second reason that has been offered for the doctrine that ignorance of the law excuses no one, is this:

“Ignorance of the municipal law of the kingdom, or of the penalty thereby inflicted on offenders, doth not excuse any that is of the age of discretion and compos mentis, from the penalty of the breach of it; because every person, of the age of discretion and compos mentis, is bound to know the law, and presumed to do so. Ignorantia eorum, quæ quis scire tenetur non excusat.” (Ignorance of those things which every one is bound to know, does not excuse.)

—1 Hale’s Pleas of the Crown, 42. Doctor and Student, Dialog. 2, ch. 46. Law Magazine, (London,) vol. 27, p. 97.

The sum of this reason is, that ignorance of the law excuses no one, (who is of the age of discretion and is compos mentis,) because every such person “is bound to know the law.” But this is giving no reason at all for the doctrine, since saying that a man “is bound to know the law,” is only saying, in another form, that “ignorance of the law does not excuse him.” There is no difference at all in the two ideas. To say, therefore, that “ignorance of the law excuses no one, because every one is bound to know the law,” is only equivalent to saying that “ignorance of the law excuses no one, because ignorance of the law excuses no one.” It is merely reässerting the doctrine, without giving any reason at all.

And yet these reasons, which are really no reasons at all, are the only ones, so far as I know, that have ever been offered for this absurd and brutal doctrine.

The idea suggested, that “the age of discretion” determines the guilt of a person,—that there is a particular age, prior to which all persons alike should be held incapable of knowing any crime, and subsequent to which all persons alike should be held capable of knowing all crimes,—is another of this most ridiculous nest of ideas. All mankind acquire their knowledge of crimes, as they do of other things, gradually. Some they learn at an early age; others not till a later one. One individual [184] acquires a knowledge of crimes, as he does of arithmetic, at an earlier age than others do. And to apply the same presumption to all, on the ground of age alone, is not only gross injustice, but gross folly. A universal presumption might, with nearly or quite as much reason, be founded upon weight, or height, as upon age.*

This doctrine, that “ignorance of the law excuses no one,” is constantly repeated in the form that “every one is bound to know the law.” The doctrine is true in civil matters, especially in contracts, so far as this: that no man, who has the ordinary capacity to make reasonable contracts, can escape the consequences of his own agreement, on the ground that he did not know the law applicable to it. When a man makes a contract, he gives the other party rights; and he must of necessity judge for himself, and take his own risk, as to what those rights are,—otherwise the contract would not be binding, and men could not make contracts that would convey rights to each other. Besides, the capacity to make reasonable contracts, [185] implies and includes a capacity to form a reasonable judgment as to the law applicable to them. But in criminal matters, where the question is one of punishment, or not; where no second party has acquired any right to have the crime punished, unless it were committed with criminal intent, (but only to have it compensated for by damages in a civil suit;) and when the criminal intent is the only moral justification for the punishment, the principle does not apply, and a man is bound to know the law only as well as he reasonably may. The criminal law requires neither impossibilities nor extraordinaries of any one. It requires only thoughtfulness and a good conscience. It requires only that a man fairly and properly use the judgment he possesses, and the means he has of learning his duty. It requires of him only the same care to know his duty in regard to the law, that he is morally bound to use in other matters of equal importance. And this care it does require of him. Any ignorance of the law, therefore, that is unnecessary, or that arises from indifference or disregard of one’s duty, is no excuse. An accused person, therefore, may be rightfully held responsible for such a knowledge of the law as is common to men in general, having no greater natural capacities than himself, and no greater opportunities for learning the law. And he can rightfully be held to no greater knowledge of the law than this. To hold him responsible for a greater knowledge of the law than is common to mankind, when other things are equal, would be gross injustice and cruelty. The mass of mankind can give but little of their attention to acquiring a knowledge of the law. Their other duties in life forbid it. Of course, they cannot investigate abstruse or difficult questions. All that can rightfully be required of each of them, then, is that he exercise such a candid and conscientious judgment as it is common for mankind generally to exercise in such matters. If he have done this, it would be monstrous to punish him criminally for his errors; errors not of conscience, but only of judgment. It would also be contrary to the first principles of a free government (that is, a government formed by voluntary association) to punish men in such cases, because it would be absurd to suppose that any man would voluntarily assist to establish or support a government [186] that would punish himself for acts which he himself did not know to be crimes. But a man may reasonably unite with his fellow-men to maintain a government to punish those acts which he himself considers criminal, and may reasonably acquiesce in his own liability to be punished for such acts. As those are the only grounds on which any one can be supposed to render any voluntary support to a government, it follows that a government formed by voluntary association, and of course having no powers except such as all the associates have consented that it may have, can have no power to punish a man for acts which he did not himself know to be criminal.

The safety of society, which is the only object of the criminal law, requires only that those acts which are understood by mankind at large to be intrinsically criminal, should be punished as crimes. The remaining few (if there are any) may safely be left to go unpunished. Nor does the safety of society require that any individuals, other than those who have sufficient mental capacity to understand that their acts are criminal, should be criminally punished. All others may safely be left to their liability, under the civil law, to compensate for their unintentional wrongs.

The only real object of this absurd and atrocious doctrine, that “ignorance of the law (that is, of crime) excuses no one,” and that “every one is bound to know the criminal law,” (that is, bound to know what is a crime,) is to maintain an entirely arbitrary authority on the part of the government, and to deny to the people all right to judge for themselves what their own rights and liberties are. In other words, the whole object of the doctrine is to deny to the people themselves all right to judge what statutes and other acts of the government are consistent or inconsistent with their own rights and liberties; and thus to reduce the people to the condition of mere slaves to a despotic power, such as the people themselves would never have voluntarily established, and the justice of whose laws the people themselves cannot understand.

Under the true trial by jury all tyranny of this kind would be abolished. A jury would not only judge what acts were really criminal, but they would judge of the mental capacity of an accused person, and of his opportunities for understanding [187] the true character of his conduct. In short, they would judge of his moral intent from all the circumstances of the case, and acquit him, if they had any reasonable doubt that he knew that he was committing a crime.*

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CHAPTER X.: MORAL CONSIDERATIONS FOR JURORS.

The trial by jury must, if possible, be construed to be such that a man can rightfully sit in a jury, and unite with his fellows in giving judgment. But no man can rightfully do this, unless he hold in his own hand alone a veto upon any judgment or sentence whatever to be rendered by the jury against a defendant, which veto he must be permitted to use according to his own discretion and conscience, and not bound to use according to the dictation of either legislatures or judges.

The prevalent idea, that a juror may, at the mere dictation of a legislature or a judge, and without the concurrence of his own conscience or understanding, declare a man “guilty,” and thus in effect license the government to punish him; and that the legislature or the judge, and not himself, has in that case all the moral responsibility for the correctness of the principles on which the judgment was rendered, is one of the many gross impostures by which it could hardly have been supposed that any sane man could ever have been deluded, but which governments have nevertheless succeeded in inducing the people at large to receive and act upon.

As a moral proposition, it is perfectly self-evident that, unless juries have all the legal rights that have been claimed for them in the preceding chapters,—that is, the rights of judging what the law is, whether the law be a just one, what evidence is admissible, what weight the evidence is entitled to, whether an act were done with a criminal intent, and the right also to limit the sentence, free of all dictation from any quarter,—they have no moral right to sit in the trial at all, and cannot do so without making themselves accomplices in any injustice that they may have reason to believe may result from their [190] verdict. It is absurd to say that they have no moral responsibility for the use that may be made of their verdict by the government, when they have reason to suppose it will be used for purposes of injustice.

It is, for instance, manifestly absurd to say that jurors have no moral responsibility for the enforcement of an unjust law, when they consent to render a verdict of guilty for the transgression of it; which verdict they know, or have good reason to believe, will be used by the government as a justification for inflicting a penalty.

It is absurd, also, to say that jurors have no moral responsibility for a punishment inflicted upon a man against law, when, at the dictation of a judge as to what the law is, they have consented to render a verdict against their own opinions of the law.

It is absurd, too, to say that jurors have no moral responsibility for the conviction and punishment of an innocent man, when they consent to render a verdict against him on the strength of evidence, or laws of evidence, dictated to them by the court, if any evidence or laws of evidence have been excluded, which they (the jurors) think ought to have been admitted in his defence.

It is absurd to say that jurors have no moral responsibility for rendering a verdict of “guilty” against a man, for an act which he did not know to be a crime, and in the commission of which, therefore, he could have had no criminal intent, in obedience to the instructions of courts that “ignorance of the law (that is, of crime) excuses no one.”

It is absurd, also, to say that jurors have no moral responsibility for any cruel or unreasonable sentence that may be inflicted even upon a guilty man, when they consent to render a verdict which they have reason to believe will be used by the government as a justification for the infliction of such sentence.

The consequence is, that jurors must have the whole case in their hands, and judge of law, evidence, and sentence, or they incur the moral responsibility of accomplices in any injustice which they have reason to believe will be done by the government on the authority of their verdict.

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The same principles apply to civil cases as to criminal. If a jury consent, at the dictation of the court, as to either law or evidence, to render a verdict, on the strength of which they have reason to believe that a man’s property will be taken from him and given to another, against their own notions of justice, they make themselves morally responsible for the wrong.

Every man, therefore, ought to refuse to sit in a jury, and to take the oath of a juror, unless the form of the oath be such as to allow him to use his own judgment, on every part of the case, free of all dictation whatsoever, and to hold in his own hand a veto upon any verdict that can be rendered against a defendant, and any sentence that can be inflicted upon him, even if he be guilty.

Of course, no man can rightfully take an oath as juror, to try a case “according to law,” (if by law be meant anything other than his own ideas of justice,) nor “according to the law and the evidence, as they shall be given him.” Nor can he rightfully take an oath even to try a case “according to the evidence,” because in all cases he may have good reason to believe that a party has been unable to produce all the evidence legitimately entitled to be received. The only oath which it would seem that a man can rightfully take as juror, in either a civil or criminal case, is, that he “will try the case according to his conscience.” Of course, the form may admit of variation, but this should be the substance. Such, we have seen, were the ancient common law oaths.

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CHAPTER XI.: AUTHORITY OF MAGNA CARTA.

Probably no political compact between king and people was ever entered into in a manner to settle more authoritatively the fundamental law of a nation, than was Magna Carta. Probably no people were ever more united and resolute in demanding from their king a definite and unambiguous acknowledgment of their rights and liberties, than were the English at that time. Probably no king was ever more completely stripped of all power to maintain his throne, and at the same time resist the demands of his people, than was John on the 15th day of June, 1215. Probably no king every consented, more deliberately or explicitly, to hold his throne subject to specific and enumerated limitations upon his power, than did John when he put his seal to the Great Charter of the Liberties of England. And if any political compact between king and people was ever valid to settle the liberties of the people, or to limit the power of the crown, that compact is now to be found in Magna Carta. If, therefore, the constitutional authority of Magna Carta had rested solely upon the compact of John with his people, that authority would have been entitled to stand forever as the supreme law of the land, unless revoked by the will of the people themselves.

But the authority of Magna Carta does not rest alone upon the compact with John. When, in the next year, (1216,) his son, Henry III., came to the throne, the charter was ratified by him, and again in 1217, and again in 1225, in substantially the same form, and especially without allowing any new powers, legislative, judicial, or executive, to the king or his judges, and without detracting in the least from the powers of the jury. And from the latter date to this, the charter has remained unchanged.

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In the course of two hundred years the charter was confirmed by Henry and his successors more than thirty times. And although they were guilty of numerous and almost continual breaches of it, and were constantly seeking to evade it, yet such were the spirit, vigilance and courage of the nation, that the kings held their thrones only on the condition of their renewed and solemn promises of observance. And it was not until 1429, (as will be more fully shown hereafter,) when a truce between themselves, and a formal combination against the mass of the people, had been entered into, by the king, the nobility, and the “forty shilling freeholders,” (a class whom Mackintosh designates as “a few freeholders then accounted wealthy,”*) by the exclusion of all others than such freeholders from all voice in the election of knights to represent the counties in the House of Commons, that a repetition of these confirmations of Magna Carta ceased to be demanded and obtained.†

The terms and the formalities of some of these “confirmations” make them worthy of insertion at length.

Hume thus describes one which took place in the 38th year of Henry III. (1253):

“But as they (the barons) had experienced his (the king’s) frequent breach of promise, they required that he should ratify the Great Charter in a manner still more authentic and solemn than any which he had hitherto employed. All the prelates and abbots were assembled. They held burning tapers in their hands. The Great Charter was read before them. They denounced the sentence of excommunication against every one who should thenceforth violate that fundamental law. They threw their tapers on the ground, and exclaimed, May the soul of every one who incurs this sentence so stink and corrupt in hell! The king bore a part in this ceremony, and subjoined, ‘So help me God! I will keep all these articles inviolate, as I am a man, as I am a Christian, as I am a knight, and as I am a king crowned and anointed.’ ”

—Hume, ch. 12. See also [194] Blackstone’s Introd. to the Charters. Black. Law Tracts, Oxford ed., p. 332. Mackintosh’s Hist. of Eng., ch. 3. Lardner’s Cab. Cyc., vol. 45, p. 233-4.

The following is the form of “the sentence of excommunication” referred to by Hume:

“The Sentence of Curse, Given by the Bishops, against the Breakers of the Charters.

“The year of our Lord a thousand two hundred and fifty-three, the third day of May, in the great Hall of the King at Westminster, in the presence, and by the assent, of the Lord Henry, by the Grace of God King of England, and the Lords Richard, Earl of Cornwall, his brother, Roger (Bigot) Earl of Norfolk and Suffolk, marshal of England, Humphrey, Earl of Hereford, Henry, Earl of Oxford, John, Earl of Warwick, and other estates of the Realm of England: We, Boniface, by the mercy of God Archbishop of Canterbury, Primate of all England, F. of London, H. of Ely, S. of Worcester, E. of Lincoln, W. of Norwich, P. of Hereford, W. of Salisbury, W. of Durham, R. of Exeter, M. of Carlisle, W. of Bath, E. of Rochester, T. of Saint David’s, Bishops, apparelled in Pontificals, with tapers burning, against the breakers of the Church’s Liberties, and of the Liberties or free customs of the Realm of England, and especially of those which are contained in the Charter of the Common Liberties of the Realm, and the Charter of the Forest, have solemnly denounced the sentence of Excommunication in this form. By the authority of Almighty God, the Father, the Son, and the Holy Ghost, and of the glorious Mother of God, and perpetual Virgin Mary, of the blessed Apostles Peter and Paul, and of all apostles, of the blessed Thomas, Archbishop and Martyr, and of all martyrs, of blessed Edward of England, and of all Confessors and virgins, and of all the saints of heaven: We excommunicate, accurse, and from the thresholds (liminibus) of our Holy Mother the Church, We sequester, all those that hereafter willingly and maliciously deprive or spoil the Church of her right: And all those that by any craft or wiliness do violate, break, diminish, or change the Church’s Liberties, or the ancient approved customs of the Realm, and especially the Liberties and free Customs contained in the Charters of the Common Liberties, and of the Forest, conceded by our Lord the King, to Archbishops, Bishops, and other Prelates of England; and likewise to the Earls, Barons, Knights, and other Freeholders of the Realm: And all that secretly, or openly, by deed, word, or counsel, do make statutes, or observe them being made, and that bring in Customs, or keep them when they be brought in, against the said [195] Liberties, or any of them, the Writers and Counsellors of said statutes, and the Executors of them, and all those that shall presume to judge according to them. All and every which persons before mentioned, that wittingly shall commit anything of the premises, let them well know that they incur the aforesaid sentence, ipso facto, (i. e., upon the deed being done.) And those that ignorautly do so, and be admonished, except they reform themselves within fifteen days after the time of the admonition, and make full satisfaction for that they have done, at the will of the ordinary, shall be from that time forth included in the same sentence. And with the same sentence we burden all those that presume to perturb the peace of our sovereign Lord the King, and of the Realm. To the perpetual memory of which thing, We, the aforesaid Prelates, have put our seals to these presents.”

—Statutes of the Realm, vol. 1, p. 6. Ruffhead’s Statutes, vol. 1, p. 20.

One of the Confirmations of the Charters, by Edward I., was by statute, in the 25th year of his reign, (1297,) in the following terms. The statute is usually entitled “Confirmatio Cartarum,” (Confirmation of the Charters.)

Ch. 1. “Edward, by the Grace of God, King of England, Lord of Ireland, and Duke of Guyan, To all those that these presents shall hear or see, Greeting. Know ye, that We, to the honor of God, and of Holy Church, and to the profit of our Realm, have granted, for us and our heirs, that the Charter of Liberties, and the Charter of the Forest, which were made by common assent of all the Realm, in the time of King Henry our Father, shall be kept in every point without breach. And we will that the same Charters shall be sent under our seal, as well to our justices of the Forest, as to others, and to all Sheriffs of shires, and to all our other officers, and to all our cities throughout the Realm, together with our writs, in the which it shall be contained, that they cause the aforesaid Charters to be published, and to declare to the people that We have confirmed them at all points; and to our Justices, Sheriffs, Mayors, and other ministers, which under us have the Laws of our Land to guide, that they allow the same Charters, in all their points, in pleas before them, and in judgment; that is, to wit, the Great Charter as the Common Law, and the Charter of the Forest for the wealth of our Realm.

Ch. 2. “And we will that if any judgment be given from henceforth contrary to the points of the charters aforesaid by the justices, or by any others our ministers that hold plea before them, against the points of the Charters, it shall be undone and holden for naught.

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Ch. 3. “And we will, that the same Charters shall be sent, under our seal, to Cathedral Churches throughout our Realm, there to remain, and shall be read before the people two times in the year.

Ch. 4. “And that all Archbishops and Bishops shall pronounce the sentence of excommunication against all those that by word, deed, or counsel, do contrary to the foresaid charters, or that in any point break or undo them. And that the said Curses be twice a year denounced and published by the prelates aforesaid. And if the same prelates, or any of them, be remiss in the denunciation of the said sentences, the Archbishops of Canterbury and York, for the time being, shall compel and distrain them to make the denunciation in the form aforesaid.”—St. 25 Edward I., (1297.) Statutes of the Realm, vol. 1, p. 123.

It is unnecessary to repeat the terms of the various confirmations, most of which were less formal than those that have been given, though of course equally authoritative. Most of them are brief, and in the form of a simple statute, or promise, to the effect that “The Great Charter, and the Charter of the Forest, shall be firmly kept and maintained in all points.” They are to be found printed with the other statutes of the realm. One of them, after having “again granted, renewed and confirmed” the charters, requires as follows:

“That the Charters be delivered to every sheriff of England under the king’s seal, to be read four times in the year before the people in the full county,” (that is, at the county court,) “that is, to wit, the next county (court) after the feast of Saint Michael, and the next county (court) after Christmas, and at the next county (court) after Easter, and at the next county (court) after the feast of Saint John.”

—28 Edward I., ch. 1, (1300.)

Lingard says, “The Charter was ratified four times by Henry III., twice by Edward I., fifteen times by Edward III., seven times by Richard II., six times by Henry IV., and once by Henry V.;” making thirty-five times in all.

—3 Lingard, 50, note, Philad. ed.

Coke says Magna Carta was confirmed thirty-two times.—Preface to 2 Inst., p. 6.

Lingard calls these “thirty-five successive ratifications” of the charter, “a sufficient proof how much its provisions were [197] abhorred by the sovereign, and how highly they were prized by the nation.”

—3 Lingard, 50.

Mackintosh says, “For almost five centuries (that is, until 1688) it (Magna Carta) was appealed to as the decisive authority on behalf of the people, though commonly so far only as the necessities of each case demanded.”

—Mackintosh’s Hist. of Eng. ch. 3. 45 Lardner’s Cab. Cyc., 221.

Coke, who has labored so hard to overthrow the most vital principles of Magna Carta, and who, therefore, ought to be considered good authority when he speaks in its favor,* says:

“It is called Magna Carta, not that it is great in quantity, for there be many voluminous charters commonly passed, specially in these later times, longer than this is; nor comparatively in respect that it is greater than Charta de Foresta, but in respect of the great importance and weightiness of the matter, as hereafter shall appear; and likewise for the same cause Charta de Foresta; and both of them are called Magnæ Chartæ Libertatum Angliæ, (The Great Charters of the Liberties of England.) . .

“And it is also called Charta Libertatum regni, (Charter of the Liberties of the kingdom;) and upon great reason it is so called of the effect, quia liberos facit, (because it makes men free.) Sometime for the same cause (it is called) communis libertas, (common liberty,) and le chartre des franchises, (the charter of franchises.) . .

“It was for the most part declaratory of the principal grounds of the fundamental laws of England, and for the residue it is additional to supply some defects of the common law. . .

“Also, by the said act of 25 Edward I., (called Confirmatio Chartarum,) it is adjudged in parliament that the Great Charter and the Charter of the Forest shall be taken as the common law. . .

“They (Magna Carta and Carta de Foresta) were, for the most part, but declarations of the ancient common laws of England, to the observation and keeping whereof, the king was bound and sworn. . .

“After the making of Magna Charta, and Charta de Foresta, divers learned men in the laws, that I may use the words of the record, kept schools of the law in the city of London, and taught such as resorted to them the laws of the realm, [198] taking their foundation of Magna Charta and Charta de Foresta.

“And the said two charters have been confirmed, established, and commanded to be put in execution by thirty-two several acts of parliament in all.

“This appeareth partly by that which hath been said, for that it hath so often been confirmed by the wise providence of so many acts of parliament.

“And albeit judgments in the king’s courts are of high regard in law, and judicia (judgments) are accounted as jurisdicta, (the speech of the law itself,) yet it is provided by act of parliament, that if any judgment be given contrary to any of the points of the Great Charter and Charta de Foresta, by the justices, or by any other of the king’s ministers, &c., it shall be undone, and holden for naught.

“And that both the said charters shall be sent under the great seal to all cathedral churches throughout the realm, there to remain, and shall be read to the people twice every year.

“The highest and most binding laws are the statutes which are established by parliament; and by authority of that highest court it is enacted (only to show their tender care of Magna Carta and Carta de Foresta) that if any statute be made contrary to the Great Charter, or the Charter of the Forest, that shall be holden for none; by which words all former statutes made against either of those charters are now repealed; and the nobles and great officers were to be sworn to the observation of Magna Charta and Charta de Foresta.

“Magna fuit quondam magnæ reverentia chartæ.” (Great was formerly the reverence for Magna Carta.)

—Coke’s Proem to 2 Inst., p. 1 to 7.

Coke also says, “All pretence of prerogative against Magna Charta is taken away.”—2 Inst., 36.

He also says, “That after this parliament (52 Henry III., in 1267) neither Magna Carta nor Carta de Foresta was ever attempted to be impugned or questioned.”—2 Inst., 102.*

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To give all the evidence of the authority of Magna Carta, it would be necessary to give the constitutional history of England since the year 1215. This history would show that Magna Carta, although continually violated and evaded, was still acknowledged [200] as law by the government, and was held up by the people as the great standard and proof of their rights and liberties. [201] It would show also that the judicial tribunals, whenever it suited their purposes to do so, were in the habit of referring to Magna Carta as authority, in the same manner, and with the same real or pretended veneration, with which American courts now refer to the constitution of the United States, or the constitutions of the states. And, what is equally to the point, it would show that these same tribunals, the mere tools of kings and parliaments, would resort to the same artifices of assumption, precedent, construction, and false interpretation, to evade the requirements of Magna Carta, and to emasculate it of all its power for the preservation of liberty, that are resorted to by American courts to accomplish the same work on our American constitutions.

I take it for granted, therefore, that if the authority of Magna Carta had rested simply upon its character as a compact between the king and the people, it would have been forever binding upon the king, (that is, upon the government, for the king was the government,) in his legislative, judicial, and executive character; and that there was no constitutional posibility of his escaping from its restraints, unless the people themselves should freely discharge him from them.

But the authority of Magna Carta does not rest, either wholly or mainly, upon its character as a compact. For centuries before the charter was granted, its main principles constituted “the Law of the Land,”—the fundamental and constitutional law of the realm, which the kings were sworn to maintain. And the principal benefit of the charter was, that it contained a written description and acknowledgment, by the king himself, of what the constitutional law of the kingdom was, which his coronation oath bound him to observe. Previous to Magna Carta, this constitutional law rested mainly in precedents, customs, and the memories of the people. And if the king could but make one innovation upon this law, without arousing resistance, and being compelled to retreat from his usurpation, he would cite that innovation as a precedent for another act of the same kind; next, assert a custom; and, finally, raise a controversy as to what the Law of the Land really was. The great object of the barons and people, in demanding from the king a written description and acknowledgment [202] of the Law of the Land, was to put an end to all disputes of this kind, and to put it out of the power of the king to plead any misunderstanding of the constitutional law of the kingdom. And the charter, no doubt, accomplished very much in this way. After Magna Carta, it required much more audacity, cunning, or strength, on the part of the king, than it had before, to invade the people’s liberties with impunity. Still, Magna Carta, like all other written constitutions, proved inadequate to the full accomplishment of its purpose; for when did a parchment ever have power adequately to restrain a government, that had either cunning to evade its requirements, or strength to overcome those who attempted its defence? The work of usurpation, therefore, though seriously checked, still went on, to a great extent, after Magna Carta. Innovations upon the Law of the Land are still made by the government. One innovation was cited as a precedent; precedents made customs; and customs became laws, so far as practice was concerned; until the government, composed of the king, the high functionaries of the church, the nobility, a House of Commons representing the “forty shilling freeholders,” and a dependent and servile judiciary, all acting in conspiracy against the mass of the people, became practically absolute, as it is at this day.

As proof that Magna Carta embraced little else than what was previously recognized as the common law, or Law of the Land, I repeat some authorities that have been already cited.

Crabbe says, “It is admitted on all hands that it (Magna Carta) contains nothing but what was confirmatory of the common law and the ancient usages of the realm; and is, properly speaking, only an enlargement of the charter of Henry I. and his successors.”

—Crabbe’s Hist. of the Eng. Law, p. 127.

Blackstone says, “It is agreed by all our historians that the Great Charter of King John was, for the most part, compiled from the ancient customs of the realm, or the laws of Edward the Confessor; by which they mean the old common law which was established under our Saxon princes.”

—Blackstone’s Introd. to the Charters. See Blackstone’s Law Tracts, Oxford ed., p. 289.

Coke says, “The common law is the most general and ancient [203] law of the realm. . . The common law appeareth in the statute of Magna Carta, and other ancient statutes, (which for the most part are affirmations of the common law,) in the original writs, in judicial records, and in our books of terms and years.”

—1 Inst., 115 b.

Coke also says, “It (Magna Carta) was for the most part declaratory of the principal grounds of the fundamental laws of England, and for the residue it was additional to supply some defects of the common law. . . They (Magna Carta and Carta de Foresta) were, for the most part, but declarations of the ancient common laws of England, to the observation and keeping whereof the king was bound and sworn.”

—Preface to 2 Inst., p. 3 and 5.

Hume says, “We may now, from the tenor of this charter, (Magna Carta,) conjecture what those laws were of King Edward, (the Confessor,) which the English nation during so many generations still desired, with such an obstinate perseverance, to have recalled and established. They were chiefly these latter articles of Magna Carta; and the barons who, at the beginning of these commotions, demanded the revival of the Saxon laws, undoubtedly thought that they had sufficiently satisfied the people, by procuring them this concession, which comprehended the principal objects to which they had so long aspired.”

—Hume, ch. 11.

Edward the First confessed that the Great Charter was substantially identical with the common law, as far as it went, when he commanded his justices to allow “the Great Charter as the Common Law,” “in pleas before them, and in judgment,” as has been already cited in this chapter.—25 Edward I., ch. 1, (1297.)

In conclusion of this chapter, it may be safely asserted that the veneration, attachment, and pride, which the English nation, for more than six centuries, have felt towards Magna Carta, are in their nature among the most irrefragable of all proofs that it was the fundamental law of the land, and constitutionally binding upon the government; for, otherwise, it would have been, in their eyes, an unimportant and worthless thing. What those sentiments were I will use the words of others to describe,—the words, too, of men, who, like all modern authors who have written on the same topic, had utterly inadequate ideas of the true character of the instrument on which they lavished their eulogiums.

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Hume, speaking of the Great Charter and the Charter of the Forest, as they were confirmed by Henry III., in 1217, says:

“Thus these famous charters were brought nearly to the shape in which they have ever since stood; and they were, during many generations, the peculiar favorites of the English nation, and esteemed the most sacred rampart to national liberty and independence. As they secured the rights of all orders of men, they were anxiously defended by all, and became the basis, in a manner, of the English monarchy, and a kind of original contract, which both limited the authority of the king and ensured the conditional allegiance of his subjects. Though often violated, they were still claimed by the nobility and people; and, as no precedents were supposed valid that infringed them, they rather acquired than lost authority, from the frequent attempts made against them in several ages, by regal and arbitrary power.”

—Hume, ch. 12.

Mackintosh says, “It was understood by the simplest of the unlettered age for whom it was intended. It was remembered by them. . . For almost five centuries it was appealed to as the decisive authority on behalf of the people. . . To have produced it, to have preserved it, to have matured it, constitute the immortal claim of England on the esteem of mankind. Her Bacons and Shakspeares, her Miltons and Newtons, with all the truth which they have revealed, and all the generous virtues which they have inspired, are of inferior value when compared with the subjection of men and their rulers to the principles of justice; if, indeed, it be not more true that these mighty spirits could not have been formed except under equal laws, nor roused to full activity without the influence of that spirit which the Great Charter breathed over their forefathers.”

—Mackintosh’s Hist. of Eng., ch. 3.*

Of the Great Charter, the trial by jury is the vital part, and the only part that places the liberties of the people in their own keeping. Of this Blackstone says:

“The trial by jury, or the country, per patriam, is also that trial by the peers of every Englishman, which, as the grand bulwark of his liberties, is secured to him by the Great Charter; nullus liber homo capiatur, vel imprisonetur, aut exuletur, aut aliquo modo destruatur, nisi per legale judicium parium suorum, vel per legem terrae. . .

The liberties of England cannot but subsist so long as this palladium remains sacred and inviolate, not only from all [205] open attacks, which none will be so hardy as to make, but also from all secret machinations which may sap and undermine it.”*

“The trial by jury ever has been, and I trust ever will be, looked upon as the glory of the English law. . . It is the most transcendent privilege which any subject can enjoy or wish for, that he cannot be affected in his property, his liberty, or his person, but by the unanimous consent of twelve of his neighbors and equals.”†

Hume calls the trial by jury “An institution admirable in itself, and the best calculated for the preservation of liberty and the administration of justice, that ever was devised by the wit of man.”‡

An old book, called “English Liberties,” says:

“English Parliaments have all along been most zealous for preserving this great Jewel of Liberty, trials by juries having no less than fifty-eight several times, since the Norman Conquest, been established and confirmed by the legislative power, no one privilege besides having been ever so often remembered in parliament.”§

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CHAPTER XII.: LIMITATIONS IMPOSED UPON THE MAJORITY BY THE TRIAL BY JURY.

The principal objection, that will be made to the doctrine of this essay, is, that under it, a jury would paralyze the power of the majority, and veto all legislation that was not in accordance with the will of the whole, or nearly the whole, people.

The answer to this objection is, that the limitation, which would be thus imposed upon the legislative power, (whether that power be vested in the majority, or minority, of the people,) is the crowning merit of the trial by jury. It has other merits; but, though important in themselves, they are utterly insignificant and worthless in comparison with this.

It is this power of vetoing all partial and oppressive legislation, and of restricting the government to the maintenance of such laws as the whole, or substantially the whole, people are agreed in, that makes the trial by jury “the palladium of liberty.” Without this power it would never have deserved that name.

The will, or the pretended will, of the majority, is the last lurking place of tyranny at the present day. The dogma, that certain individuals and families have a divine appointment to govern the rest of mankind, is fast giving place to the one that the larger number have a right to govern the smaller; a dogma, which may, or may not, be less oppressive in its practical operation, but which certainly is no less false or tyrannical in principle, than the one it is so rapidly supplanting. Obviously there is nothing in the nature of majorities, that insures justice at their hands. They have the same passions as minorities, and they have no qualities whatever that should be expected to prevent them from practising the same tyranny [207] as minorities, if they think it will be for their interest to do so.

There is no particle of truth in the notion that the majority have a right to rule, or to exercise arbitrary power over, the minority, simply because the former are more numerous than the latter. Two men have no more natural right to rule one, than one has to rule two. Any single man, or any body of men, many or few, have a natural right to maintain justice for themselves, and for any others who may need their assistance, against the injustice of any and all other men, without regard to their numbers; and majorities have no right to do any more than this. The relative numbers of the opposing parties have nothing to do with the question of right. And no more tyrannical principle was ever avowed, than that the will of the majority ought to have the force of law, without regard to its justice; or, what is the same thing, that the will of the majority ought always to be presumed to be in accordance with justice. Such a doctrine is only another form of the doctrine that might makes right.

When two men meet one upon the highway, or in the wilderness, have they a right to dispose of his life, liberty, or property at their pleasure, simply because they are the more numerous party? Or is he bound to submit to lose his life, liberty, or property, if they demand it, merely because he is the less numerous party? Or, because they are more numerous than he, is he bound to presume that they are governed only by superior wisdom, and the principles of justice, and by no selfish passion that can lead them to do him a wrong? Yet this is the principle, which it is claimed should govern men in all their civil relations to each other. Mankind fall in company with each other on the highway or in the wilderness of life, and it is claimed that the more numerous party, simply by virtue of their superior numbers, have the right arbitrarily to dispose of the life, liberty, and property of the minority; and that the minority are bound, by reason of their inferior numbers, to practise abject submission, and consent to hold their natural rights,—any, all, or none, as the case may be,—at the mere will and pleasure of the majority; as if all a man’s natural rights expired, or were suspended by the operation of [208] a paramount law, the moment he came into the presence of superior numbers.

If such be the true nature of the relations men hold to each other in this world, it puts an end to all such things as crimes, unless they be perpetrated upon those who are equal or superior, in number, to the actors. All acts committed against persons inferior in number to the aggressors, become but the exercise of rightful authority. And consistency with their own principles requires that all governments, founded on the will of the majority, should recognize this plea as a sufficient justification for all crimes whatsoever.

If it be said that the majority should be allowed to rule, not because they are stronger than the minority, but because their superior numbers furnish a probability that they are in the right; one answer is, that the lives, liberties, and properties of men are too valuable to them, and the natural presumptions are too strong in their favor, to justify the destruction of them by their fellow-men on a mere balancing of probabilities, or on any ground whatever short of certainty beyond a reasonable doubt. This last is the moral rule universally recognized to be binding upon single individuals. And in the forum of conscience the same rule is equally binding upon governments, for governments are mere associations of individuals. This is the rule on which the trial by jury is based. And it is plainly the only rule that ought to induce a man to submit his rights to the adjudication of his fellow-men, or dissuade him from a forcible defence of them.

Another answer is, that if two opposing parties could be supposed to have no personal interests or passions involved, to warp their judgments, or corrupt their motives, the fact that one of the parties was more numerous than the other, (a fact that leaves the comparative intellectual competency of the two parties entirely out of consideration,) might, perhaps, furnish a slight, but at best only a very slight, probability that such party was on the side of justice. But when it is considered that the parties are liable to differ in their intellectual capacities, and that one, or the other, or both, are undoubtedly under the influence of such passions as rivalry, hatred, avarice, and ambition,—passions that are nearly certain to pervert their [209] judgments, and very likely to corrupt their motives,—all probabilities founded upon a mere numerical majority, in one party, or the other, vanish at once; and the decision of the majority becomes, to all practical purposes, a mere decision of chance. And to dispose of men’s properties, liberties, and lives, by the mere process of enumerating such parties, is not only as palpable gambling as was ever practised, but it is also the most atrocious that was ever practised, except in matters of government. And where government is instituted on this principle, (as in the United States, for example,) the nation is at once converted into one great gambling establishment; where all the rights of men are the stakes; a few bold bad men throw the dice—(dice loaded with all the hopes, fears, interests, and passions which rage in the breasts of ambitious and desperate men,)—and all the people, from the interests they have depending, become enlisted, excited, agitated, and generally corrupted, by the hazards of the game.

The trial by jury disavows the majority principle altogether; and proceeds upon the ground that every man should be presumed to be entitled to life, liberty, and such property as he has in his possession; and that the government should lay its hand upon none of them, (except for the purpose of bringing them before a tribunal for adjudication,) unless it be first ascertained, beyond a reasonable doubt, in every individual case, that justice requires it.

To ascertain whether there be such reasonable doubt, it takes twelve men by lot from the whole body of mature men. If any of these twelve are proved to be under the influence of any special interest or passion, that may either pervert their judgments, or corrupt their motives, they are set aside as unsuitable for the performance of a duty requiring such absolute impartiality and integrity; and others substituted in their stead. When the utmost practicable impartiality is attained on the part of the whole twelve, they are sworn to the observance of justice; and their unanimous concurrence is then held to be necessary to remove that reasonable doubt, which, unremoved, would forbid the government to lay its hand on its victim.

Such is the caution which the trial by jury both practises [210] and inculcates, against the violation of justice, on the part of the government, towards the humblest individual, in the smallest matter affecting his civil rights, his property, liberty, or life. And such is the contrast, which the trial by jury presents, to that gambler’s and robber’s rule, that the majority have a right, by virtue of their superior numbers, and without regard to justice, to dispose at pleasure of the property and persons of all bodies of men less numerous than themselves.

The difference, in short, between the two systems, is this. The trial by jury protects person and property, inviolate to their possessors, from the hand of the law, unless justice, beyond a reasonable doubt, require them to be taken. The majority principle takes person and property from their possessors, at the mere arbitrary will of a majority, who are liable and likely to be influenced, in taking them, by motives of oppression, avarice, and ambition.

If the relative numbers of opposing parties afforded sufficient evidence of the comparative justice of their claims, the government should carry the principle into its courts of justice; and instead of referring controversies to impartial and disinterested men,—to judges and jurors, sworn to do justice, and bound patiently to hear and weigh all the evidence and arguments that can be offered on either side,—it should simply count the plaintiffs and defendants in each case, (where there were more than one of either,) and then give the case to the majority; after ample opportunity had been given to the plaintiffs and defendants to reason with, flatter, cheat, threaten, and bribe each other, by way of inducing them to change sides. Such a process would be just as rational in courts of justice, as in halls of legislation; for it is of no importance to a man, who has his rights taken from him, whether it be done by a legislative enactment, or a judicial decision.

In legislation, the people are all arranged as plaintiffs and defendants in their own causes; (those who are in favor of a particular law, standing as plaintiffs, and those who are opposed to the same law, standing as defendants); and to allow these causes to be decided by majorities, is plainly as absurd as it would be to allow judicial decisions to be determined by the relative number of plaintiffs and defendants.

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If this mode of decision were introduced into courts of justice, we should see a parallel, and only a parallel, to that system of legislation which we witness daily. We should see large bodies of men conspiring to bring perfectly groundless suits, against other bodies of men, for large sums of money, and to carry them by sheer force of numbers; just as we now continually see large bodies of men conspiring to carry, by mere force of numbers, some scheme of legislation that will, directly or indirectly, take money out of other men’s pockets, and put it into their own. And we should also see distinct bodies of men, parties in separate suits, combining and agreeing all to appear and be counted as plaintiffs or defendants in each other’s suits, for the purpose of ekeing out the necessary majority; just as we now see distinct bodies of men, interested in separate schemes of ambition or plunder, conspiring to carry through a batch of legislative enactments, that shall accomplish their several purposes.

This system of combination and conspiracy would go on, until at length whole states and a whole nation would become divided into two great litigating parties, each party composed of several smaller bodies, having their separate suits, but all confederating for the purpose of making up the necessary majority in each case. The individuals composing each of these two great parties, would at length become so accustomed to acting together, and so well acquainted with each others’ schemes, and so mutually dependent upon each others’ fidelity for success, that they would become organized as permanent associations; bound together by that kind of honor that prevails among thieves; and pledged by all their interests, sympathies, and animosities, to mutual fidelity, and to unceasing hostility to their opponents; and exerting all their arts and all their resources of threats, injuries, promises, and bribes, to drive or seduce from the other party enough to enable their own to retain or acquire such a majority as would be necessary to gain their own suits, and defeat the suits of their opponents. All the wealth and talent of the country would become enlisted in the service of these rival associations; and both would at length become so compact, so well organized, so powerful, and yet always so much in need of recruits, [212] that a private person would be nearly or quite unable to obtain justice in the most paltry suit with his neighbor, except on the condition of joining one of these great litigating associations, who would agree to carry through his cause, on condition of his assisting them to carry through all the others, good and bad, which they had already undertaken. If he refused this, they would threaten to make a similar offer to his antagonist, and suffer their whole numbers to be counted against him.

Now this picture is no caricature, but a true and honest likeness. And such a system of administering justice, would be no more false, absurd, or atrocious, than that system of working by majorities, which seeks to accomplish, by legislation, the same ends which, in the case supposed, would be accomplished by judicial decisions.

Again, the doctrine that the minority ought to submit to the will of the majority, proceeds, not upon the principle that government is formed by voluntary association, and for an agreed purpose, on the part of all who contribute to its support, but upon the presumption that all government must be practically a state of war and plunder between opposing parties; and that, in order to save blood, and prevent mutual extermination, the parties come to an agreement that they will count their respective numbers periodically, and the one party shall then be permitted quietly to rule and plunder, (restrained only by their own discretion,) and the other submit quietly to be ruled and plundered, until the time of the next enumeration.

Such an agreement may possibly be wiser than unceasing and deadly conflict; it nevertheless partakes too much of the ludicrous to deserve to be seriously considered as an expedient for the maintenance of civil society. It would certainly seem that mankind might agree upon a cessation of hostilities, upon more rational and equitable terms than that of unconditional submission on the part of the less numerous body. Unconditional submission is usually the last act of one who confesses himself subdued and enslaved. How any one ever came to imagine that condition to be one of freedom, has never been explained. And as for the system being adapted to the maintenance [213] of justice among men, it is a mystery that any human mind could ever have been visited with an insanity wild enough to originate the idea.

If it be said that other corporations, than governments, surrender their affairs into the hands of the majority, the answer is, that they allow majorities to determine only trifling matters, that are in their nature mere questions of discretion, and where there is no natural presumption of justice or right on one side rather than the other. They never surrender to the majority the power to dispose of, or, what is practically the same thing, to determine, the rights of any individual member. The rights of every member are determined by the written compact, to which all the members have voluntarily agreed.

For example. A banking corporation allows a majority to determine such questions of discretion as whether the note of A or of B shall be discounted; whether notes shall be discounted on one, two, or six days in the week; how many hours in a day their banking-house shall be kept open; how many clerks shall be employed; what salaries they shall receive, and such like matters, which are in their nature mere subjects of discretion, and where there are no natural presumptions of justice or right in favor of one course over the other. But no banking corporation allows a majority, or any other number of its members less than the whole, to divert the funds of the corporation to any other purpose than the one to which every member of the corporation has legally agreed that they may be devoted; nor to take the stock of one member and give it to another; nor to distribute the dividends among the stockholders otherwise than to each one the proportion which he has agreed to accept, and all the others have agreed that he shall receive. Nor does any banking corporation allow a majority to impose taxes upon the members for the payment of the corporate expenses, except in such proportions as every member has consented that they may be imposed. All these questions, involving the rights of the members as against each other, are fixed by the articles of the association,—that is, by the agreement to which every member has personally assented.

What is also specially to be noticed, and what constitutes a [214] vital difference between the banking corporation and the political corporation, or government, is, that in case of controversy among the members of the banking corporation, as to the rights of any member, the question is determined, not by any number, either majority, or minority, of the corporation itself, but by persons out of the corporation; by twelve men acting as jurors, or by other tribunals of justice, of which no member of the corporation is allowed to be a part. But in the case of the political corporation, controversies among the parties to it, as to the rights of individual members, must of necessity be settled by members of the corporation itself, because there are no persons out of the corporation to whom the question can be referred.

Since, then, all questions as to the rights of the members of the political corporation, must be determined by members of the corporation itself, the trial by jury says that no man’s rights,—neither his right to his life, his liberty, nor his property,—shall be determined by any such standard as the mere will and pleasure of majorities; but only by the unanimous verdict of a tribunal fairly representing the whole people,—that is, a tribunal of twelve men, taken at random from the whole body, and ascertained to be as impartial as the nature of the case will admit, and sworn to the observance of justice. Such is the difference in the two kinds of corporations; and the custom of managing by majorities the mere discretionary matters of business corporations, (the majority having no power to determine the rights of any member,) furnishes no analogy to the practice, adopted by political corporations, of disposing of all the rights of their members by the arbitrary will of majorities.

But further. The doctrine that the majority have a right to rule, proceeds upon the principle that minorities have no rights in the government; for certainly the minority cannot be said to have any rights in a government, so long as the majority alone determine what their rights shall be. They hold everything, or nothing, as the case may be, at the mere will of the majority.

It is indispensable to a “free government,” (in the political sense of that term,) that the minority, the weaker party, have [215] a veto upon the acts of the majority. Political liberty is liberty for the weaker party in a nation. It is only the weaker party that lose their liberties, when a government becomes oppressive. The stronger party, in all governments, are free by virtue of their superior strength. They never oppress themselves.

Legislation is the work of this stronger party; and if, in addition to the sole power of legislating, they have the sole power of determining what legislation shall be enforced, they have all power in their hands, and the weaker party are the subjects of an absolute government.

Unless the weaker party have a veto, either upon the making, or the enforcement of laws, they have no power whatever in the government, and can of course have no liberties except such as the stronger party, in their arbitrary discretion, see fit to permit them to enjoy.

In England and the United States, the trial by jury is the only institution that gives the weaker party any veto upon the power of the stronger. Consequently it is the only institution, that gives them any effective voice in the government, or any guaranty against oppression.

Suffrage, however free, is of no avail for this purpose; because the suffrage of the minority is overborne by the suffrage of the majority, and is thus rendered powerless for purposes of legislation. The responsibility of officers can be made of no avail, because they are responsible only to the majority. The minority, therefore, are wholly without rights in the government, wholly at the mercy of the majority, unless, through the trial by jury, they have a veto upon such legislation as they think unjust.

Government is established for the protection of the weak against the strong. This is the principal, if not the sole, motive for the establishment of all legitimate government. Laws, that are sufficient for the protection of the weaker party, are of course sufficient for the protection of the stronger party; because the strong can certainly need no more protection than the weak. It is, therefore, right that the weaker party should be represented in the tribunal which is finally to determine what legislation may be enforced; and that no legislation shall [216] be enforced against their consent. They being presumed to be competent judges of what kind of legislation makes for their safety, and what for their injury, it must be presumed that any legislation, which they object to enforcing, tends to their oppression, and not to their security.

There is still another reason why the weaker party, or the minority, should have a veto upon all legislation which they disapprove. That reason is, that that is the only means by which the government can be kept within the limits of the contract, compact, or constitution, by which the whole people agree to establish government. If the majority were allowed to interpret the compact for themselves, and enforce it according to their own interpretation, they would, of course, make it authorize them to do whatever they wish to do.

The theory of free government is that it is formed by the voluntary contract of the people individually with each other. This is the theory, (although it is not, as it ought to be, the fact,) in all the governments in the United States, as also in the government of England. The theory assumes that each man, who is a party to the government, and contributes to its support, has individually and freely consented to it. Otherwise the government would have no right to tax him for its support,—for taxation without consent is robbery. This theory, then, necessarily supposes that this government, which is formed by the free consent of all, has no powers except such as all the parties to it have individually agreed that it shall have; and especially that it has no power to pass any laws, except such as all the parties have agreed that it may pass.

This theory supposes that there may be certain laws that will be beneficial to all,—so beneficial that all consent to be taxed for their maintenance. For the maintenance of these specific laws, in which all are interested, all associate. And they associate for the maintenance of those laws only, in which all are interested. It would be absurd to suppose that all would associate, and consent to be taxed, for purposes which were beneficial only to a part; and especially for purposes that were injurious to any. A government of the whole, therefore, can have no powers except such as all the parties consent that it may have. It can do nothing except what all have consented [217] that it may do. And if any portion of the people,—no matter how large their number, if it be less than the whole,—desire a government for any purposes other than those that are common to all, and desired by all, they must form a separate association for those purposes. They have no right,—by perverting this government of the whole, to the accomplishment of purposes desired only by a part,—to compel any one to contribute to purposes that are either useless or injurious to himself.

Such being the principles on which the government is formed, the question arises, how shall this government, when formed, be kept within the limits of the contract by which it was established? How shall this government, instituted by the whole people, agreed to by the whole people, supported by the contributions of the whole people, be confined to the accomplishment of those purposes alone, which the whole people desire? How shall it be preserved from degenerating into a mere government for the benefit of a part only of those who established, and who support it? How shall it be prevented from even injuring a part of its own members, for the aggrandizement of the rest? Its laws must be, (or at least now are,) passed, and most of its other acts performed, by mere agents,—agents chosen by a part of the people, and not by the whole. How can these agents be restrained from seeking their own interests, and the interests of those who elected them, at the expense of the rights of the remainder of the people, by the passage and enforcement of laws that shall be partial, unequal, and unjust in their operation? That is the great question. And the trial by jury answers it. And how does the trial by jury answer it? It answers it, as has already been shown throughout this volume, by saying that these mere agents and attorneys, who are chosen by a part only of the people, and are liable to be influenced by partial and unequal purposes, shall not have unlimited authority in the enactment and enforcement of laws; that they shall not exercise all the functions of government. It says that they shall never exercise that ultimate power of compelling obedience to the laws by punishing for disobedience, or of executing the laws against the person or property of any man, without first [218] getting the consent of the people, through a tribunal that may fairly be presumed to represent the whole, or substantially the whole, people. It says that if the power to make laws, and the power also to enforce them, were committed to these agents, they would have all power,—would be absolute masters of the people, and could deprive them of their rights at pleasure. It says, therefore, that the people themselves will hold a veto upon the enforcement of any and every law, which these agents may enact, and that whenever the occasion arises for them to give or withhold their consent,—inasmuch as the whole people cannot assemble, or devote the time and attention necessary to the investigation of each case,—twelve of their number shall be taken by lot, or otherwise at random, from the whole body; that they shall not be chosen by majorities, (the same majorities that elected the agents who enacted the laws to be put in issue,) nor by any interested or suspected party; that they shall not be appointed by, or be in any way dependent upon, those who enacted the law; that their opinions, whether for or against the law that is in issue, shall not be inquired of beforehand; and that if these twelve men give their consent to the enforcement of the law, their consent shall stand for the consent of the whole.

This is the mode, which the trial by jury provides, for keeping the government within the limits designed by the whole people, who have associated for its establishment. And it is the only mode, provided either by the English or American constitutions, for the accomplishment of that object.

But it will, perhaps, be said that if the minority can defeat the will of the majority, then the minority rule the majority. But this is not true in any unjust sense. The minority enact no laws of their own. They simply refuse their assent to such laws of the majority as they do not approve. The minority assume no authority over the majority; they simply defend themselves. They do not interfere with the right of the majority to seek their own happiness in their own way, so long as they (the majority) do not interfere with the minority. They claim simply not to be oppressed, and not to be compelled to assist in doing anything which they do not approve. They say to the majority, “We will unite with you, if you [219] desire it, for the accomplishment of all those purposes, in which we have a common interest with you. You can certainly expect us to do nothing more. If you do not choose to associate with us on those terms, there must be two separate associations. You must associate for the accomplishment of your purposes; we for the accomplishment of ours.”

In this case, the minority assume no authority over the majority; they simply refuse to surrender their own liberties into the hands of the majority. They propose a union; but decline submission. The majority are still at liberty to refuse the connection, and to seek their own happiness in their own way, except that they cannot be gratified in their desire to become absolute masters of the minority.

But, it may be asked, how can the minority be trusted to enforce even such legislation as is equal and just? The answer is, that they are as reliable for that purpose as are the majority; they are as much presumed to have associated, and are as likely to have associated, for that object, as are the majority; and they have as much interest in such legislation as have the majority. They have even more interest in it; for, being the weaker party, they must rely on it for their security,—having no other security on which they can rely. Hence their consent to the establishment of government, and to the taxation required for its support, is presumed, (although it ought not to be presumed,) without any express consent being given. This presumption of their consent to be taxed for the maintenance of laws, would be absurd, if they could not themselves be trusted to act in good faith in enforcing those laws. And hence they cannot be presumed to have consented to be taxed for the maintenance of any laws, except such as they are themselves ready to aid in enforcing. It is therefore unjust to tax them, unless they are eligible to seats in a jury, with power to judge of the justice of the laws. Taxing them for the support of the laws, on the assumption that they are in favor of the laws, and at the same time refusing them the right, as jurors, to judge of the justice of the laws, on the assumption that they are opposed to the laws, are flat contradictions.

But, it will be asked, what motive have the majority, when [220] they have all power in their own hands, to submit their will to the veto of the minority?

One answer is, that they have the motive of justice. It would be unjust to compel the minority to contribute, by taxation, to the support of any laws which they did not approve.

Another answer is, that if the stronger party wish to use their power only for purposes of justice, they have no occasion to fear the veto of the weaker party; for the latter have as strong motives for the maintenance of just government, as have the former.

Another answer is, that if the stronger party use their power unjustly, they will hold it by an uncertain tenure, especially in a community where knowledge is diffused; for knowledge will enable the weaker party to make itself in time the stronger party. It also enables the weaker party, even while it remains the weaker party, perpetually to annoy, alarm, and injure their oppressors. Unjust power,—or rather power that is grossly unjust, and that is known to be so by the minority,—can be sustained only at the expense of standing armies, and all the other machinery of force; for the oppressed party are always ready to risk their lives for purposes of vengeance, and the acquisition of their rights, whenever there is any tolerable chance of success. Peace, safety, and quiet for all, can be enjoyed only under laws that obtain the consent of all. Hence tyrants frequently yield to the demands of justice from those weaker than themselves, as a means of buying peace and safety.

Still another answer is, that those who are in the majority on one law, will be in the minority on another. All, therefore, need the benefit of the veto, at some time or other, to protect themselves from injustice.

That the limits, within which legislation would, by this process, be confined, would be exceedingly narrow, in comparison with those it at present occupies, there can be no doubt. All monopolies, all special privileges, all sumptuary laws, all restraints upon any traffic, bargain, or contract, that was naturally lawful,* all restraints upon men’s natural [221] rights, the whole catalogue of mala prohibita, and all taxation to which the taxed parties had not individually, severally, and freely consented, would be at an end; because all such legislation implies a violation of the rights of a greater or less minority. This minority would disregard, trample upon, or resist, the execution of such legislation, and then throw themselves upon a jury of the whole people for justification and protection. In this way all legislation would be nullified, except the legislation of that general nature which impartially protected the rights, and subserved the interests, of all. The only legislation that could be sustained, would probably be such as tended directly to the maintenance of justice and liberty; such, for example, as should contribute to the enforcement of contracts, the protection of property, and the prevention and punishment of acts intrinsically criminal. In short, government in practice would be brought to the necessity of a strict adherence to natural law, and natural justice, instead of being, as it now is, a great battle, in which avarice and ambition are constantly fighting for and obtaining advantages over the natural rights of mankind.

[222]

APPENDIX.

TAXATION.

It was a principle of the Common Law, as it is of the law of nature, and of common sense, that no man can be taxed without his personal consent. The Common Law knew nothing of that system, which now prevails in England, of assuming a man’s own consent to be taxed, because some pretended representative, whom he never authorized to act for him, has taken it upon himself to consent that he may be taxed. That is one of the many frauds on the Common Law, and the English constitution, which have been introduced since Magna Carta. Having finally established itself in England, it has been stupidly and servilely copied and submitted to in the United States.

If the trial by jury were reëstablished, the Common Law principle of taxation would be reëstablished with it; for it is not to be supposed that juries would enforce a tax upon an individual which he had never agreed to pay. Taxation without consent is as plainly robbery, when enforced against one man, as when enforced against millions; and it is not to be imagined that juries could be blind to so self-evident a principle. Taking a man’s money without his consent, is also as much robbery, when it is done by millions of men, acting in concert, and calling themselves a government, as when it is done by a single individual, acting on his own responsibility, and calling himself a highwayman. Neither the numbers engaged in the act, nor the different characters they assume as a cover for the act, alter the nature of the act itself.

If the government can take a man’s money without his consent, there is no limit to the additional tyranny it may practise upon him; for, with his money, it can hire soldiers to stand over him, keep him in subjection, plunder him at discretion, and kill him if he resists. And governments always will do this, as they everywhere and always have done it, except where the Common Law principle has been established. It is therefore a first principle, a very sine qua non of political freedom, that a man can be taxed only by his personal consent. And the establishment of this principle, with trial by jury, insures freedom of course; because: 1. No man would pay his money unless he had first contracted for such a government as he was willing to support; and, 2. Unless the government then kept itself within the terms of its contract, juries would not enforce the payment of the tax. Besides, the agreement to be taxed would probably be entered into but for a year at a time. If, in that year, the government proved itself either inefficient or tyrannical, to any serious degree, the contract would not be renewed. [223] The dissatisfied parties, if sufficiently numerous for a new organization, would form themselves into a separate association for mutual protection. If not sufficiently numerous for that purpose, those who were conscientious would forego all governmental protection, rather than contribute to the support of a government which they deemed unjust.

All legitimate government is a mutual insurance company, voluntarily agreed upon by the parties to it, for the protection of their rights against wrong-doers. In its voluntary character it is precisely similar to an association for mutual protection against fire or shipwreck. Before a man will join an association for these latter purposes, and pay the premium for being insured, he will, if he be a man of sense, look at the articles of the association; see what the company promises to do; what it is likely to do; and what are the rates of insurance. If he be satisfied on all these points, he will become a member, pay his premium for a year, and then hold the company to its contract. If the conduct of the company prove unsatisfactory, he will let his policy expire at the end of the year for which he has paid; will decline to pay any further premiums, and either seek insurance elsewhere, or take his own risk without any insurance. And as men act in the insurance of their ships and dwellings, they would act in the insurance of their properties, liberties and lives, in the political association, or government.

The political insurance company, or government, have no more right, in nature or reason, to assume a man’s consent to be protected by them, and to be taxed for that protection, when he has given no actual consent, than a fire or marine insurance company have to assume a man’s consent to be protected by them, and to pay the premium, when his actual consent has never been given. To take a man’s property without his consent is robbery; and to assume his consent, where no actual consent is given, makes the taking none the less robbery. If it did, the highwayman has the same right to assume a man’s consent to part with his purse, that any other man, or body of men, can have. And his assumption would afford as much moral justification for his robbery as does a like assumption, on the part of the government, for taking a man’s property without his consent. The government’s pretence of protecting him, as an equivalent for the taxation, affords no justification. It is for himself to decide whether he desires such protection as the government offers him. If he do not desire it, or do not bargain for it, the government has no more right than any other insurance company to impose it upon him, or make him pay for it.

Trial by the country, and no taxation without consent, were the two pillars of English liberty, (when England had any liberty,) and the first principles of the Common Law. They mutually sustain each other; and neither can stand without the other. Without both, no people have any guaranty for their freedom; with both, no people can be otherwise than free.*

[224]

By what force, fraud, and conspiracy, on the part of kings, nobles, and “a few wealthy freeholders,” these pillars have been prostrated in England, it is designed to show more fully in the next volume, if it should be necessary.

*

To show that this supposition is not an extravagant one, it may be mentioned that courts have repeatedly questioned jurors to ascertain whether they were prejudiced against the government—that is, whether they were in favor of, or opposed to, such laws of the government as were to be put in issue in the then pending trial. This was done (in 1851) in the United States District Court for the District of Massachusetts, by Peleg Sprague, the United States district judge, in empanelling three several juries for the trials of Scott, Hayden, and Morris, charged with having aided in the rescue of a fugitive slave from the custody of the United States deputy marshal. This judge caused the following question to be propounded to all the jurors separately; and those who answered unfavorably for the purposes of the government, were excluded from the panel.

“Do you hold any opinions upon the subject of the Fugitive Slave Law, so called, which will induce you to refuse to convict a person indicted under it, if the facts set forth in the indictment, and constituting the offence, are proved against him, and the court direct you that the law is constitutional?”

The reason of this question was, that “the Fugitive Slave Law, so called,” was so obnoxious to a large portion of the people, as to render a conviction under it hopeless, if the jurors were taken indiscriminately from among the people.

A similar question was soon afterwards propounded to the persons drawn as jurors in the United States Circuit Court for the District of Massachusetts, by Benjamin R. Curtis, one of the Justices of the Supreme Court of the United States, in empanelling a jury for the trial of the aforesaid Morris on the charge before mentioned; and those who did not answer the question favorably for the government were again excluded from the panel.

It has also been an habitual practice with the Supreme Court of Massachusetts, in empanelling juries for the trial of capital offences, to inquire of the persons drawn as jurors whether they had any conscientious scruples against finding verdicts of guilty in such cases; that is, whether they had any conscientious scruples against sustaining the law prescribing death as the punishment of the crime to be tried; and to exclude from the panel all who answered in the affirmative.

The only principle upon which these questions are asked, is this—that no man shall be allowed to serve as juror, unless he be ready to enforce any enactment of the government, however cruel or tyrannical it may be.

What is such a jury good for, as a protection against the tyranny of the government? A jury like that is palpably nothing but a mere tool of oppression in the hands of the government. A trial by such a jury is really a trial by the government itself—and not a trial by the country—because it is a trial only by men specially selected by the government for their readiness to enforce its own tyrannical measures.

If that be the true principle of the trial by jury, the trial is utterly worthless as a security to liberty. The Czar might, with perfect safety to his authority, introduce the trial by jury into Russia, if he could but be permitted to select his jurors from those who were ready to maintain his laws, without regard to their injustice.

This example is sufficient to show that the very pith of the trial by jury, as a safeguard to liberty, consists in the jurors being taken indiscriminately from the whole people, and in their right to hold invalid all laws which they think unjust.

Endnotes

*

The executive has a qualified veto upon the passage of laws, in most of our governments, and an absolute veto, in all of them, upon the execution of any laws which he deems unconstitutional; because his oath to support the constitution (as he understands it) forbids him to execute any law that he deems unconstitutional.

*

And if there be so much as a reasonable doubt of the justice of the laws, the benefit of that doubt must be given to the defendant, and not to the government. So that the government must keep its laws clearly within the limits of justice, if it would ask a jury to enforce them.

*

Hallam says, “The relation established between a lord and his vassal by the feudal tenure, far from containing principles of any servile and implicit obedience, permitted the compact to be dissolved in case of its violation by either party. This extended as much to the sovereign as to inferior lords. * * If a vassal was aggrieved, and if justice was denied him, he sent a defiance, that is, a renunciation of fealty to the king, and was entitled to enforce redress at the point of his sword. It then became a contest of strength as between two independent potentates, and was terminated by treaty, advantageous or otherwise, according to the fortune of war. * * There remained the original principle, that allegiance depended conditionally upon good treatment, and that an appeal might be lawfully made to arms against an oppressive government. Nor was this, we may be sure, left for extreme necessity, or thought to require a long-enduring forbearance. In modern times, a king, compelled by his subjects’ swords to abandon any protension, would be supposed to have ceased to reign; and the express recognition of such a right as that of insurrection has been justly deemed inconsistent with the majesty of law. But ruder ages had ruder sentiments. Force was necessary to repel force; and men accustomed to see the king’s authority defied by a private riot, were not much shocked when it was resisted in defence of public freedom.”—3 Middle Ages, 240-2.

*

1 Home, Appendix 2.

†

Crabbe’s History of the English Law, 236.

*

Coke says, “The king of England is armed with divers councils, one whereof is called commune concilium, (the common council,) and that is the court of parliament, and so it is legally called in writs and judicial proceedings commune concilium regni Angliæ, (the common council of the kingdom of England.) And another is called magnum concilium, (great council;) this is sometimes applied to the upper house of parliament, and sometimes, out of parliament time, to the peers of the realm, lords of parliament, who are called magnum concilium regis, (the great council of the king;) * * Thirdly, (as every man knoweth,) the king hath a privy council for matters of state. * * The fourth council of the king are his judges for law matters.”

1 Coke’s Institutes, 110 a.

†

The Great Charter of Henry III., (1216 and 1225,) confirmed by Edward I., (1297,) makes no provision whatever for, or mention of, a parliament, unless the provision, (Ch. 37,) that “Escuage, (a military contribution,) from henceforth shall be taken like as it was wont to be in the time of King Henry our grandfather,” mean that a parliament shall be summoned for that purpose.

‡

The Magna Carta of John, (Ch. 17 and 18,) defines those who were entitled to be summoned to parliament, to wit, “The Archbishops, Bishops, Abbots, Earls, and Great Barons of the Realm, * * and all others who hold of us in chief.” Those who held land of the king in chief included none below the rank of knights.

§

The parliaments of that time were, doubtless, such as Carlyle describes them, when he says, “The parliament was at first a most simple assemblage, quite cognate to the situation; that Red William, or whoever had taken on him the terrible task of being King of England, was wont to invite, oftenest about Christmas time, his subordinate Kinglets, Barons as he called them, to give him the pleasure of their company for a week or two; there, in earnest conference all morning, in freer talk over Christmas cheer all evening, in some big royal hall of Westminster, Winchester, or wherever it might be, with log fires, huge rounds of roast and boiled, not lacking malmsey and other generous liquor, they took counsel concerning the arduous matters of the kingdom.”

*

Hume, Appendix 2.

†

This point will be more fully established hereafter.

*

It is plain that the king and all his partisans looked upon the charter as utterly prostrating the king’s legislative supremacy before the discretion of juries. When the schedule of liberties demanded by the barons was shown to him, (of which the trial by jury was the most important, because it was the only one that protected all the rest,) “the king, falling into a violent passion, asked, Why the barons did not with these exactions demand his kingdom? * * and with a solemn oath protested, that he would never grant such liberties as would make himself a slave.” * * But afterwards, “seeing himself deserted, and fearing they would seize his castles, he sent the Earl of Pembroke and other faithful messengers to them, to let them know he would grant them the laws and liberties they desired.” * * But after the charter had been granted, “the king’s mercenary soldiers, desiring war more than peace, were by their leaders continually whispering in his ears, that he was now no longer king, but the scorn of other princes; and that it was more eligible to be no king, than such a one as he.” * * He applied “to the Pope, that he might by his apostolic authority make void what the barons had done. * * At Rome he met with what success he could desire, where all the transactions with the barons were fully represented to the Pope, and the Charter of Liberties shown to him, in writing; which, when be had carefully perused, he, with a furious look, cried out, What! Do the barons of England endeavor to dethrone a king, who has taken upon him the Holy Cross, and is under the protection of the Apostolic See; and would they force him to transfer the dominions of the Roman Church to others? By St. Peter, this injury must not pass unpunished. Then debating the matter with the cardinals, he, by a definitive sentence, damned and cassated forever the Charter of Liberties, and sent the king a bull containing that sentence at large.”—Echard’s History of England, p. 106-7.

These things show that the nature and effect of the charter were well understood by the king and his friends; that they all agreed that he was effectually stripped of power. Yet the legislative power had not been taken from him; but only the power to enforce his laws, unless juries should freely consent to their enforcement.

*

The laws were, at that time, all written in Latin.

†

“No man shall be condemned at the king’s suit, either before the king in his bench, where pleas are coram rege, (before the king,) (and so are the words nec super eum ibimus, to be understood,) nor before any other commissioner or judge whatsoever, and so are the words nec super eum mittemus, to be understood, but by the judgment of his peers, that is, equals, or according to the law of the land.”—2 Coke’s Inst., 46.

*

Perhaps the assertion in the text should be made with this qualification—that the words “per legem terræ,” (according to the law of the land,) and the words “per legale judicium parium suorum,” (according to the legal judgment of his peers,) imply that the king, before proceeding to any executive action, will take notice of “the law of the land,” and of the legality of the judgment of the peers, and will execute upon the prisoner nothing except what the law of the land authorizes, and no judgments of the peers, except legal ones. With this qualification, the assertion in the text is strictly correct—that there is nothing in the whole chapter that grants to the king, or his judges, any judicial power at all. The chapter only describes and limits his executive power.

†

See Blackstone’s Law Tracts, page 294, Oxford Edition.

*

These Articles of the Charter are given in Blackstone’s collection of Charters, and are also printed with the Statutes of the Realm. Also in Wilkins’ Laws of the Anglo-Saxons, p. 356.

†

Lingard says, “The words, ‘We will not destroy him, nor will we go upon him, nor will we send upon him,’ have been very differently expounded by different legal authorities. Their real meaning may be learned from John himself, who the next year promised by his letters patent . . . nec super cos per vim vel per arma ibimus, nisi per legem regni nostri, vel per judicium parium suorum in curia nostra, (nor will we go upon them by force or by arms, unless by the law of our kingdom, or the judgment of their peers in our court.) Pat. 16 Johan, apud Drad. 11, app. no. 124. He had hitherto been in the habit of going with an armed force, or sending an armed force on the lands, and against the castles, of all whom he knew or suspected to be his secret enemies, without observing any form of law.”—3 Lingard, 47 note.

*

“Judgment, judicium. * * The sentence of the law, pronounced by the court, upon the matter contained in the record.”—3 Blackstone, 395. Jacob’s Law Dictionary. Tomlin’s do.

“Judgment is the decision or sentence of the law, given by a court of justice or other competent tribunal, as the result of the proceedings instituted therein, for the redress of an injury.”—Bouvier’s Law Dict.

“Judgment, judicium. * * Sentence of a judge against a criminal. * * Determination, decision in general.”—Bailey’s Dict.

“Judgment. * * In a legal sense, a sentence or decision pronounced by authority of a king, or other power, either by their own mouth, or by that of their judges and officers, whom they appoint to administer justice in their stead.”—Chambers’ Dict.

“Judgment. * * In law, the sentence or doom pronounced in any case, civil or criminal, by the judge or court by which it is tried.”—Webster’s Dict.

Sometimes the punishment itself is called judicium, judgment; or, rather, it was at the time of Magna Carta. For example, in a statute passed fifty-one years after Magna Carta, it was said that a baker, for default in the weight of his bread, “debeat amerciari vel subire judicium pillorie;” that is, ought to be amerced, or suffer the punishment, or judgment, of the pillory. Also that a brewer, for “selling ale contrary to the assize,” “debeat amerciari, vel pati judicium tumbrelli”; that is, ought to be amerced, or suffer the punishment, or judgment, of the tumbrel.—51 Henry 3, St. 6. (1266.)

Also the “Statutes of uncertain date,” (but supposed to be prior to Edward III., or 1326,) provide, in chapters 6, 7, and 10, for “judgment of the pillory.”—See 1 Ruffhead’s Statutes, 187, 188. 1 Statutes of the Realm, 203.

Blackstone, in his chapter “Of Judgment, and its Consequences,” says,

“Judgment (unless any matter be offered in arrest thereof) follows upon conviction; being the pronouncing of that punishment which is expressly ordained by law.”—Blackstone’s Analysis of the Laws of England, Book 4, Ch. 29, Sec. 1. Blackstone’s Law Tracts, 126.

Coke says, “Judicium . . the judgment is the guide and direction of the execution.” 3 Inst. 210.

*

This precedent from Germany is good authority, because the trial by jury was in use, in the northern nations of Europe generally, long before Magna Carta, and probably from time immemorial; and the Saxons and Normans were familiar with it before they settled in England.

†

Beneficium was the legal name of an estate held by a feudal tenure. See Spelman’s Glossary.

*

Contenement of a freeman was the means of living in the condition of a freeman.

†

Waynage was a villein’s plough-tackle and carts.

‡

Tomlin says, “The ancient practice was, when any such fine was imposed, to inquire by a jury quantum inde regi dare valeat per annum, salva sustentatione sua et uxoris et liberorum suorum, (how much is he able to give to the king per annum, saving his own maintenance, and that of his wife and children). And since the disuse of such inquest, it is never usual to assess a larger fine than a man is able to pay, without touching the implements of his livelihood; but to inflict corporal punishment, or a limited imprisonment, instead of such a fine as might amount to imprisonment for life. And this is the reason why fines in the king’s courts are frequently denominated ransoms, because the penalty must otherwise fall upon a man’s person, unless it be redeemed or ransomed by a pecuniary fine.”—Tomlin’s Law Dict., word Fine.

§

Because juries were to fix the sentence, it must not be supposed that the king was obliged to carry the sentence into execution; but only that he could not go beyond the sentence. He might pardon, or he might acquit on grounds of law, notwithstanding the sentence; but he could not punish beyond the extent of the sentence. Magna Carta does not prescribe that the king shall punish according to the sentence of the peers; but only that he shall not punish “unless according to” that sentence. He may acquit or pardon, notwithstanding their sentence or judgment; but he cannot punish, except according to their judgment.

*

The trial by battle was one in which the accused challenged his accuser to single combat, and staked the question of his guilt or innocence on the result of the duel. This trial was introduced into England by the Normans, within one hundred and fifty years before Magna Carta. It was not very often resorted to even by the Normans themselves; probably never by the Anglo-Saxons, unless in their controversies with the Normans. It was strongly discouraged by some of the Norman princes, particularly by Henry II., by whom the trial by jury was especially favored. It is probable that the trial by battle, so far as it prevailed at all in England, was rather tolerated as a matter of chivalry, than authorized as a matter of law. At any rate, it is not likely that it was included in the “legem terræ” of Magna Carta, although such duels have occasionally occurred since that time, and have, by some, been supposed to be lawful. I apprehend that nothing can be properly said to be a part of lex terræ, unless it can be shown either to have been of Saxon origin, or to have been recognized by Magna Carta.

The trial by ordeal was of various kinds. In one ordeal the accused was required to take hot iron in his hand; in another to walk blindfold among red-hot ploughshares; in another to thrust his arm into boiling water; in another to be thrown, with his hands and feet bound, into cold water; in another to swallow the morsel of execration; in the confidence that his guilt or innocence would be miraculously made known. This mode of trial was nearly extinct at the time of Magna Carta, and it is not likely that it was included in “legem terræ,” as that term is used in that instrument. This idea is corroborated by the fact that the trial by ordeal was specially prohibited only four years after Magna Carta, “by act of Parliament in 3 Henry III., according to Sir Edward Coke, or rather by an order of the king in council.”—3 Blackstone 345, note.

I apprehend that this trial was never forced upon accused persons, but was only allowed to them, as an appeal to God, from the judgment of a jury.*

The trial by compurgators was one in which, if the accused could bring twelve of his neighbors, who would make oath that they believed him innocent, he was held to be so. It is probable that this trial was really the trial by jury, or was allowed as an appeal from a jury. It is wholly improbable that two different modes of trial, so nearly resembling each other as this and the trial by jury do, should prevail at the same time, and among a rude people, whose judicial proceedings would naturally be of the simplest kind. But if this trial really were any other than the trial by jury, it must have been nearly or quite extinct at the time of Magna Carta; and there is no probability that it was included in “legem terræ.”

*

Hallam says, “It appears as if the ordeal were permitted to persons already convicted by the verdict of a jury.”—2 Middle Ages, 446, note.

*

Coke attempts to show that there is a distinction between amercements and fines—admitting that amercements must be fixed by one’s peers, but claiming that fines may be fixed by the government. (2 Inst. 27, 8 Coke’s Reports 38.) But there seems to have been no ground whatever for supposing that any such distinction existed at the time of Magna Carta. If there were any such distinction in the time of Coke, it had doubtless grown up within the four centuries that had elapsed since Magna Carta, and is to be set down as one of the numberless inventions of government for getting rid of the restraints of Magna Carta, and for taking men out of the protection of their peers, and subjecting them to such punishments as the government chooses to inflict.

The first statute of Westminster, passed sixty years after Magna Carta, treats the fine and amercement as synonymous, as follows:

“Forasmuch as the common fine and amercement of the whole county in Eyre of the justices for false judgments, or for other trespass, is unjustly assessed by sheriffs and baretors in the shires, * * it is provided, and the king wills, that from henceforth such sums shall be assessed before the justices in Eyre, afore their departure, by the oath of knights and other honest men,” &c.—3 Edward I., Ch. 18. (1275.)

And in many other statutes passed after Magna Carta, the terms fine and amercement seem to be used indifferently, in prescribing the punishments for offences. As late as 1461, (246 years after Magna Carta,) the statute 1 Edward IV., Ch. 2, speaks of “fines, ransoms, and amerciaments” as being levied upon criminals, as if they were the common punishments of offences.

St. 2 and 3 Philip and Mary, Ch. 8, uses the terms, “fines, forfeitures, and amerciaments” five times. (1555.)

St. 5 Elizabeth, Ch. 13, Sec. 10, uses the terms “fines, forfeitures, and amerciaments.”

That amercements were fines, or pecuniary punishments, inflicted for offences, is proved by the following statutes, (all supposed to have been passed within one hundred and fifteen years after Magna Carta,) which speak of amercements as a species of “judgment,” or punishment, and as being inflicted for the same offences as other “judgments.”

Thus one statute declares that a baker, for default in the weight of his bread, “ought to be amerced, or suffer the judgment of the pillory;” and that a brewer, for “selling ale contrary to the assize,” “ought to be amerced, or suffer the judgment of the tumbrel.”—51 Henry III., St. 6. (1266.)

Among the “Statutes of Uncertain Date,” but supposed to be prior to Edward III., (1326,) are the following:

Chap. 6 provides that “if a brewer break the assize, (fixing the price of ale,) the first, second, and third time, he shall be amerced; but the fourth time he shall suffer judgment of the pillory without redemption.”

Chap. 7 provides that “a butcher that selleth swine’s flesh measled, or flesh dead of the murrain, or that buyeth flesh of Jews, and selleth the same unto Christians, after he shall be convict thereof, for the first time he shall be grievously amerced; the second time he shall suffer judgment of the pillory; and the third time he shall be imprisoned and make fine; and the fourth time he shall forswear the town.”

Chap. 10, a statute against forestalling, provides that,

“He that is convict thereof, the first time shall be amerced, and shall lose the thing so bought, and that according to the custom of the town; he that is convicted the second time shall have judgment of the pillory; at the third time he shall be imprisoned and make fine; the fourth time he shall abjure the town. And this judgment shall be given upon all manner of forestallers, and likewise upon them that have given them counsel, help, or favor.”—1 Ruffhead’s Statutes, 187, 188. 1 Statutes of the Realm, 203.

*

1 Hume, Appendix, 1.

†

Blaokstone says, “Our ancient Saxon laws nominally punished theft with death, if above the value of twelve pence; but the criminal was permitted to redeem his life by a pecuniary ransom, as among their ancestors, the Germans, by a stated number of cattle. But in the ninth year of Henry the First, (1109,) this power of redemption was taken away, and all persons guilty of larceny above the value of twelve pence were directed to be hanged, which law continues in force to this day.”—4 Blackstone, 238.

I give this statement of Blackstone, because the latter clause may seem to militate with the idea, which the former clause corroborates, viz., that at the time of Magna Carta, fines were the usual punishments of offences. But I think there is no probability that a law so unreasonable in itself, (unreasonable even after making all allowance for the difference in the value of money,) and so contrary to immemorial custom, could or did obtain any general or speedy acquiescence among a people who cared little for the authority of kings.

Maddox, writing of the period from William the Conqueror to John, says:

“The amercements in criminal and common pleas, which were wont to be imposed during this first period and afterwards, were of so many several sorts, that it is not easy to place them under distinct heads. Let them, for method’s sake, be reduced to the heads following: Amercements for or by reason of murders and manslaughters, for misdemeanors, for disseisins, for recreancy, for breach of assize, for defaults, for non-appearance, for false judgment, and for not making suit, or hue and cry. To them may be added miscellaneous amercements, for trespasses of divers kinds.”—1 Maddox’ History of the Exchequer, 542.

*

Coke, in his exposition of the words legem terræ, gives quite in detail the principles of the common law governing arrests; and takes it for granted that the words “nisi per legem terræ” are applicable to arrests, as well as to the indictment, &c.—2 Inst., 51, 52.

*

I cite the above extract from Mr. Hallam solely for the sake of his authority for rendering the word vel by and; and not by any means for the purpose of indorsing the opinion he suggests, that legem terræ authorized “judgments by default or demurrer,” without the intervention of a jury. He seems to imagine that lex terræ, the common law, at the time of Magna Carta, included everything, even to the practice of courts, that is, at this day, called by the name of Common Law; whereas much of what is now called Common Law has grown up, by usurpation, since the time of Magna Carta, in palpable violation of the authority of that charter. He says, “Certainly there are many legal procedures, besides trial by jury, through which a party’s goods or person may be taken.” Of course there are now many such ways, in which a party’s goods or person are taken, besides by the judgment of a jury; but the question is, whether such takings are not in violation of Magna Carta.

He seems to think that, in cases of “judgment by default or demurrer,” there is no need of a jury, and thence to infer that legem terræ may not have required a jury in those cases. But this opinion is founded on the erroneous idea that juries are required only for determining contested facts, and not for judging of the law. In case of default, the plaintiff must present a prima facie case before he is entitled to a judgment; and Magna Carta, (supposing it to require a jury trial in civil cases, as Mr. Hallam assumes that it does,) as much requires that this prima facie case, both law and fact, be made out to the satisfaction of a jury, as it does that a contested case shall be.

As for a demurrer, the jury must try a demurrer (having the advice and assistance of the court, of course) as much as any other matter of law arising in a case.

Mr. Hallam evidently thinks there is no use for a jury, except where there is a “trial”—meaning thereby a contest on matters of fact. His language is, that “there are many legal procedures, besides trial by jury, through which a party’s goods or person may be taken.” Now Magna Carta says nothing of trial by jury; but only of the judgment, or sentence, of a jury. It is only by inference that we come to the conclusion that there must be a trial by jury. Since the jury alone can give the judgment, or sentence, we infer that they must try the case; because otherwise they would be incompetent, and would have no moral right, to give judgment. They must, therefore, examine the grounds, (both of law and fact,) or rather try the grounds, of every action whatsoever, whether it be decided on “default, demurrer,” or otherwise, and render their judgment, or sentence, thereon, before any judgment can be a legal one, on which “to take a party’s goods or person.” In short, the principle of Magna Carta is, that no judgment can be valid against a party’s goods or person, (not even a judgment for costs,) except a judgment rendered by a jury. Of course a jury must try every question, both of law and fact, that is involved in the rendering of that judgment. They are to have the assistance and advice of the judges, so far as they desire them; but the judgment itself must be theirs, and not the judgment of the court.

As to “process of attachment for contempt,” it is of course lawful for a judge, in his character of a peace officer, to issue a warrant for the arrest of a man guilty of a contempt, as he would for the arrest of any other offender, and hold him to bail, (or, in default of bail, commit him to prison,) to answer for his offence before a jury. Or he may order him into custody without a warrant when the offence is committed in the judge’s presence. But there is no reason why a judge should have the power of punishing for contempt, any more than for any other offence. And it is one of the most dangerous powers a judge can have, because it gives him absolute authority in a court of justice, and enables him to tyrannize as he pleases over parties, counsel, witnesses, and jurors. If a judge have power to punish for contempt, and to determine for himself what is a contempt, the whole administration of justice (or injustice, if he choose to make it so) is in his hands. And all the rights of jurors, witnesses, counsel, and parties, are held subject to his pleasure, and can be exercised only agreeably to his will. He can of course control the entire proceedings in, and consequently the decision of, every cause, by restraining and punishing every one, whether party, counsel, witness, or juror, who presumes to offer anything contrary to his pleasure.

This arbitrary power, which has been usurped and exercised by judges to punish for contempt, has undoubtedly had much to do in subduing counsel into those servile, obsequious, and cowardly habits, which so universally prevail among them, and which have not only cost so many clients their rights, but have also cost the people so many of their liberties.

If any summary punishment for contempt be ever necessary, (as it probably is not,) beyond exclusion for the time being from the court-room, (which should be done, not as a punishment, but for self-protection, and the preservation of order,) the judgment for it should be given by the jury, (where the trial is before a jury,) and not by the court, for the jury, and not the court, are really the judges. For the same reason, exclusion from the court-room should be ordered only by the jury, in cases when the trial is before a jury, because they, being the real judges and triers of the cause, are entitled, if anybody, to the control of the court-room. In appeal courts, where no juries sit, it may be necessary—not as a punishment, but for self-protection, and the maintenance of order—that the court should exercise the power of excluding a person, for the time being, from the court-room; but there is no reason why they should proceed to sentence him as a criminal, without his being tried by a jury.

If the people wish to have their rights respected and protected in courts of justice, it is manifestly of the last importance that they jealously guard the liberty of parties, counsel, witnesses, and jurors, against all arbitrary power on the part of the court.

Certainly Mr. Hallam may very well say that “one may doubt whether these (the several cases he has mentioned) were in contemplation of the framers of Magna Carta”—that is, as exceptions to the rule requiring that all judgments, that are to be enforced “against a party’s goods or person,” be rendered by a jury.

Again, Mr. Hallam says, if the word vel be rendered by and, “the meaning will be, that no person shall be disseized, &c., except upon a lawful cause of action.” This is true; but it does not follow that any cause of action, founded on statute only, is therefore a “lawful cause of action,” within the meaning of legem terræ, or the Common Law. Within the meaning of the legem terræ of Magna Carta, nothing but a common law cause of action is a “lawful” one.

*

Hale says:

“The trial by jury of twelve men was the usual trial among the Normans, in most suits; especially in assizes, et juris utrum.”—1 Hale’s History of the Common Law, 219.

This was in Normandy, before the conquest of England by the Normans. See Ditto, p. 218.

Crabbe says:

“It cannot be denied that the practice of submitting causes to the decision of twelve men was universal among all the northern tribes (of Europe) from the very remotest antiquity.”—Crabbe’s History of the English Law, p. 32.

*

“The people, who in every general council or assembly could oppose and dethrone their sovereigns, were in little dread of their encroachments on their liberties; and kings, who found sufficient employment in keeping possession of their crowns, would not likely attack the more important privileges of their subjects.”

*

This office was afterwards committed to sheriffs. But even while the court was held by the lord, “the Lord was not judge, but the Pares (peers) only.”—Gilbert on the Court of Exchequer, 61-2.

*

The opinion expressed in the text, that the Witan had no legislative authority, is corroborated by the following authorities:

“From the fact that the new laws passed by the king and the Witan were laid before the shire-mote, (county court,) we should be almost justified in the inference that a second sanction was necessary before they could have the effect of law in that particular county.”—Dunham’s Middle Ages, Sec. 2, B. 2, Ch. 1. 57 Lardner’s Cab. Cyc., 53.

The “second sanction” required to give the legislation of the king and Witan the effect of law, was undoubtedly, I think, as a general thing, the sanction of a jury. I know of no evidence whatever that laws were ever submitted to popular vote in the county courts, as this author seems to suppose possible. Another mode, sometimes resorted to for obtaining the sanction of the people to the laws of the Witan, was, it seems, to persuade the people themselves to swear to observe them. Mackintosh says:

“The preambles of the laws (of the Witan) speak of the infinite number of liegemen who attended, as only applauding the measures of the assembly. But this applause was neither so unimportant to the success of the measures, nor so precisely distinguished from a share in legislation, as those who read history with a modern eye might imagine. It appears that under Athelstan expedients were resorted to, to obtain a consent to the law from great bodies of the people in their districts, which their numbers rendered impossible in a national assembly. That monarch appears to have sent commissioners to hold shire-gemotes or county meetings, where they proclaimed the laws made by the king and his counsellors, which, being acknowledged and sworn to at these folk-motes (meetings of the people) became, by their assent, completely binding on the whole nation.”—Mackintosh’s Hist. of England, Ch. 2. 45 Lardner’s Cab. Cyc., 75.

*

Page 31.

†

Hallam says, “It was, however, to the county court that an English freeman chiefly looked for the maintenance of his civil rights.”—2 Middle Ages, 392.

Also, “This (the county court) was the great constitutional judicature in all questions of civil right.”—Ditto, 395.

Also, “The liberties of these Anglo-Saxon thanes were chiefly secured, next to their swords and their free spirits, by the inestimable right of deciding civil and criminal suits in their own county courts.”—Ditto, 399.

*

“Alfred may, in one sense, be called the founder of these laws, (the Saxon,) for until his time they were an unwritten code, but he expressly says, ‘that I, Alfred, collected the good laws of our forefathers into one code, and also I wrote them down’—which is a decisive fact in the history of our laws well worth noting.”—Introduction to Gilbert’s History of the Common Pleas, p. 2, note.

Kelham says, “Let us consult our own lawyers and historians, and they will tell us * * that Alfrod, Edgar, and Edward the Confessor, were the great compilers and restorers of the English Laws.”—Kelham’s Preliminary Discourse to the Laws of William the Conqueror, p. 12. Appendix to Kelham’s Dictionary of the Norman Language.

“He (Alfred) also, like another Theodosius, collected the various customs that he found dispersed in the kingdom, and reduced and digested them into one uniform system, or code of laws, in his som-bec, or liber judicialis (judicial book). This he compiled for the use of the court baron, hundred and county court, the court-leet and sheriff’s tourn, tribunals which he established for the trial of all causes, civil and criminal, in the very districts wherein the complaints arose.”—4 Blackstone, 411.

Alfred himself says, “Hence I, King Alfred, gathered these together, and commanded many of those to be written down which our forefathers observed—those which I liked—and those which I did not like, by the advice of my Witan, I threw aside. For I durst not venture to set down in writing over many of my own, since I knew not what among them would please those that should come after us. But those which I met with either of the days of me, my kinsman, or of Offa, King of Mercia, or of Æthelbert, who was the first of the English who received baptism—those which appeared to me the justest—I have here collected, and abandoned the others. Then I, Alfred, King of the West Saxons, showed these to all my Witan, and they then said that they were all willing to observe them.”—Laws of Alfred, translated by R. Price, prefixed to Mackintosh’s History of England, vol. 1. 45 Lardner’s Cab. Cyc.

“King Edward * * projected and begun what his grandson, King Edward the Confessor, afterwards completed, viz., one uniform digest or body of laws to be observed throughout the whole kingdom, being probably no more than a revival of King Alfred’s code, with some improvements suggested by necessity and experience, particularly the incorporating some of the British, or, rather, Mercian customs, and also such of the Danish (customs) as were reasonable and approved, into the West Saxon Lage, which was still the ground-work of the whole. And this appears to be the best supported and most plausible conjecture, (for certainty is not to be expected,) of the rise and original of that admirable system of maxims and unwritten customs which is now known by the name of the common law, as extending its authority universally over all the realm, and which is doubtless of Saxon parentage.”—4 Blackstone, 412.

“By the Lex Terræ and Lex Regni is understood the laws of Edward the Confessor, confirmed and enlarged as they were by William the Conqueror; and this Constitution or Code of Laws is what even to this day are called ‘The Common Law of the Land.’ ”—Introduction to Gilbert’s History of the Common Pleas, p. 22, note.

*

Not the conqueror of the English people, (as the friends of liberty maintain,) but only of Harold the usurper.—See Hale’s History of the Common Law, ch. 5.

†

For all these codes see Wilkins’ Laws of the Anglo-Saxons.

“Being regulations adapted to existing institutions, the Anglo-Saxon statutes are concise and technical, alluding to the law which was then living and in vigor, rather than defining it. The same clauses and chapters are often repeated word for word, in the statutes of subsequent kings, showing that enactments which bear the appearance of novelty are merely declaratory. Consequently the appearance of a law, seemingly for the first time, is by no means to be considered as a proof that the matter which it contains is new; nor can we trace the progress of the Anglo-Saxon institutions with any degree of certainty, by following the dates of the statutes in which we find them first noticed. All arguments founded on the apparent chronology of the subjects included in the laws, are liable to great fallacies. Furthermore, a considerable portion of the Anglo-Saxon law was never recorded in writing. There can be no doubt but that the rules of inheritance were well established and defined; yet we have not a single law, and hardly a single document from which the course of the descent of land can be inferied. * * Positive proof cannot be obtained of the commencement of any institution, because the first written law relating to it may posssibly be merely confirmatory or declaratory; neither can the non-existence of any institution be inferred from the absence of direct evidence. Written laws were modified and controlled by customs of which no trace can be discovered, until after the lapse of centuries, although those usages must have been in constant vigor during the long interval of silence.”—1 Palgrave’s Rise and Progress of the English Commonwealth, 58-9.

*

Rapin says, “The customs now practised in England are, for the most part, the same as the Anglo-Saxons brought with them from Germany.”—Rapin’s Dissertation on the Government of the Anglo-Saxons, vol. 2, Oct. Ed., p. 138. See Kelborn’s Discourse before named.

*

Hallam says, “The county of Sussex contains sixty-five (‘hundreds’); that of Dorset forty-three; while Yorkshire has only twenty-six; and Lancashire but six.”—2 Middle Ages, 391.

*

Excepting also matters pertaining to the collection of the revenue, which were determined in the king’s court of exchequer. But even in this court it was the law “that none be amerced but by his peers.”—Mirror of Justices, 49.

†

“For the English laws, although not written, may, as it should seem, and that without any absurdity, be termed laws, (since this itself is law—that which pleases the prince has the force of law,) I mean those laws which it is evident were promulgated by the advice of the nobles and the authority of the prince, concerning doubts to be settled in their assembly. For if from the mere want of writing only, they should not be considered laws, then, unquestionably, writing would seem to confer more authority upon laws themselves, than either the equity of the persons constituting, or the reason of those framing them.”—Glanville’s Preface, p. 38. (Glanville was chief justice of Henry II., 1180.) 2 Turner’s History of the Anglo-Saxons, 280.

‡

Mackintosh’s History of England, ch. 3. Lardner’s Cabinet Cyclopædia, 266.

*

If the laws of the king were received as authoritative by the juries, what occasion was there for his appointing special commissioners for the trial of offences, without the intervention of a jury, as he frequently did, in manifest and acknowledged violation of Magna Carta, and “the law of the land?” These appointments were undoubtedly made for no other reason than that the juries were not sufficiently subservient, but judged according to their own notions of right, instead of the will of the king—whether the latter were expressed in his statutes, or by his judges.

†

Of course, Mr. Reeve means to be understood that, in the hundred court, and court-leet, the jurors were the judges, as he declares them to have been in the county court; otherwise the “bailiff” or “steward” must have been judge.

*

The jurors were sometimes called “assessors,” because they assessed, or determined the amount of fines and amercements to be imposed.

*

“The barons of the Hundred” were the freeholders. Hallam says: “The word baro, originally meaning only a man, was of very large significance, and is not unfrequently applied to common freeholders, as in the phrase court-baron.”—3 Middle Ages, 14-15.

Blackstone says: “The court-baron * * is a court of common law, and it is the court of the barons, by which name the freeholders were sometimes anciently called; for that it is held before the freeholders who owe suit and service to the manor.”—3 Blackstone, 33.

*

The ancient jury courts kept no records, because those who composed the courts could neither make nor read records. Their decisions were preserved by the memories of the jurors and other persons present.

*

Stuart says:

“The courts, or civil arrangements, which were modelled in Germany, preserved the independence of the people; and having followed the Saxons into England, and continuing their importance, they supported the envied liberty we boast of. * *

“As a chieftain led out his retainers to the field, and governed them during war; so in peace he summoned them together, and exerted a civil jurisdiction. He was at once their captain and their judge. They constituted his court; and having inquired with him into the guilt of those of their order whom justice had accused, they assisted him to enforce his decrees.

“This court (the court-baron) was imported into England; but the innovation which conquest introduced into the fashion of the times altered somewhat its appearance. * *

“The head or lord of the manor called forth his attendants to his hall. * * He inquired into the breaches of custom, and of justice, which were committed within the precincts of his territory; and with his followers, who sat with him as judges, he determined in all matters of debt, and of trespass to a certain amount. He possessed a similar jurisdiction with the chieftain in Germany, and his tenants enjoyed an equal authority with the German retainers.

“But a mode of administration which intrusted so much power to the great could not long be exercised without blame or injustice. The German, guided by the candor of his mind, and entering into all his engagements with the greatest ardor, perceived not, at first, that the chieftain to whom he submitted his disputes might be swayed, in the judgments he pronounced, by partiality, prejudice, or interest; and that the influence he maintained with his followers was too strong to be restrained by justice. Experience instructed him of his error; he acknowledged the necessity of appealing from his lord; and the court of the Hundred was erected.

“This establishment was formed both in Germany and England, by the inhabitants of a certain division, who extended their jurisdiction over the territory they occupied.* They bound themselves under a penalty to assemble at stated times; and having elected the wisest to preside over them, they judged, not only all civil and criminal matters, but of those also which regarded religion and the priesthood. The judicial power thus invested in the people was extensive; they were able to preserve their rights, and attended this court in arms.

“As the communication, however, and intercourse, of the individuals of a German community began to be wider, and more general, as their dealings enlarged, and as disputes arose among the members of different hundreds, the insufficiency of these courts for the preservation of order was gradually perceived. The shyre mote, therefore, or county court, was instituted; and it formed the chief source of justice both in Germany and England.

“The powers, accordingly, which had been enjoyed by the court of the hundred, were considerably impaired. It decided no longer concerning capital offences; it decided not concerning matters of liberty, and the property of estates, or of slaves; its judgments, in every case, became subject to review; and it lost entirely the decision of causes, when it delayed too long to consider them.

“Every subject of claim or contention was brought, in the first instance, or by appeal, to the county court; and the earl, or eorldorman, who presided there, was active to put the laws in execution. He repressed the disorders which fell out within the circuit of his authority; and the least remission in his duty, or the least fraud he committed, was complained of and punished. He was elected from among the great, and was above the temptation of a bribe; but, to encourage his activity, he was presented with a share of the territory he governed, or was entitled to a proportion of the fines and profits of justice. Every man, in his district, was bound to inform him concerning criminals, and to assist him to bring them to trial; and, as in rude and violent times the poor and helpless were ready to be oppressed by the strong, he was instructed particularly to defend them.

“His court was ambulatory, and assembled only twice a year, unless the distribution of justice required that its meetings should be oftener. Every freeholder in the county was obliged to attend it; and should he refuse this service, his possessions were seized, and he was forced to find surety for his appearance. The neighboring earls held not their courts on the same day; and, what seems very singular, no judge was allowed, after meals, to exercise his office.

“The druids also, or priests, in Germany, as we had formerly occasion to remark, and the clergy in England, exercised a jurisdiction in the hundred and county courts. They instructed the people in religious duties, and in matters regarding the priesthood; and the princes, earls, or eorldormen, related to them the laws and customs of the community. These judges were mutually a check to each other; but it was expected that they should agree in their judgments, and should willingly unite their efforts for the public interest.*

“But the prince or earl performed not, at all times, in person, the obligations of his office. The enjoyment of ease and of pleasure, to which in Germany he had delivered himself over, when disengaged from war, and the mean idea he conceived of the drudgery of civil affairs, made him often delegate to an inferior person the distribution of justice in his district. The same sentiments were experienced by the Saxon nobility; and the service which they owed by their tenures, and the high employments they sustained, called them often from the management of their counties. The progress, too, of commerce, giving an intricacy to cases, and swelling the civil code, added to the difficulty of their office, and made them averse to its duties. Sheriffs, therefore, or deputies, were frequently appointed to transact their business; and though these were at first under some subordination to the earls, they grew at length to be entirely independent of them. The connection of jurisdiction and territory ceasing to prevail, and the civil being separated from the ecclesiastical power, they became the sole and proper officers for the direction of justice in the counties.

“The hundred, however, and county courts, were not equal of themselves for the purposes of jurisdiction and order. It was necessary that a court should be erected, of supreme authority, where the disputes of the great should be decided, where the disagreeing sentiments of judges should be reconciled, and where protection should be given to the people against their fraud and injustice.

“The princes accordingly, or chief nobility, in the German communities, assembled together to judge of such matters. The Saxon nobles continued this prerogative; and the king, or, in his absence, the chief justiciary, watched over their deliberations. But it was not on every trivial occasion that this court interested itself. In smaller concerns, justice was refused during three sessions of the hundred, and claimed without effect, at four courts of the county, before there could lie an appeal to it.

“So gradually were these arrangements established, and so naturally did the varying circumstances in the situation of the Germans and Anglo-Saxons direct those successive improvements which the preservation of order, and the advantage of society, called them to adopt. The admission of the people into the courts of justice preserved, among the former, that equality of ranks for which they were remarkable; and it helped to overturn, among the latter, those envious distinctions which the feudal system tended to introduce, and prevented that venality in judges, and those arbitrary proceedings, which the growing attachment to interest, and the influence of the crown, might otherwise have occasioned.”—Stuart on the Constitution of England, p. 222 to 245.

“In the Anglo-Saxon period, accordingly, twelve only were elected; and these, together with the judge, or presiding officer of the district, being sworn to regard justice, and the voice of reason, or conscience, all causes were submitted to them.”—Ditto, p. 260.

“Before the orders of men were very nicely distinguished, the jurors were elected from the same rank. When, however, a regular subordination of orders was established, and when a knowledge of property had inspired the necessitous with envy, and the rich with contempt, every man was tried by his equals. The same spirit of liberty which gave rise to this regulation attended its progress. Nor could monarchs assume a more arbitrary method of proceeding. ‘I will not’ (said the Earl of Cornwall to his sovereign) ‘render up my castles, nor depart the kingdom, but by judgment of my peers.’ Of this institution, so wisely calculated for the preservation of liberty, all our historians have pronounced the eulogium.”—Ditto, p. 262-3.

Blackstone says:

“The policy of our ancient constitution, as regulated and established by the great Alfred, was to bring justice home to every man’s door, by constituting as many courts of judicature as there are manors and towns in the kingdom; wherein injuries were redressed in an easy and expeditious manner, by the suffrage of neighbors and friends. These little courts, however, communicated with others of a larger jurisdiction, and those with others of a still greater power; ascending gradually from the lowest to the supreme courts, which were respectively constituted to correct the errors of the inferior ones, and to determine such causes as, by reason of their weight and difficulty, demanded a more solemn discussion. The course of justice flowing in large streams from the king, as the fountain, to his superior courts of record; and being then subdivided into smaller channels, till the whole and every part of the kingdom were plentifully watered and refreshed. An institution that seems highly agreeable to the dictates of natural reason, as well as of more enlightened policy. * * *

“These inferior courts, at least the name and form of them, still continue in our legal constitution; but as the superior courts of record have, in practice, obtained a concurrent original jurisdiction, and as there is, besides, a power of removing plaints or actions thither from all the inferior jurisdictions; upon these accounts (among others) it has happened that these petty tribunals have fallen into decay, and almost into oblivion; whether for the better or the worse may be matter of some speculation, when we consider, on the one hand, the increase of expense and delay, and, on the other, the more able and impartial decisions that follow from this change of jurisdiction.

“The order I shall observe in discoursing on these several courts, constituted for the redress of civil injuries, (for with those of a jurisdiction merely criminal I shall not at present concern myself,*) will be by beginning with the lowest, and those whose jurisdiction, though public and generally dispersed through the kingdom, is yet (with regard to each particular court) confined to very narrow limits; and so ascending gradually to those of the most extensive and transcendent power.”—3 Blackstone, 30 to 32.

“The court-baron is a court incident to every manor in the kingdom, to be holden by the steuard within the said manor. This court-baron is of two natures; the one is a customary court, of which we formerly spoke, appertaining entirely to the copy-holders, in which their estates are transferred by surrender and admittance, and other matters transacted relative to their tenures only. The other, of which we now speak, is a court of common law, and it is a court of the barons, by which name the freeholders were sometimes anciently called; for that it is held by the freeholders who owe suit and service to the manor, the steward being rather the registrar than the judge. These courts, though in their nature distinct, are frequently confounded together. The court we are now considering, viz., the freeholders court, was composed of the lord’s tenants, who were the pares (equals) of each other, and were bound by their feudal tenure to assist their lord in the dispensation of domestic justice. This was formerly held every three weeks; and its most important business is to determine, by writ of right, all controversies relating to the right of lands within the manor. It may also hold plea of any personal actions, of debt, trespass in the case, or the like, where the debt or damages do not amount to forty shillings; which is the same sum, or three marks, that bounded the jurisdiction of the ancient Gothic courts in their lowest instance, or fierding courts, so called because four were instituted within every superior district or hundred.”—3 Blackstone, 33, 34.

“A hundred court is only a larger court-baron, being held for all the inhabitants of a particular hundred, instead of a manor. The free suitors are here also the judges, and the steward the registrar, as in the case of a court-baron. It is likewise no court of record, resembling the former at all points, except that in point of territory it is of greater jurisdiction. This is said by Sir Edward Coke to have been derived out of the county court for the ease of the people, that they might have justice done to them at their own doors, without any charge or loss of time; but its institution was probably coeval with that of hundreds themselves, which were formerly observed to have been introduced, though not invented, by Alfred, being derived from the polity of the ancient Germans. The centeni, we may remember, were the principal inhabitants of a district composed of different villages, originally in number a hundred, but afterward only called by that name, and who probably gave the same denomination to the district out of which they were chosen. Cæsar speaks positively of the judicial power exercised in their hundred courts and courts-baron. ‘Princeps regiorum atque pagorum’ (which we may fairly construe the lords of hundreds and manors) ‘inter suos jus dicunt, controversias que minuunt.’ (The chiefs of the country and the villages declare the law among them, and abate controversies.) And Tacitus, who had examined their constitution still more attentively, informs us not only of the authority of the lords, but that of the centeni, the hundreders, or jury, who were taken out of the common freeholders, and had themselves a share in the determination. ‘Eliguntur in conciliis et principes, qui jura per pagos vicosque reddunt, centeni singulis, ex plebe comites concilium simul et auctoritas adsunt.’ (The princes are chosen in the assemblies, who administer the laws throughout the towns and villages, and with each one are associated an hundred companions, taken from the people, for purposes both of counsel and authority.) This hundred court was denominated hæreda in the Gothic constitution. But this court, as causes are equally liable to removal from hence as from the common court-baron, and by the same writs, and may also be reviewed by writ of false judgment, is therefore fallen into equal disuse with regard to the trial of actions.”—3 Blackstone, 34, 35.

“The county court is a court incident to the jurisdiction of the sheriff. It is not a court of record, but may hold pleas of debt, or damages, under the value of forty shillings; over some of which causes these inferior courts have, by the express words of the statute of Gloucester, (6 Edward I., ch. 8,) a jurisdiction totally exclusive of the king’s superior courts. * * The county court may also hold plea of many real actions, and of all personal actions to any amount, by virtue of a special writ, called a justicies, which is a writ empowering the sheriff, for the sake of despatch, to do the same justice in his county court as might otherwise be had at Westminster. The freeholders of the county court are the real judges in this court, and the sheriff is the ministerial officer. * * * In modern times, as proceedings are removable from hence into the king’s superior courts, by writ of pone or recordari, in the same manner as from hundred courts and courts-baron, and as the same writ of false judgment may be had in nature of a writ of error, this has occasioned the same disuse of bringing actions therein.”—3 Blackstone, 36, 37.

“Upon the whole, we cannot but admire the wise economy and admirable provision of our ancestors in settling the distribution of justice in a method so well calculated for cheapness, expedition, and case. By the constitution which they established, all trivial debts, and injuries of small consequence, were to be recovered or redressed in every man’s own county, hundred, or perhaps parish.”—3 Blackstone, 59.

*

“It was the freemen in Germany, and the possessors of land in England, who were suitors (jurors) in the hundred court. These ranks of men were the same. The alteration which had happened in relation to property had invested the German freemen with land or territory.”

*

It would be wholly erroneous, I think, to infer from this statement of Stuart, that either the “priests, princes, earls, or eorldormen” exercised any authority over the jury in the trial of causes, in the way of dictating the law to them. Henry’s account of this matter doubtless gives a much more accurate representation of the truth. He says that anciently.

“The meeting (the county court) was opened with a discourse by the bishop, explaining, out of the Scriptures and ecclesiastical canons, their several duties as good Christians and members of the church. After this, the alderman, or one of his assessors, made a discourse on the laws of the land, and the duties of good subjects and good citizens. When these preliminaries were over, they proceeded to try and determine, first the causes of the church, next the pleas of the crown, and last of all the controversies of private parties.”—3 Henry’s History of Great Britain, 348.

This view is corroborated by Tyrrell’s Introduction to the History of England, p. 83-84, and by Spence’s Origin of the Laws and Political Institutions of Modern Europe, p. 447, and the note on the same page. Also by a law of Canute to this effect, In every county let there be twice a year an assembly, whereat the bishop and the earl shall be present, the one to instruct the people in divine, the other in human, laws.—Wilkins, p. 136.

*

There was no distinction between the civil and criminal courts, as to the rights or powers of juries.

*

1 Blackstone, 63-67.

*

This quaint and curious book (Smith’s Commonwealth of England) describes the minutiæ of trials, giving in detail the mode of impanelling the jury, and then the conduct of the lawyers, witnesses, and court. I give the following extracts, tending to show that the judges impose no law upon the juries, in either civil or criminal cases, but only require them to determine the causes according to their consciences.

In civil causes he says:

“When it is thought that it is enough plended before them, and the witnesses have said what they can, one of the judges, with a brief and pithy recapitulation, reciteth to the twelve in sum the arguments of the sergeants of either side, that which the witnesses have declared, and the chief points of the evidence showed in writing, and once again putteth them in mind of the issue, and sometime giveth it them in writing, delivering to them the evidence which is showed on either part, if any be, (evidence here is called writings of contracts, authentical after the manner of England, that is to say, written, sealed, and delivered,) and biddeth them go together.”—p. 74.

This is the whole account given of the charge to the jury.

In criminal cases, after the witnesses have been heard, and the prisoner has said what he pleases in his defence, the book proceeds:

“When the judge hath heard them say enough, he asketh if they can say any more: If they say no, then he turneth his speech to the inquest. ‘Good men, (saith he,) ye of the inquest, ye have heard what these men say against the prisoner. You have also heard what the prisoner can say for himself. Have an eye to your oath, and to your duty, and do that which God shall put in your minds to the discharge of your consciences, and mark well what is said.’ ”—p. 92.

This is the whole account given of the charge in a criminal case.

The following statement goes to confirm the same idea, that jurors in England have formerly understood it to be their right and duty to judge only according to their consciences, and not to submit to any dictation from the court, either as to law or fact.

“If having pregnant evidence, nevertheless, the twelve do acquit the malefactor, which they will do sometime, especially if they perceive either one of the justices or of the judges, or some other man, to pursue too much and too maliciously the death of the prisoner, * * the prisoner escapeth; but the twelve (are) not only rebuked by the judges, but also threatened of punishment; and many times commanded to appear in the Star-Chamber, or before the Privy Council for the matter. But this threatening chanceth oftener than the execution thereof; and the twelve answer with most gentle words, they did it according to their consciences, and pray the judges to be good unto them, they did as they thought right, and as they accorded all, and so it passeth away for the most part.”—p. 100.

The account given of the trial of a peer of the realm corroborates the same point:

“If any duke, marquis, or any other of the degrees of a baron, or above, lord of the Parliament, be appeached of treason, or any other capital crime, he is judged by his peers and equals; that is, the yeomanry doth not go upon him, but an inquest of the Lords of Parliament, and they give their voice not one for all, but each severally as they do in Parliament, being (beginning) at the youngest lord. And for judge one lord sitteth, who is constable of England for that day. The judgment once given, he breaketh his staff, and abdicateth his office. In the rest there is no difference from that above written,” (that is, in the case of a freeman.)—p. 98.

*

“The present form of the jurors’ oath is that they shall ‘give a true verdict according to the evidence.’ At what time this form was introduced is uncertain; but for several centuries after the Conquest, the jurors, both in civil and criminal cases, were sworn merely to speak the truth. (Glanville, lib. 2, cap. 17; Bracton, lib. 3, cap. 22; lib. 4, p. 287, 291; Britton, p. 135.) Hence their decision was accurately termed veredictum, or verdict, that is, ‘a thing truly said’; whereas the phrase ‘true verdict’ in the modern oath is not an accurate expression.”—Political Dictionary, word Jury.

*

Of course, there can be no legal trial by jury, in either civil or criminal cases, where the jury are sworn to try the cases “according to law.”

*

Coke, as late as 1588, admits that amercements must be fixed by the peers (8 Coke’s Rep. 38, 2 Inst. 27); but he attempts, wholly without success, as it seems to me, to show a difference between fines and amercements. The statutes are very numerous, running through the three or four hundred years immediately succeeding Magna Carta, in which fines, ransoms, and amercements are spoken of as if they were the common punishments of offences, and as if they all meant the same thing. If, however, any technical difference could be made out between them, there is clearly none in principle; and the word amercement, as used in Magna Carta, must be taken in its most comprehensive sense.

*

“Common right” was the common law. 1 Coke’s Inst. 142 a. 2 do. 55, 6.

*

The oath of the justices is in these words:

“Ye shall swear, that well and lawfully ye shall serve our lord the king and his people, in the office of justice, and that lawfully ye shall counsel the king in his business, and that ye shall not counsel nor assent to anything which may turn him in damage or disherison in any manner, way, or color. And that ye shall not know the damage or disherison of him, whereof ye shall not cause him to be warned by yourself, or by other; and that ye shall do equal law and execution of right to all his subjects, rich and poor, without having regard to any person. And that ye take not by yourself, or by other, privily nor apertly, gift nor reward of gold nor silver, nor of any other thing that may turn to your profit, unless it be meat or drink, and that of small value, of any man that shall have any plea or process hanging before you, as long as the same process shall be so hanging, nor after for the same cause. And that ye take no fee, as long as ye shall be justice, nor robe of any man great or small, but of the king himself. And that ye give none advice or counsel to no man great or small, in no case where the king is party. And in case that any, of what estate or condition they be, come before you in your sessions with force and arms, or otherwise against the peace, or against the form of the statute thereof made, to disturb execution of the common law,” (mark the term, “common law,”) “or to menace the people that they may not pursue the law, that ye shall cause their bodies to be arrested and put in prison; and in case they be such that ye cannot arrest them, that ye certify the king of their names, and of their misprision, hastily, so that he may thereof ordain a convenable remedy. And that ye by yourself, nor by other, privily nor apertly, maintain any plea or quarrel hanging in the king’s court, or elsewhere in the country. And that ye deny no man common right by the king’s letters, nor none other man’s, nor for none other cause; and in case any letters come to you contrary to the law,” (that is, the “common law” before mentioned,) “that ye do nothing by such letters, but certify the king thereof, and proceed to execute the law,” (the “common law” before mentioned,) “notwithstanding the same letters. And that ye shall do and procure the profit of the king and of his crown, with all things where ye may reasonably do the same. And in case ye be from henceforth found in default in any of the points aforesaid, ye shall be at the king’s will of body, lands, and goods, thereof to be done as shall please him, as God you help and all saints.”—18 Edward III., st. 4. (1344.)

*

That the terms “Law” and “Right,” as used in this statute, mean the common law, is shown by the preamble, which declares the motive of the statute to be that “the Law of the Land, (the common law,) which we (the king) by our oath are bound to maintain,” may be the better kept, &c.

*

The following is a copy of the original:

“Forma Juramenti Regis Angliœ in Coronacione sua:

(Archiepiscopus Cantuariæ, ad quo de jure et consuetudine Ecclesiæ Cantuariæ, antiqua et approbata, pertinet Reges Angliæ inungere et coronare, die coronacionis Regis, anteque Rex coronetur, faciet Regi Interrogationes subscriptas.)

Si leges et consuetudines ab antiquis justis et Deo devotis Regibus plebi Anglicano concessas, cum sacramenti confirmacione eidem plebi concedere et servare (volueris:) Et præsertim leges et consuetudines et libertates a glorioso Rege Edwardo clero populoque concessas?

(Et respondeat Rex,) Concedo et servare volo, et sacramento confirmare.

Servabis Ecclesiæ Dei, Cleroque, et Populo, pacem ex integro et concordiam in Deo secundum vires tuas?

(Et respondeat Rex,) Servabo.

Facies fleri in omnibus Judiciis tuis equam et rectam justiciam, et discrecionem, in misericordia et veritate, secundum vires tuas?

(Et respondeat Rex,) Faciam.

Concedis justas, leges et consuetudines esse tenendas, et promittis per te eas esse protegendas, et ad honorem Dei corroborandas, quas vulgus elegit, secundum vires tuas?

(Et respondeat Rex,) Concedo et promitto.”

*

It would appear, from the text, that the Charter of Liberties and the Charter of the Forest were sometimes called “laws of the land.”

*

As the ancient coronation oath, given in the text, has come down from the Saxon times, the following remarks of Palgrave will be pertinent, in connection with the oath, as illustrating the fact that, in those times, no special authority attached to the laws of the king:

“The Imperial Witenagemot was not a legislative assembly, in the strict sense of the term, for the whole Anglo-Saxon empire. Promulgating his edicts amidst his peers and prelates, the king uses the language of command; but the theoretical prerogative was modified by usage, and the practice of the constitution required that the law should be accepted by the legislatures (courts) of the several kingdoms. * * The ‘Basilcus’ speaks in the tone of prerogative: Edgar does not merely recommend, he commands that the law shall be adopted by all the people, whether English, Danes, or Britons, in every part of his empire. Let this statute be observed, he continues, by Earl Oslac, and all the host who dwell under his government, and let it be transmitted by writ to the ealdormen of the other subordinate states. And yet, in defiance of this positive injunction, the laws of Edgar were not accepted in Mercia until the reign of Canute the Dane. It might be said that the course so adopted may have been an exception to the general rule; but in the scanty and imperfect annals of Anglo-Saxon legislation, we shall be able to find so many examples of similar proceedings, that this mode of enactment must be considered as dictated by the constitution of the empire. Edward was the supreme lord of the Northumbrians, but more than a century elapsed before they obeyed his decrees. The laws of the glorious Athelstane had no effect in Kent, (county,) the dependent appanage of his crown, until sanctioned by the Witan of the shire (county court). And the power of Canute himself, the ‘King of all England,’ does not seem to have compelled the Northumbrians to receive his code, until the reign of the Confessor, when such acceptance became a part of the compact upon the accession of a new earl.

Legislation constituted but a small portion of the ordinary business transacted by the Imperial Witenagemot. The wisdom of the assembly was shown in avoiding unnecessary change. Consisting principally of traditionary usages and ancestorial customs, the law was upheld by opinion. The people considered their jurisprudence as a part of their inheritance. Their privileges and their duties were closely conjoined; most frequently, the statutes themselves were only affirmances of ancient customs, or declaratory enactments. In the Anglo-Saxon commonwealth, therefore, the legislative functions of the Witenagemot were of far less importance than the other branches of its authority. * * The members of the Witenagemot were the ‘Pares Curiæ’ (Peers of Court) of the kingdom. How far, on these occasions, their opinion or their equity controlled the power of the crown, cannot be ascertained. But the form of inserting their names in the ‘Testing Clause’ was retained under the Anglo-Norman reigns; and the sovereign, who submitted his Charter to the judgment of the Proceres, professed to be guided by the opinion which they gave. As the ‘Pares’ of the empire, the Witenagemot decided the disputes between the great vassals of the crown. * * The jurisdiction exercised in the Parliament of Edward I., when the barony of a Lord-Marcher became the subject of litigation, is entirely analogous to the proceedings thus adopted by the great council of Edward, the son of Alfred, the Anglo-Saxon king.

In this assembly, the king, the prelates, the dukes, the ealdormen, and the optimates passed judgment upon all great offenders. * *

The sovereign could not compel the obedience of the different nations composing the Anglo-Saxon empire. Hence, it became more necessary for him to conciliate their opinions, if he solicited any service from a vassal prince or a vassal state beyond the ordinary terms of the compact; still more so, when he needed the support of a free burgh or city. And we may view the assembly (the Witenagemot) as partaking of the character of a political congress, in which the liegemen of the crown, or the communities protected by the ‘Basileus,’ (sovereign,) were asked or persuaded to relieve the exigenoes of the state, or to consider those measures which might be required for the common weal. The sovereign was compelled to parley with his dependents.

It may be doubted whether any one member of the empire had power to legislate for any other member. The Regulus of Cumbria was unaffected by the vote of the Earl of East Angliæ, if he chose to stand out against it. These dignitaries constituted a congress, in which the sovereign could treat more conveniently and effectually with his vassals than by separate negotiations. * * But the determinations of the Witan bound those only who were present, or who concurred in the proposition; and a vassal denying his assent to the grant, might assert that the engagement which he had contracted with his superior did not involve any pecuniary subsidy, but only rendered him liable to perform service in the field.”—1 Palgrave’s Rise and Progress of the English Commonwealth, 637 to 642.

*

Marches, the limits, or boundaries, between England and Wales.

*

That the kings would have had no scruples to enact laws for the special purpose of plundering the people, by means of the judgments of juries, if they could have got juries to acknowledge the authority of their laws, is evident from the audacity with which they plundered them, without any judgments of juries to authorize them.

It is not necessary to occupy space here to give details as to these robberies; but only some evidence of the general fact.

Hallam says, that “For the first three reigns (of the Norman kings) * * the intolerable exactions of tribute, the rapine of purveyance, the iniquity of royal courts, are continually in the mouths of the historians. ‘God sees the wretched people,’ says the Saxon Chronicler, ‘most unjustly oppressed; first they are despoiled of their possessions, and then butchered.’ This was a grievous year (1124). Whoever had any property, lost it by heavy taxes and unjust decrees.”—2 Middle Ages, 435-6.

“In the succeeding reign of John, all the rapacious exactions usual to these Norman kings were not only redoubled, but mingled with outrages of tyranny still more intolerable. * *

“In 1207 John took a seventh of the movables of lay and spiritual persons, all murmuring, but none daring to speak against it.”—Ditto, 446.

In Hume’s account of the extortions of those times, the following paragraph occurs:

“But the most barefaced acts of tyranny and oppression were practised against the Jews, who were entirely out of the protection of the law, and were abandoned to the immeasurable rapacity of the king and his ministers. Besides many other indignities, to which they were continually exposed, it appears that they were once all thrown into prison, and the sum of 66,000 marks exacted for their liberty. At another time, Isaac, the Jew, paid alone 5100 marks; Brun, 3000 marks; Jurnet, 2000; Bennet, 500. At another, Licorica, widow of David, the Jew of Oxford, was required to pay 6000 marks.”—Hume’s Hist. Eng., Appendix 2.

Further accounts of the extortions and oppressions of the kings may be found in Hume’s History, Appendix 2, and in Hallam’s Middle Ages, vol. 2, p. 435 to 446.

By Magna Carta John bound himself to make restitution for some of the spoliations he had committed upon individuals “without the legal judgment of their peers.”—See Magna Carta of John, ch. 60, 61, 65 and 66.

One of the great charges, on account of which the nation rose against John, was, that he plundered individuals of their property, “without legal judgment of their peers.” Now it was evidently very weak and short-sighted in John to expose himself to such charges, if his laws were really obligatory upon the peers; because in that case, he could have enacted any laws that were necessary for his purpose, and then, by civil suits, have brought the cases before juries for their “judgment,” and thus have accomplished all his robberies in a perfectly legal manner.

There would evidently have been no sense in these complaints, that he deprived men of their property “without legal judgment of their peers,” if his laws had been binding upon the peers; because he could then have made the same spoliations as well with the judgment of the peers as without it. Taking the judgment of the peers in the matter, would have been only a ridiculous and useless formality, if they were to exercise no discretion or conscience of their own, independently of the laws of the king.

It may here be mentioned, in passing, that the same would be true in criminal matters, if the king’s laws were obligatory upon juries.

As an illustration of what tyranny the kings would sometimes practise, Hume says:

“It appears from the Great Charter itself, that not only John, a tyrannical prince, and Richard, a violent one, but their father Henry, under whose reign the prevalence of gross abuses is the least to be suspected, were accustomed, from their sole authority, without process of law, to imprison, banish, and attaint the freemen of their kingdom.”—Hume, Appendix 2.

The provision, also, in the 64th chapter of Magna Carta, that “all unjust and illegal fines, and all amercements, imposed unjustly, and contrary to the Law of the Land, shall be entirely forgiven,” &c.; and the provision, in chapter 61, that the king “will cause full justice to be administered” in regard to “all those things, of which any person has, without legal judgment of his peers, been dispossessed or deprived, either by King Henry, our father, or our brother, King Richard,” indicate the tyrannical practices that prevailed.

We are told also that John himself “had dispossessed several great men without any judgment of their peers, condemned others to cruel deaths, * * insomuch that his tyrannical will stood instead of a law.”—Echard’s History of England, 106.

Now all these things were very unnecessary and foolish, if his laws were binding upon juries; because, in that case, he could have procured the conviction of these men in a legal manner, and thus have saved the necessity of such usurpation. In short, if the laws of the king had been binding upon juries, there is no robbery, vengeance, or oppression, which he could not have accomplished through the judgments of juries. This consideration is sufficient, of itself, to prove that the laws of the king were of no authority over a jury, in either civil or criminal cases, unless the juries regarded the laws as just in themselves.

*

By the Magna Carta of Henry III. this is changed to once a year.

†

From the provision of Magna Carta, cited in the text, it must be inferred that there can be no legal trial by jury, in civil cases, if only the king’s justices preside; that, to make the trial legal, there must be other persons, chosen by the people, to sit with them; the object being to prevent the jury’s being deceived by the justices. I think we must also infer that the king’s justices could sit only in the three actions specially mentioned. We cannot go beyond the letter of Magna Carta, in making innovations upon the common law, which required all presiding officers in jury trials to be elected by the people.

*

“The earls, sheriffs, and head-boroughs were annually elected in the full folcmote, (people’s meeting).”—Introduction to Gilbert’s History of the Common Pleas, p. 2, note.

“It was the especial province of the earldomen or earl to attend the shyre-meeting, (the county court,) twice a year, and there officiate as the county judge in expounding the secular laws, as appears by the fifth of Edgar’s laws.”—Same, p. 2, note.

“Every ward had its proper alderman, who was chosen, and not imposed by the prince.”—Same, p. 4, text.

“As the aldermen, or earls, were always chosen” (by the people) “from among the greatest thanes, who in those times were generally more addicted to arms than to letters, they were but ill-qualified for the administration of justice, and performing the civil duties of their office.”—3 Henry’s History of Great Britain, 343.

“But none of these thanes were annually elected in the full folcmote, (people’s meeting,) as the earls, sheriffs, and head-boroughs were; nor did King Alfred (as this author suggests) deprive the people of the election of those last mentioned magistrates and nobles, much less did he appoint them himself.”—Introd. to Gilbert’s Hist. Com. Pleas, p. 2, note.

“The sheriff was usually not appointed by the lord, but elected by the freeholders of the district.”—Political Dictionary, word Sheriff.

“Among the most remarkable of the Saxon laws we may reckon * * the election of their magistrates by the people, originally even that of their kings, till dear-bought experience evinced the convenience and necessity of establishing an hereditary succession to the crown. But that (the election) of all subordinate magistrates, their military officers or heretochs, their sheriffs, their conservators of the peace, their coroners, their portreeves, (since changed into mayors and bailiffs,) and even their tithing-men and borsholders at the last, continued, some, till the Norman conquest, others for two centuries after, and some remain to this day.”—4 Blackstone, 413.

“The election of sheriffs was left to the people, according to ancient usage.”—St. West. I, c. 27.—Crabbe’s History of English Law, 181.

*

Judges do not even live up to that part of their own maxim, which requires jurors to try the matter of fact. By dictating to them the laws of evidence,—that is, by dictating what evidence they may hear, and what they may not hear, and also by dictating to them rules for weighing such evidence as they permit them to hear,—they of necessity dictate the conclusion to which they shall arrive. And thus the court really tries the question of fact, as well as the question of law, in every cause. It is clearly impossible, in the nature of things, for a jury to try a question of fact, without trying every question of law on which the fact depends.

*

Most disagreements of juries are on matters of fact, which are admitted to be within their province. We have little or no evidence of their disagreements on matters of natural justice. The disagreements of courts on matters of law, afford little or no evidence that juries would also disagree on matters of law—that is, of justice; because the disagreements of courts are generally on matters of legislation, and not on those principles of abstract justice, by which juries would be governed, and in regard to which the minds of men are nearly unanimous.

*

This is the principle of all voluntary associations whatsoever. No voluntary association was ever formed, and in the nature of things there never can be one formed, for the accomplishment of any objects except those in which all the parties to the association are agreed. Government, therefore, must be kept within these limits, or it is no longer a voluntary association of all who contribute to its support, but a mere tyranny established by a part over the rest.

All, or nearly all, voluntary associations give to a majority, or to some other portion of the members less than the whole, the right to use some limited discretion as to the means to be used to accomplish the ends in view; but the ends themselves to be accomplished are always precisely defined, and are such as every member necessarily agrees to, else he would not voluntarily join the association.

Justice is the object of government, and those who support the government, must be agreed as to the justice to be executed by it, or they cannot rightfully unite in maintaining the government itself.

*

Jones on Bailments, 133.

†

Kent, describing the difficulty of construing the written law, says:

“Such is the imperfection of language, and the want of technical skill in the makers of the law, that statutes often give occasion to the most perplexing and distressing doubts and discussions, arising from the ambiguity that attends them. It requires great experience, as well as the command of a perspicuous diction, to frame a law in such clear and precise terms, as to secure it from ambiguous expressions, and from all doubts and criticisms upon its meaning.”—Kent, 460.

The following extract from a speech of Lord Brougham, in the House of Lords, confesses the same difficulty:

“There was another subject, well worthy of the consideration of government during the recess,—the expediency, or rather the absolute necessity, of some arrangement for the preparation of bills, not merely private, but public bills, in order that legislation might be consistent and systematic, and that the courts might not have so large a portion of their time occupied in endeavoring to construe acts of Parliament, in many cases unconstruable, and in most cases difficult to be construed.”—Law Reporter, 1848, p. 525.

*

This condemnation of written laws must, of course, be understood as applying only to cases where principles and rights are involved, and not as condemning any governmental arrangements, or instrumentalities, that are consistent with natural right, and which must be agreed upon for the purpose of carrying natural law into effect. These things may be valied, as expediency may dictate, so only that they be allowed to infringe no principle of justice. And they must, of course, be written, because they do not exist as fixed principles, or laws in nature.

*

On the English Constitution.

*

Although all the freemen are legally eligible as jurors, any one may nevertheless be challenged and set aside, at the trial, for any special personal disqualification; such as mental or physical inability to perform the duties; having been convicted, or being under charge, of crime; interest, bias, &c. But it is clear that the common law allows none of these points to be determined by the court, but only by “triers.”

†

What was the precise meaning of the Saxon word, which I have here called elderly, I do not know. In the Latin translations it is rendered by seniores, which may perhaps mean simply those who have attained their majority.

*

In 1483 it was enacted, by a statute entitled “Of what credit and estate those jurors must be which shall be impanelled in the Sheriff’s Turn.”

“That no bailiff nor other officer from henceforth return or impanel any such person in any shire of England, to be taken or put in or upon any inquiry in any of the said Turns, but such as be of good name and fame, and having lands and tenements of freehold within the same shires, to the yearly value of twenty shillings at the least, or else lands and tenements helden by custom of manor, commonly called copy-hold, within the said shires, to the yearly value of twenty-six shillings eight pence over all charges at the least.”—1 Richard III., ch. 4. (1483.)

In 1486 it was enacted, “That the justices of the peace of every shire of this realm for the time being may take, by their discretion, an inquest, whereof every man shall have lands and tenements to the yearly value of forty shillings at the least, to inquire of the concealments of others,” &c., &c.—3 Henry VII., ch. 1. (1486.)

A statute passed in 1494, in regard to jurors in the city of London, enacts:

“That no person nor persons hereafter be impanelled, summoned, or sworn in any jury or inquest in courts within the same city, (of London,) except he be of lands, tenements, or goods and chattels, to the value of forty marks;* and that no person or persons hereafter be impanelled, summoned, nor sworn in any jury or inquest in any court within the said city, for lands or tenements, or action personal, wherein the debt or damage amounteth to the sum of forty marks, or above, except he be in lands, tenements, goods, or chattels, to the value of one hundred marks.”—11 Henry VII., ch. 21. (1494.)

The statute 4 Henry VIII., ch. 3, sec. 4, (1512) requires jurors in London to have “goods to the value of one hundred marks.”

In 1494 it was enacted that “It shall be lawful to every sheriff of the counties of Southampton, Surry, and Sussex, to impanel and summons twenty-four lawful men of such, inhabiting within the precinet of his or their turns, as owe suit to the same turn, whereof every one hath lands or freehold to the yearly value of ten shillings, or copy-hold lands to the yearly value of thirteen shillings four pence, above all charges within any of the said counties, or men of less livelihood, if there be not so many there, notwithstanding the statute of 1 Richard III., ch. 4. To endure to the next parliament.”—11 Henry VII., ch. 26. (1494.)

This statute was continued in force by 19 Henry VII., ch. 16. (1503.)

In 1531 it was enacted, “That every person or persons, being the king’s natural subject born, which either by the name of citizen, or of a freeman, or any other name, doth enjoy and use the liberties and privileges of any city, borough, or town corporate, where he dwelleth and maketh his abode, being worth in movable goods and substance to the clear value of forty pounds, be henceforth admitted in trials of murders and felonies in every sessions and gaol delivery, to be kept and holden in and for the liberty of such cities, boroughs, and towns corporate, albeit they have no freehold; any act, statute, use, custom, or ordinance to the contrary hereof notwithstanding.”—23 Henry VIII., ch. 13. (1531.)

In 1585 it was enacted, “That in all cases where any jurors to be returned for trial of any issue or issues joined in any of the Queen’s majesty’s courts of King’s Bench, Common Pleas, and the Exchequer, or before justices of assize, by the laws of this realm now in force, ought to have estate of freehold in lands, tenements, or hereditaments, of the clear yearly value of forty shillings, that in every such case the jurors that shall be returned from and after the end of this present session of parliament, shall every of them have estate of freehold in lands, tenements, or hereditaments, to the clear yearly value of four pounds at the least.”—27 Elizabeth, ch. 6. (1585.)

In 1664-5 it was enacted, “That all jurors (other than strangers upon trials per medictatem linguæ) who are to be returned for the trials of issues joined in any of (his) majesty’s courts of king’s bench, common pleas, or the exchequer, or before justices of assize, or nisi prius, oyer and terminer, gaol delivery, or general or quarter sessions of the peace, from and after the twentieth day of April, which shall be in the year of our Lord one thousand six hundred and sixty-five, in any county of this realm of England, shall every of them then have, in their own name, or in trust for them, within the same county, twenty pounds by the year, at least, above reprises, in their own or their wives’ right, of freehold lands, or of ancient demesne, or of rents in fee, fee-tail, or for life. And that in every county within the dominion of Wales every such juror shall then, have, within the same, eight pounds by the year, at the least, above reprises, in manner aforesaid. All which persons having such estato as aforesaid are hereby enabled and made liable to be returned and serve as jurors for the trial of issues before the justices aforesaid, any law or statute to the contrary in any wise notwithstanding,”—16 and 17 Charles II., ch. 3. (1664-5.)

By a statute passed in 1692, jurors in England are to have landed estates of the value of ten pounds a year; and jurors in Wales to have similar estates of the realm of six pounds a year,—4 and 5 William and Mary, ch. 24, sec. 14. (1692.)

By the same statute, (sec. 18,) persons may be returned to serve upon the tales in any county of England, who shall have, within the same county, five pounds by the year, above reprises, in the manner aforesaid.

By St. 3 George II., ch. 25, sec. 19, 20, no one is to be a juror in London, who shall not be “an householder within the said city, and have lands, tenements, or personal estate, to the value of one hundred pounds.”

By another statute, applicable only to the county of Middlesex, it is enacted.

“That all leaseholders, upon leases where the improved rents or value shall amount to fifty pounds or upwards per annum, over and above all ground rents or other reservations payable by virtue of the said leases, shall be liable and obliged to serve upon juries when they shall be legally summoned for that purpose,”—4 George II., ch. 7, sec. 3. (1731.)

*

A mark was thirteen shillings and four pence.

*

Suppose these statutes, instead of disfranchising all whose freeholds were of less than the standard value fixed by the statutes, had disfranchised all whose freeholds were of greater value than the same standard—would anybody ever have doubted that such legislation was inconsistent with the English constitution; or that it amounted to an entire abolition of the trial by jury? Certainly not. Yet it was as clearly inconsistent with the common law, or the English constitution, to disfranchise those whose freeholds fell below any arbitrary standard fixed by the government, as it would have been to disfranchise all whose freeholds rose above that standard.

*

Lingard says: “These compurgators or jurors * * were sometimes * * drawn by lot.”—1 Lingard’s History of England, p. 300.

*

Chapter 4, p. 120, note.

*

The proofs of this principle of the common law have already been given on page 120, note.

There is much confusion and contradiction among authors as to the manner in which sheriffs and other officers were appointed; some maintaining that they were appointed by the king, others that they were elected by the people. I imagine that both these opinions are correct, and that several of the king’s officers bore the same official names as those chosen by the people; and that this is the cause of the confusion that has arisen on the subject.

It seems to be a perfectly well established fact that, at common law, several magistrates, bearing the names of aldermen, sheriffs, stewards, coroners and bailiffs, were chosen by the people; and yet it appears, from Magna Carta itself, that some of the king’s officers (of whom he must have had many) were also called “sheriffs, constables, coroners, and bailiffs.”

But Magna Carta, in various instances, speaks of sheriffs and bailiffs as “our sheriffs and bailiffs;” thus apparently intending to recognize the distinction between officers of the king, bearing those names, and other officers, bearing the same official names, but chosen by the people. Thus it says that “no sheriff or bailiff of ours, or any other (officer), shall take horses or carts of any freeman for carriage, unless with the consent of the freeman himself.”—John’s Charter, ch. 36.

In a kingdom subdivided into so many counties, hundreds, tithings, manors, cities and boroughs, each having a judicial or police organization of its own, it is evident that many of the officers must have been chosen by the people, else the government could not have maintained its popular character. On the other hand, it is evident that the king, the executive power of the nation, must have had large numbers of officers of his own in every part of the kingdom. And it is perfectly natural that these different sets of officers should, in many instances, bear the same official names; and, consequently that the king, when speaking of his own officers, as distinguished from those chosen by the people, should call them “our sheriffs, bailiffs,” &c., as he does in Magna Carta.

I apprehend that inattention to these considerations has been the cause of all the confusion of ideas that has arisen on this subject,—a confusion very evident in the following paragraph from Dunham, which may be given as an illustration of that which is exhibited by others on the same points.

“Subordinate to the ealdormen were the gerefas, the sheriffs, or reeves, of whom there were several in every shire, or county. There was one in every borough, as a judge. There was one at every gate, who witnessed purchases outside the walls; and there was one, higher than either,—the high sheriff,—who was probably the reeve of the shire. This last appears to have been appointed by the king. Their functions were to execute the decrees of the king, or ealdormen, to arrest prisoners, to require bail for their appearance at the sessions, to collect fines or penalties levied by the court of the shire, to preserve the public peace, and to preside in a subordinate tribunal of their own.”—Dunham’s Middle Ages, sec. 2, B. 2, ch. 1. 57 Lardner’s Cab. Cyc., p. 41.

The confusion of duties attributed to these officers indicates clearly enough that different officers, bearing the same official names, must have had different duties, and have derived their authority from different sources,—to wit, the king, and the people.

*

Darrein presentment was an inquest to discover who presented the last person to a church; mort de ancestor, whether the last possessor was seized of land in demesne of his own fee; and novel disseisin, whether the claimant had been unjustly disseized of his freehold.

*

He has no power to do it, either with, or without, the king’s command. The prohibition is absolute, containing no such qualification as is here interpolated, viz., “without the king’s command.” If it could be done with the king’s command, the king would be invested with arbitrary power in the matter.

*

The absurdity of this doctrine of Coke is made more apparent by the fact that, at that time, the “justices” and other persons appointed by the king to hold courts were not only dependent upon the king for their offices, and removable at his pleasure, but that the usual custom was, not to appoint them with any view to permanency, but only to give them special commissiors for trying a single cause, or for holding a single term of a court, or for making a single circuit; which, being done, their commissions expired. The king, therefore, could, and undoubtedly did, appoint any individual he pleased, to try any cause he pleased, with a special view to the verdicts he desired to obtain in the particular cases.

This custom of commissioning particular persons to hold jury trials, in criminal cases, (and probably also in civil ones,) was of course a usurpation upon the common law, but had been practised more or less from the time of William the Conqueror. Palgrave says:

“The frequent absence of William from his insular dominions occasioned another mode of administration, which ultimately produced still greater changes in the law. It was the practice of appointing justiciars to represent the king’s person, to hold his court, to decide his pleas, to dispense justice on his behalf, to command the military levies, and to act as conservators of the peace in the king’s name.* . . The justices who were assigned in the name of the sovereign, and whose powers were revocable at his pleasure, derived their authority merely from their grant. . . Some of those judges were usually deputed for the purpose of relieving the king from the burden of his judicial functions. . . The number as well as the variety of names of the justices appearing in the early chirographs of ‘Concords,’ leave reason for doubting whether, anterior to the reign of Henry III., (1216 to 1272,) a court, whose members were changing at almost every session, can be said to have been permanently constituted. It seems more probable that the individuals who composed the tribunal were selected as suited the pleasure of the sovereign, and the convenience of the clerks and barons; and the history of our legal administration will be much simplified, if we consider all those courts which were afterwards denominated the Exchequer, the King’s Bench, the Common Pleas, and the Chancery, as being originally committees, selected by the king when occasion required, out of a large body, for the despatch of peculiar branches of business, and which committees, by degrees, assumed an independent and permanent existence. . . Justices itinerant, who, despatched throughout the land, decided the ‘Pleas of the Crown,’ may be obscurely traced in the reign of the Conqueror; not, perhaps, appointed with much regularity, but despatched upon peculiar occasions and emergencies.”—1 Palgrave’s Rise and Progress, &c., p. 289 to 293.

The following statute, passed in 1354, (139 years after Magna Carta,) shows that even after this usurpation of appointing “justices” of his own, to try criminal cases, had probably become somewhat established in practice, in defiance of Magna Carta, the king was in the habit of granting special commissions to still other persons, (especially to sheriffs,—his sheriffs, no doubt,) to try particular cases:

“Because that the people of the realm have suffered many evils and mischiefs, for that sheriffs of divers counties, by virtue of commissions and general writs granted to them at their own suit, for their singular profit to gain of the people, have made and taken divers inquests to cause to indict the people at their will, and have taken fine and ransom of them to their own use, and have delivered them; whereas such persons indicted were not brought before the king’s justices to have their deliverance, it is accorded and established, for to eschew all such evils and mischiefs, that such commissions and writs before this time made shall be utterly repealed, and that from henceforth no such commissions shall be granted.”—St. 28 Edward III., ch. 9, (1354.)

How silly to suppose that the illegality of these commissions to try criminal cases, could have been avoided by simply granting them to persons under the title of “justices,” instead of granting them to “sheriffs.” The statute was evidently a cheat, or at least designed as such, inasmuch as it virtually asserts the right of the king to appoint his tools, under the name of “justices,” to try criminal cases, while it disavows his right to appoint them under the name of “sheriffs.”

Millar says: “When the king’s bench came to have its usual residence at Westminster, the sovereign was induced to grant special commissions, for trying particular crimes, in such parts of the country as were found most convenient; and this practice was gradually modelled into a regular appointment of certain commissioners, empowered, at stated seasons, to perform circuits over the kingdom, and to hold courts in particular towns, for the trial of all sorts of crimes. These judges of the circuit, however, never obtained an ordinary jurisdiction, but continued, on every occasion, to derive their authority from two special commissions: that of oyer and terminer, by which they were appointed to hear and determine all treasons, felonies and misdemeanors, within certain districts; and that of gaol delivery, by which they were directed to try every prisoner confined in the gaols of the several towns falling under their inspection.”—Millar’s Hist. View of Eng. Gov., vol. 2, ch. 7, p. 282.

The following extract from Gilbert shows to what lengths of usurpation the kings would sometimes go, in their attempts to get the judicial power out of the hands of the people, and entrust it to instruments of their own choosing:

“From the time of the Saxons,” (that is, from the commencement of the reign of William the Conqueror,) “till the reign of Edward the first, (1272 to 1307,) the several county courts and sheriffs courts did decline in their interest and authority. The methods by which they were broken were two-fold. First, by granting commissions to the sheriffs by writ of justicies, whereby the sheriff had a particular jurisdiction granted him to be judge of a particular cause, independent of the suitors of the county court,” (that is, without a jury;) “and these commissions were after the Norman form, by which (according to which) all power of judicature was immediately derived from the king.”—Gilbert on the Court of Chancery, p. 1.

The several authorities now given show that it was the custom of the Norman kings, not only to appoint persons to sit as judges in jury trials, in criminal cases, but that they also commissioned individuals to sit in singular and particular cases, as occasion required; and that they therefore readily could, and naturally would, and therefore undoubtedly did, commission individuals with a special view to their adaptation or capacity to procure such judgments as the kings desired.

The extract from Gilbert suggests also the usurpation of the Norman kings, in their assumption that they, (and not the people, as by the common law,) were the fountains of justice. It was only by virtue of this illegal assumption that they could claim to appoint their tools to hold courts.

All these things show how perfectly lawless and arbitrary the kings were, both before and after Magna Carta, and how necessary to liberty was the principle of Magna Carta and the common law, that no person appointed by the king should hold jury trials in criminal cases.

*

In this extract, Palgrave seems to assume that the king himself had a right to sit as judge, in jury trials, in the county courts, In both civil and criminal cases. I apprehend he had no such power at the common law, but only to sit in the trial of appeals, and in the trial of peers, and of civil suits in which peers were parties, and possibly in the courts of ancient demesne.

*

The opinions and decisions of judges and courts are undeserving of the least reliance, (beyond the intrinsic merit of the arguments offered to sustain them,) and are unworthy even to be quoted as evidence of the law, when those opinions or decisions are favorable to the power of the government, or unfavorable to the liberties of the people. The only reasons that their opinions, when in favor of liberty, are entitled to any confidence, are, first, that all presumptions of law are in favor of liberty; and, second, that the admissions of all men, the innocent and the criminal alike, when made against their own interests, are entitled to be received as true, because it is contrary to human nature for a man to confess anything but truth against himself.

More solemn farces, or more gross impostures, were never practised upon mankind, than are all, or very nearly all, those oracular responses by which courts assume to determine that certain statutes, in restraint of individual liberty, are within the constitutional power of the government, and are therefore valid and binding upon the people.

The reason why these courts are so intensely servile and corrupt, is, that they are not only parts of, but the veriest creatures of, the very governments whose oppressions they are thus seeking to uphold. They receive their offices and salaries from, and are impeachable and removable by, the very governments upon whose acts they affect to sit in judgment. Of course, no one with his eyes open ever places himself in a position so incompatible with the liberty of declaring his honest opinion, unless he do it with the intention of becoming a mere instrument in the hands of the government for the execution of all its oppressions.

As proof of this, look at the judicial history of England for the last five hundred years, and of America from its settlement. In all that time (so far as I know, or presume) no bench of judges, (probably not even any single judge,) dependent upon the legislature that passed the statute, has ever declared a single penal statute invalid, on account of its being in conflict either with the common law, which the judges in England have been sworn to preserve, or with the written constitutions, (recognizing men’s natural rights,) which the American judges were under oath to maintain. Every oppression, every atrocity even, that has ever been enacted in either country, by the legislative power, in the shape of a criminal law, (or, indeed, in almost any other shape,) has been as sure of a sanction from the judiciary that was dependent upon, and impeachable by, the legislature that enacted the law, as if there were a physical necessity that the legislative enactment and the judicial sanction should go together. Practically speaking, the sum of their decisions, all and singular, has been, that there are no limits to the power of the government, and that the people have no rights except what the government pleases to allow to them.

It is extreme folly for a people to allow such dependent, servile, and perjured creatures to sit either in civil or criminal trials; but to allow them to sit in criminal trials, and judge of the people’s liberties, is not merely fatuity,—it is suicide.

*

Coke, speaking of the word bailiffs, as used in the statute of 1 Westminster, ch. 35, (1275,) says:

“Here bailiffs are taken for the judges of the court, as manifestly appeareth hereby.”—2 Inst., 220.

Coke also says, “It is a maxim in law, aliquis non debet esse judex in propria causa, (no one ought to be judge in his own cause;) and therefore a fine levied before the baylifes of Salop was reversed, because one of the baylifes was party to the fine, quia non potest esse judex et pars,” (because one cannot be judge and party.)—1 Inst., 141 a.

In the statute of Gloucester, ch. 11 and 12, (1278,) “the mayor and bailiffs of London (undoubtedly chosen by the people, or at any rate not appointed by the king) are manifestly spoken of as judges, or magistrates, holding jury trials, as follows:

Ch. II. “It is provided, also, that if any man lease his tenement in the city of London, for a term of years, and he to whom the freehold belongeth causeth himself to be impleaded by collusion, and maketh default after default, or cometh into court and giveth it up, for to make the termor (lessee) lose his term, (lease,) and the demandant hath his suit, so that the termor may recover by writ of covenant; the mayor and bailiffs may inquire by a good inquest, (jury,) in the presence of the termor and the demandant, whether the demandant moved his plea upon good right that he had, or by collusion, or fraud, to make the termor lose his term; and if it be found by the inquest (jury, that the demandant moved his plea upon good right that he had, the judgment shall be given forthwith; and if it be found by the inquest (jury) that he impleaded him (self) by fraud, to put the termor from his term, then shall the termor enjoy his term, and the execution of judgment for the demandant shall be suspended until the term be expired.”—6 Edward I., ch. 11, (1278.)

Coke, in his commentary on this chapter, calls this court of “the mayor and bailiffs” of London, “the court of the hustings, the greatest and highest court in London;” and adds, “other cities have the like court, and so called, as York, Lincoln, Winchester, &c. Here the city of London is named; but it appeareth by that which hath been said out of Fleta, that this act extends to such cities and boroughs privileged,—that is, such as have such privilege to hold plea as London hath.”—2 Inst., 322.

The 12th chapter of the same statute is in the following words, which plainly recognize the fact that “the mayor and bailiffs of London” are judicial officers holding courts in London.

“It is provided, also, that if a man, impleaded for a tenement in the same city, (London,) doth vouch a foreigner to warranty, that he shall come into the chancery, and have a writ to summon his warrantor at a certain day before the justices of the bench, and another writ to the mayor and bailiffs of London, that they shall surcease (suspend proceedings) in the matter that is before them by writ, until the plea of the warrantee be determined before the justices of the bench; and when the plea at the bench shall be determined, then shall he that is vouched be commanded to go into the city,” (that is, before “the mayor and bailiffs’ ” court,) “to answer unto the chief plea; and a writ shall be awarded at the suit of the demandant by the justices unto the mayor and bailiffs, that they shall proceed in the plea,” &c.—6 Edward I., ch. 12, (1278.)

Coke, in his commentary on this chapter, also speaks repeatedly of “the mayor and bailiffs” as judges holding courts; and also speaks of this chapter as applicable not only to “the citie of London, specially named for the cause aforesaid, but extended by equity to all other privileged places,” (that is, privileged to have a court of “mayor and bailiffs,”) “where foreign voucher is made, as to Chester, Durham, Salop,” &c.—2 Inst., 325-7.

Bailie.—In Scotch law, a municipal magistrate, corresponding with the English alderman.*—Burrill’s Law Dictionary.

Bailiffe.—Baillif. Fr. A bailiff: a ministerial officer with duties similar to those of a sheriff. . . The judge of a court. A municipal magistrate, &c.—Burrill’s Law Dict.

Bailiff. . . The word bailiff is of Norman origin, and was applied in England, at an early period, (after the example, it is said, of the French,) to the chief magistrates of counties, or shires, such as the alderman, the reeve, or sheriff, and also of inferior jurisdictions, such as hundreds and wapentakes.—Spelman, voc. Balivus; 1 Bl. Com., 344. See Bailli, Ballivus. The Latin ballivus occurs, indeed, in the laws of Edward the Confessor, but Spelman thinks it was introduced by a later hand. Balliva (bailiwick) was the word formed from ballivus, to denote the extent of territory comprised within a bailiff’s jurisdiction; and bailiwick is still retained in writs and other proceedings, as the name of a sheriff’s county.—1 Bl. Com., 344. See Balliva. The office of bailiff was at first strictly, though not exclusively, a judicial one. In France, the word had the sense of what Spelman calls justitia tutelaris. Ballivus occurs frequently in the Regiam Majestatem, in the sense of a judge.—Spelman. In its sense of a deputy, it was formerly applied, in England, to those officers who, by virtue of a deputation, either from the sheriff or the lords of private jurisdictions, exercised within the hundred, or whatever might be the limits of their bailiwick, certain judicial and ministerial functions. With the disuse of private and local jurisdictions, the meaning of the term became commonly restricted to such persons as were deputed by the sheriff to assist him in the merely ministerial portion of his duty; such as the summoning of juries, and the execution of writs.—Brande. . . The word bailiff is also applied in England to the chief magistrates of certain towns and jurisdictions, to the keepers of castles, forests and other places, and to the stewards or agents of lords of manors.—Burrill’s Law Dict.

“Bailiff, (from the Lat. ballivus; Fr. baillif, i. e., Præfectus provinciæ,) signifies an officer appointed for the administration of justice within a certain district. The office, as well as the name, appears to have been derived from the French,” &c.—Brewster’s Encyclopedia.

Millar says, “The French monarchs, about this period, were not content with the power of receiving appeals from the several courts of their barons. An expedient was devised of sending royal bailiffs into different parts of the kingdom, with a commission to take cognizance of all those causes in which the sovereign was interested, and in reality for the purpose of abridging and limiting the subordinate jurisdiction of the neighboring feudal superiors. By an edict of Phillip Augustus, in the year 1190, those bailiffs were appointed in all the principal towns of the kingdom.”—Millar’s Hist. View of the Eng. Gov., vol. ii., ch. 3, p. 120.

“Bailiff-office.—Magistrates who formerly administered justice in the parliaments or courts of France, answering to the English sheriffs, as mentioned by Braeton.”—Bouvier’s Law Dict.

“There be several officers called bailiffs, whose offices and employments seem quite different from each other. . . The chief magistrate, in divers ancient corporations, are called bailiffs, as in Ipswich, Yarmouth, Colchester, &c. There are, likewise, officers of the forest, who are termed bailiffs.”—1 Bacon’s Abridgment, 498-9.

“Bailiff signifies a keeper or superintendent, and is directly derived from the French word bailli, which appears to come from the word balivus, and that from bagalus, a Latin word signifying generally a governor, tutor, or superintendent. . . The French word balli is thus explained by Richelet, (Dictionaire, &c.:) Bailli.—He who in a province has the superintendence of justice, who is the ordinary judge of the nobles, who is their head for the ban and arriere ban,* and who maintains the right and property of others against those who attack them. . . All the various officers who are called by this name, though differing as to the nature of their employments, seem to have some kind of superintendence intrusted to them by their superior.”—Political Dictionary.

“Bailiff, balivus. From the French word bayliff, that is, præfectus provinciæ, and as the name, so the office itself was answerable to that of France, where there were eight parliaments, which were high courts from whence there lay no appeal, and within the precincts of the several parts of that kingdom which belonged to each parliament, there were several provinces to which justice was administered by certain officers called bailiffs; and in England we have several counties in which justice hath been, and still is, in small suits, administered to the inhabitants by the officer whom we now call sheriff, or viscount; (one of which names descends from the Saxons, the other from the Normans.) And, though the sheriff is not called bailiff, yet it was probable that was one of his names also, because the county is often called balliva; as in the return of a writ, where the person is not arrested, the sheriff saith, infra-nominatus, A. B. non est inventus in balliva men, &c.; (the within named A. B. is not found in my bailiwick, &c.) And in the statute of Magna Carta, ch. 28, and 14 Ed. 3, ch. 9, the word baliff seems to comprise as well sheriffs, as bailiffs of hundreds.

“Bailies, in Scotland, are magistrates of burghs, possessed of certain jurisdictions, having the same power within their territory as sheriffs in the county. . .

“As England is divided into counties, so every county is divided into hundreds; within which, in ancient times, the people had justice administered to them by the several officers of every hundred, which were the bailiffs. And it appears by Bracton, (lib. 3, tract. 2, ch. 34,) that bailiffs of hundreds might anciently hold plea of appeal and approvers; but since that time the hundred courts, except certain franchises, are swallowed in the county courts; and now the bailiff’s name and office is grown into contempt, they being generally officers to serve writs, &c., within their liberties; though, in other respects, the name is still in good esteem, for the chief magistrates in divers towns are called bailiffs; and sometimes the persons to whom the king’s castles are committed are termed bailiffs, as the bailiff of Dover Castle, &c.

“Of the ordinary bailiffs there are several sorts, viz., bailiffs of liberties; sheriffs’ bailiffs; bailiffs of lords of manors; bailiffs of husbandry, &c. . .

“Bailiffs of liberties or franchises are to be sworn to take distresses, truly impanel jurors, make returns by indenture between them and sheriffs, &c. . .

“Bailiffs of courts baron summon those courts, and execute the process thereof. . .

“Besides these, there are also bailiffs of the forest. . . ” —Jacob’s Law Dict. Tomlin’s do.

“Bailiwick, balliva,—is not only taken for the county, but signifies generally that liberty which is exempted from the sheriff of the county, over which the lord of the liberty appointeth a bailiff, with such powers within his precinct as an under-sheriff exerciseth under the sheriff of the county; such as the bailiff of Westminster.”—Jacob’s Law Dict. Tomlin’s do.

“A bailiff of a Leet, Court-baron, Manor, Bolivus Letæ, Baronis, Manerii.—He is one that is appointed by the lord, or his steward, within every manor, to do such offices as appertain thereunto, as to summon the court, warn the tenants and resiants; also, to summon the Leet and Homage, levy fines, and make distresses, &c., of which you may read at large in Kitchen’s Court-leet and Court-baron.”—A Law Dictionary, anonymous, (in Suffolk Law Library.)

Bailiff.—In England an officer appointed by the sheriff. Bailiffs are either special, and appointed, for their adroitness, to arrest persons; or bailiffs of hundreds, who collect fines, summon juries, attend the assizes, and execute writs and processes. The sheriff in England is the king’s bailiff. . .

“The office of bailiff formerly was high and honorable in England, and officers under that title on the continent are still invested with important functions.”—Webster.

“Bailli, (Scotland.)—An alderman; a magistrate who is second in rank in a royal burgh.”—Worcester.

“Baili, or Bailiff.—(Sorte d’officier de justice.) A bailiff; a sort of magistrate.”—Boyer’s French Dict.

“By some opinions, a bailiff, in Magna Carta, ch. 28, signifies any judge.”—Cunningham’s Law Dict.

“Bailiff.—In the court of the Greek emperors there was a grand bajulos, first tutor of the emperor’s children. The superintendent of foreign merchants seems also to have been called bajulos; and, as he was appointed by the Venetians, this title (balio) was transferred to the Venetian ambassador. From Greece, the official bajulos (ballivus, bailli, in France; bailiff, in England,) was introduced into the south of Europe, and denoted a superintendent; hence the eight ballivi of the knights of St. John, which constitute its supreme council. In France, the royal bailiffs were commanders of the militia, administrators or stewards of the domains, and judges of their districts. In the course of time, only the first duty remained to the bailiff; hence he was bailli d’épée, and laws were administered in his name by a lawyer, as his deputy, lieutenant de robe. The seigniories, with which high courts were connected, employed bailiffs, who thus constituted, almost everywhere, the lowest order of judges. From the courts of the nobility, the appellation passed to the royal courts; from thence to the parliaments. In the greater bailiwicks of cities of importance, Henry II. established a collegial constitution under the name of presidial courts. . . The name of bailiff was introduced into England with William I. The counties were also called bailiwicks, (ballivæ,) while the subdivisions were called hundreds; but, as the courts of the hundreds have long since ceased, the English bailiffs are only a kind of subordinate officers of justice, like the French huissiers. These correspond very nearly to the officers called constables in the United States. Every sheriff has some of them under him, for whom he is answerable. In some cities the highest municipal officer yet bears this name, as the high bailiff of Westminster. In London, the Lord Mayor is at the same time bailiff, (which title he bore before the present became usual,) and administers, in this quality, the criminal jurisdiction of the city, in the court of old Bailey, where there are, annually, eight sittings of the court, for the city of London and the county of Middlesex. Usually, the recorder of London supplies his place as judge. In some instances the term bailiff, in England, is applied to the chief magistrates of towns, or to the commanders of particular castles, as that of Dover. The term baillie, in Scotland, is applied to a judicial police-officer, having powers very similar to those of justices of peace in the United States.”—Encyclopædia Americana.

*

Alderman was a title anciently given to various judicial officers, as the Alderman of all England, Alderman of the King, Alderman of the County, Alderman of the City or Borough, alderman of the Hundred or Wapentake. These were all judicial officers. See Law Dictionaries.

*

“Ban and arriere ban, a proclamation, whereby all that hold lands of the crown, (except some privileged officers and citizens,) are summoned to meet at a certain place in order to serve the king in his wars, either personally, or by proxy.”—Boyer.

*

Perhaps it may be said (and such, it has already been seen, is the opinion of Coke and others) that the chapter of Magna Carta, that “no bailiff from henceforth shall put any man to his open law, (put him on trial,) nor to an oath (that is, an oath of self-exculpation) upon his (the bailiff’s) own accusation or testimony, without credible witnesses brought in to prove the charge,” is itself a “provision in regard to the king’s justices sitting in criminal trials,” and therefore implies that they are to sit in such trials.

But, although the word bailiff includes all judicial, as well as other, officers, and would therefore in this case apply to the king’s justices, if they were to sit in criminal trials; yet this particular chapter of Magna Carta evidently does not contemplate “bailiffs” while acting in their judicial capacity, (for they were not allowed to sit in criminal trials at all,) but only in the character of witnesses; and that the meaning of the chapter is, that the simple testimony (simplici loquela) of “no bailiff,” (of whatever kind,) unsupported by other and “credible witnesses,” shall be sufficient to put any man on trial, or to his oath of self-exculpation.*

It will be noticed that the words of this chapter are not, “no bailiff of ours,”—that is, of the king,—as in some other chapters of Magna Carta; but simply “no bailiff,” &c. The prohibition, therefore, applies to all “bailiffs,”—to those chosen by the people, as well as those appointed by the king. And the prohibition is obviously founded upon the idea (a very sound one in that age certainly, and probably also in this) that public officers (whether appointed by king or people) have generally, or at least frequently, too many interests and animosities against accused persons, to make it safe to convict any man on their testimony alone.

The idea of Coke and others, that the object of this chapter was simply to forbid magistrates to put a man on trial, when there were no witnesses against him, but only the simple accusation or testimony of the magistrates themselves, before whom he was to be tried, is preposterous; for that would be equivalent to supposing that magistrates acted in the triple character of judge, jury and witnesses, in the same trial; and that, therefore, in such cases, they needed to be prohibited from condemning a man on their own accusation or testimony alone. But such a provision would have been unnecessary and senseless, for two reasons; first, because the bailiffs or magistrates had no power to “hold pleas of the crown,” still less to try or condemn a man; that power resting wholly with the juries; second, because if bailiffs or magistrates could try and condemn a man, without a jury, the prohibition upon their doing so upon their own accusation or testimony alone, would give no additional protection to the accused, so long as these same bailiffs or magistrates were allowed to decide what weight should be given, both to their own testimony and that of other witnesses; for, if they wished to convict, they would of course decide that any testimony, however frivolous or irrelevant, in addition to their own, was sufficient. Certainly a magistrate could always procure witnesses enough to testify to something or other, which he himself could decide to be corroborative of his own testimony. And thus the prohibition would be defeated in fact, though observed in form.

*

At the common law, parties, in both civil and criminal cases, were allowed to swear in their own behalf; and it will be so again, if the true trial by jury should be reestablished.

*

In this chapter I have called the justices “presiding officers,” solely for the want of a better term. They are not “presiding officers,” in the sense of having any authority over the jury; but are only assistants to, and teachers and servants of, the jury. The foreman of the jury is properly the “presiding officer,” so far as there is such an officer at all. The sheriff has no authority except over other persons than the jury.

*

2 Sullivan Lectures, 234-5. 3 Blackstone, 274-5, 376. Sullivan says that both plaintiffs and defendants were liable to amercement. Blackstone speaks of plaintiffs being liable, without saying whether defendants were so or not. What the rule really was I do not know. There would seem to be some reason in allowing defendants to defend themselves, at their own charges, without exposing themselves to amercement in case of failure.

*

When any other witnesses than freeholders were required in a civil suit, I am not aware of the manner in which their attendance was procured; but it was doubtless done at the expense either of the state or of the witnesses themselves. And it was doubtless the same in criminal cases.

†

“All claims were established in the first stage by the oath of the plaintiff, except when otherwise specially directed by the law. The oath, by which any claim was supported, was called the fore-oath, or ‘Præjuramentum,’ and it was the foundation of his suit. One of the cases which did not require this initiatory confirmation, was when cattle could be tracked into another man’s land, and then the foot-mark stood for the fore-oath.”—2 Palgrave’s Rise and Progress, &c., 114.

*

Among the necessary expenses of suits, should be reckoned reasonable compensation to counsel, for they are nearly or quite as important to the administration of justice, as are judges, jurors, or witnesses; and the universal practice of employing them, both on the part of governments and of private persons, shows that their importance is generally understood. As a mere matter of economy, too, it would be wise for the government to pay them, rather than they should not be employed; because they collect and arrange the testimony and the law beforehand, so as to be able to present the whole case to the court and jury intelligibly, and in a short space of time. Whereas, if they were not employed, the court and jury would be under the necessity either of spending much more time than now in the investigation of causes, or of despatching them in haste, and with little regard to justice. They would be very likely to do the latter, thus defeating the whole object of the people in establishing courts.

To prevent the abuse of this right, it should perhaps be left discretionary with the jury in each case to determine whether the counsel should receive any pay—and, if any, how much—from the government.

*

This presumption, founded upon age alone, is as absurd in civil matters as in criminal. What can be more entirely ludicrous than the idea that all men (not manifestly imbecile) become mentally competent to make all contracts whatsoever on the day they become twenty-one years of age?—and that, previous to that day, no man becomes competent to make any contract whatever, except for the present supply of the most obvious wants of nature? In reason, a man’s legal competency to make binding contracts, in any and every case whatever, depends wholly upon his mental capacity to make reasonable contracts in each particular case. It of course requires more capacity to make a reasonable contract in some cases than in others. It requires, for example, more capacity to make a reasonable contract in the purchase of a large estate, than in the purchase of a pair of shoes. But the mental capacity to make a reasonable contract, in any particular case, is, in reason, the only legal criterion of the legal competency to make a binding contract in that case. The age, whether more or less than twenty-one years, is of no legal consequence whatever, except that it is entitled to some consideration as evidence of capacity.

It may be mentioned, in this connection, that the rules that prevail, that every man is entitled to freedom from parental authority at twenty-one years of age, and no one before that age, are of the same class of absurdities with those that have been mentioned. The only ground on which a parent is ever entitled to exercise authority over his child, is that the child is incapable of taking reasonable care of himself. The child would be entitled to his freedom from his birth, if he were at that time capable of taking reasonable care of himself. Some become capable of taking care of themselves at an earlier age than others. And whenever any one becomes capable of taking reasonable care of himself, and not until then, he is entitled to his freedom, be his age more or less.

These principles would prevail under the true trial by jury, the jury being the judges of the capacity of every individual whose capacity should be called in question.

*

In contrast to the doctrines of the text, it may be proper to present more distinctly the doctrines that are maintained by judges, and that prevail in courts of justice.

Of course, no judge, either of the present day, or perhaps within the last five hundred years, has admitted the right of a jury to judge of the justice of a law, or to hold any law invalid for its injustice. Every judge asserts the power of the government to punish for acts that are intrinsically innocent, and which therefore involve or evince no criminal intent. To accommodate the administration of law to this principle, all judges, so far as I am aware, hold it to be unnecessary that an indictment should charge, or that a jury should find, that an act was done with a criminal intent, except in those cases where the act is malum in se,—criminal in itself. In all other cases, so far as I am aware, they hold it sufficient that the indictment charge, and consequently that the jury find, simply that the act was done “contrary to the form of the statute in such case made and provided;” in other words, contrary to the orders of the government.

All these doctrines prevail universally among judges, and are, I think, uniformly practised upon in courts of justice; and they plainly involve the most absolute despotism on the part of the government.

But there is still another doctrine that extensively, and perhaps most generally, prevails in practice, although judges are not agreed in regard to its soundness. It is this: that it is not even necessary that the jury should see or know, for themselves, what the law is that is charged to have been violated; nor to see or know, for themselves, that the act charged was in violation of any law whatever;—but that it is sufficient that they be simply told by the judge that any act whatever, charged in an indictment, is in violation of law, and that they are then bound blindly to receive the declaration as true, and convict a man accordingly, if they find that he has done the act charged.

This doctrine is adopted by many among the most eminent judges, and the reasons for it are thus given by Lord Mansfield:

“They (the jury) do not know, and are not presumed to know, the law. They are not sworn to decide the law;* they are not required to do it. . . The jury ought not to assume the jurisdiction of law. They do not know, and are not presumed to know, anything of the matter. They do not understand the language in which it is conceived, or the meaning of the terms. They have no rule to go by but their passions and wishes.”—3 Term Rep., 428, note.

What is this but saying that the people, who are supposed to be represented in juries, and who institute and support the government, (of course for the protection of their own rights and liberties, as they understand them, for plainly no other motive can be attributed to them,) are really the slaves of a despotic power, whose arbitrary commands even they are not supposed competent to understand, but for the transgression of which they are nevertheless to be punished as criminals?

This is plainly the sum of the doctrine, because the jury are the peers (equals) of the accused, and are therefore supposed to know the law as well as he does, and as well as it is known by the people at large. If they (the jury) are not presumed to know the law, neither the accused nor the people at large can be presumed to know it. Hence, it follows that one principle of the true trial by jury is, that no accused person shall be held responsible for any other or greater knowledge of the law than is common to his political equals, who will generally be men of nearly similar condition in life. But the doctrine of Mansfield is, that the body of the people, from whom jurors are taken, are responsible to a law, which it is agreed they cannot understand. What is this but despotism?—and not merely despotism, but insult and oppression of the intensest kind?

This doctrine of Mansfield is the doctrine of all who deny the right of juries to judge of the law, although all may not choose to express it in so blunt and unambiguous terms. But the doctrine evidently admits of no other interpretation or defence.

*

This declaration of Mansfield, that juries in England “are not sworn to decide the law” in criminal cases, is a plain falsehood. They are sworn to try the whole case at issue between the king and the prisoner, and that includes the law as well as the fact. See juror’s oath, page 86.

*

Mackintosh’s Hist. of Eng., ch. 3. 45 Lardner’s Cab. Cyc., 354.

†

“Forty shilling freeholders” were those “people dwelling and resident in the same counties, whereof every one of them shall have free land or tenement to the value of forty shillings by the year at the least above all charges.” By statuto 8 Henry 6, ch. 7, (1429,) these freeholders only were allowed to vote for members of Parliament from the counties.

*

He probably speaks in its favor only to blind the eyes of the people to the frauds he has attempted upon its true meaning.

*

It will be noticed that Coke calls these confirmations of the charter “acts of parliament,” instead of acts of the king alone. This needs explanation.

It was one of Coke’s ridiculous pretences, that laws anciently enacted by the king, at the request, or with the consent, or by the advice, of his parliament, was “an act of parliament,” instead of the act of the king. And in the extracts cited, he carries this idea so far as to pretend that the various confirmations of the Great Charter were “acts of parliament,” instead of the acts of the kings. He might as well have pretended that the original grant of the Charter was an “act of parliament;” because it was not only granted at the request, and with the consent, and by the advice, but on the compulsion even, of those who commonly constituted his parliaments. Yet this did not make the grant of the charter “an act of parliament.” It was simply an act of the king.

The object of Coke, in this pretence, was to furnish some color for the palpable falsehood that the legislative authority, which parliament was trying to assume in his own day, and which it finally succeeded in obtaining, had a precedent in the ancient constitution of the kingdom.

There would be as much reason in saying that, because the ancient kings were in the habit of passing laws in special answer to the petitions of their subjects, therefore those petitioners were a part of the legislative power of the kingdom.

One great objection to this argument of Coke, for the legislative authority of the ancient parliaments, is that a very large—probably much the larger—number of legislative acts were done without the advice, consent, request, or even presence, of a parliament. Not only were many formal statutes passed without any mention of the consent or advice of parliament, but a simple order of the king in council, or a simple proclamation, writ, or letter under seal, issued by his command, had the same force as what Coke calls “an act of parliament.” And this practice continued, to a considerable extent at least, down to Coke’s own time.

The kings were always in the habit of consulting their parliaments, more or less, in regard to matters of legislation,—not because their consent was constitutionally necessary, but in order to make influence in favor of their laws, and thus induce the people to observe them, and the juries to enforce them.

The general duties of the ancient parliaments were not legislative, but judicial, as will be shown more fully hereafter. The people were not represented in the parliaments at the time of Magna Carta, but only the archbishops, bishops, earls, barons, and knights; so that little or nothing would have been gained for liberty by Coke’s idea that parliament had a legislative power. He would only have substituted an aristocracy for a king. Even after the Commons were represented in parliament, they for some centuries appeared only as petitioners, except in the matter of taxation, when their consent was asked. And almost the only source of their influence on legislation was this: that they would sometimes refuse their consent to the taxation, unless the king would pass such laws as they petitioned for; or, as would seem to have been much more frequently the case, unless he would abolish such laws and practices as they remonstrated against.

The influence or power of parliament, and especially of the Commons, in the general legislation of the country, was a thing of slow growth, having its origin in a device of the king to get money contrary to law, (as will be seen in the next volume,) and not at all a part of the constitution of the kingdom, nor having its foundation in the consent of the people. The power, as at present exercised, was not fully established until 1688, (near five hundred years after Magna Carta,) when the House of Commons (falsely so called) had acquired such influence as the representative, not of the people, but of the wealth, of the nation, that they compelled the king to discard the oath fixed by the constitution of the kingdom; (which oath has been already given in a former chapter,* and was, in substance, to preserve and execute the Common Law, the Law of the Land,—or, in the words of the oath, “the just laws and customs which the common people had chosen;”) and to swear that he would “govern the people of this kingdom of England, and the dominions thereto belonging, according to the statutes in parliament agreed on, and the laws and customs of the same.”*

The passage and enforcement of this statute, and the assumption of this oath by the king, were plain violations of the English constitution, inasmuch as they abolished, so far as such an oath could abolish, the legislative power of the king, and also “those just laws and customs which the common people (through their juries) had chosen,” and substituted the will of parliament in their stead.

Coke was a great advocate for the legislative power of parliament, as a means of restraining the power of the king. As he denied all power to juries to decide upon the obligation of laws, and as he held that the legislative power was “so transcendent and absolute as (that) it cannot be confined, either for causes or persons, within any bounds,”† he was perhaps honest in holding that it was safer to trust this terrific power in the hands of parliament, than in the hands of the king. His error consisted in holding that either the king or parliament had any such power, or that they had any power at all to pass laws that should be binding upon a jury.

These declarations of Coke, that the charter was confirmed by thirty-two “acts of parliament,” have a mischievous bearing in another respect. They tend to weaken the authority of the charter, by conveying the impression that the charter itself might be abolished by “act of parliament.” Coke himself admits that it could not be revoked or rescinded by the king; for he says, “All pretence of prerogative against Magna Carta is taken away.” (2 Inst., 36.)

He knew perfectly well, and the whole English nation knew, that the king could not lawfully infringe Magna Carta. Magna Carta, therefore, made it impossible that absolute power could ever be practically established in England, in the hands of the king. Hence, as Coke was an advocate for absolute power,—that is, for a legislative power “so transcendent and absolute as (that) it cannot be confined, either for causes or persons, within any bounds,”—there was no alternative for him but to vest this absolute power in parliament. Had he not vested it in parliament, he would have been obliged to abjure it altogether, and to confess that the people, through their juries, had the right to judge of the obligation of all legislation whatsoever; in other words, that they had the right to confine the government within the limits of “those just laws and customs which the common people (acting as jurors) had chosen.” True to his instincts, as a judge, and as a tyrant, he assumed that this absolute power was vested in the hands of parliament.

But the truth was that, as by the English constitution parliament had no authority at all for general legislation, it could no more confirm, than it could abolish, Magna Carta.

These thirty-two confirmations of Magna Carta, which Coke speaks of as “acts of parliament,” were merely acts of the king. The parliaments, indeed, by refusing to grant him money, except on that condition, and otherwise, had contributed to oblige him to make the confirmations; just as they had helped to oblige him by arms to grant the charter in the first place. But the confirmations themselves were nevertheless constitutionally, as well as formally, the acts of the king alone.

*

See page 101.

*

St. 1 William and Mary, ch. 6, (1688.)

†

4 Inst., 36.

*

Under the head of “John.”

*

4 Blackstone, 349-50.

†

3 Blackstone, 379.

‡

Hume, ch. 2.

§

Page 203, 5th edition, 1721.

*

Such as restraints upon banking, upon the rates of interest, upon traffic with foreigners, &c., &c.

*

Trial by the country, and no taxation without consent, mutually sustain each other, and can be sustained only by each other, for these reasons: 1. Juries would refuse to enforce a tax against a man who had never agreed to pay it. They would also protect men in forcibly resisting the collection of taxes to which they had never consented. Otherwise the jurors would authorize the government to tax themselves without their consent,—a thing which no jury would be likely to do. In these two ways, then, trial by the country would sustain the principle of no taxation without consent. 2. On the other hand, the principle of no taxation without consent would sustain the trial by the country, because men in general would not consent to be taxed for the support of a government under which trial by the country was not secured. Thus these two principles mutually sustain each other.

But, if either of these principles were broken down, the other would fall with it, and for these reasons: 1. If trial by the country were broken down, the principle of no taxation without consent would fall with it, because the government would then be able to tax the people without their consent, inasmuch as the legal tribunals would be mere tools of the government, and would enforce such taxation, and punish men for resisting such taxation, as the government ordered. 2. On the other hand, if the principle of no taxation without consent were broken down, trial by the country would fall with it, because the government, if it could tax people without their consent, would, of course, take enough of their money to enable it to employ all the force necessary for sustaining its own tribunals, (in the place of Juries,) and carrying their decrees into execution.

T.12 The Law of Intellectual Property; or An Essay on the Right of Authors and Inventors to a Perpetual Property in their Ideas (1855).↩

Title

[12.] The Law of Intellectual Property; or An Essay on the Right of Authors and Inventors to a Perpetual Property in their Ideas, Vol. 1 (Boston: Bela Marsh, 1855).

- also online </titles/2243>.

Text

CONTENTS OF VOLUME I.

- CHAPTER I. THE LAW OF NATURE, RELATIVE TO INTELLECTUAL PROPERTY, . . . . page 9

- Section 1. The Right Property in Ideas to be proved by Analogy, . . . . . . 9

- Section 2. What is Wealth? . . . . . 10

- Section 3. What is Property? . . . . . 15

- Section 4. What is the Right of Property? . . 15

- Section 5. What Things are Subjects of Property? 17

- Section 6. How is the Right of Property Acquired? 21

- Section 7. What is the Foundation of the Right of Property? . . . . . . 28

- Section 8. How is the Right of Property Transferred? 29

- Section 9. Conclusions from the preceding Principles, 30

- CHAPTER II. OBJECTIONS ANSWERED, . . . . 31

- Section 1. Objection First, . . . . . 31

- Section 2. Objection Second, . . . . . 41

- Section 3. Objection Third, . . . . . 57

- Section 4. Objection Fourth, . . . . . 59

- Section 5. Objection Fifth, . . . . . 61

- Section 6. Objection Sixth, . . . . . 64

- Section 7. Objection Seventh, . . . . 68

- Section 8. Objection Eighth, . . . . . 69 [iv]

- Section 9. Objection Ninth, . . . . . 70

- Section 10. Objection Tenth, . . . . . 73

- Section 11. Objection Eleventh, . . . . 75

- Section 12. Objection Twelfth, . . . . . 91

- Section 13. Objection Thirteenth, . . . . 102

- Section 14. Objection Fourteenth, . . . . 105

- Section 15. Objection Fifteenth, . . . . 108

- CHAPTER III. PERPETUITY AND DESCENT OF INTELLECTUAL PROPERTY, . . . . . 109

- Section 1. Perpetuity of Intellectual Property, . 109

- Section 2. Descent of Intellectual Property, . . 109

- CHAPTER IV. THE SALE OF IDEAS, . . . . . 113

- CHAPTER V. THE POLICY OF PERPETUITY IN INTELLECTUAL PROPERTY, . . . . . 135

[v]

NOTE.

In the second volume of this work, it is the intention of the author to discuss the following topics, viz.:—

1. The Common Law of England, relative to Intellectual Property—reviewing the English decisions.

2. The Constitutional Law of the United States—reviewing the acts of Congress and the judicial decisions.

3. International Law.

4. Various other topics of minor importance connected with the subject.

He expects to prove, among other things, that it is the present constitutional duty of courts, both in England and America—any acts of parliament or of congress to the contrary notwithstanding—to maintain the principle of perpetuity in intellectual property, and also to give to such property the protection of the criminal law

[vi] [8]

PART I: THE LAW OF INTELLECTUAL PROPERTY.

[9]

CHAPTER I.: THE LAW OF NATURE IN REGARD TO INTELLECTUAL PROPERTY.

SECTION I.: The Right of Property in Ideas to be proved by Analogy.

In order to understand the law of nature in regard to intellectual property, it is necessary to understand the principles of that law in regard to property in general. We shall then see that the right of property in ideas, is at least as strong as—and in many cases identical with—the right of property in material things.

To understand the law of nature, relative to property in general, it is necessary, in the first place, that we understand the distinction between wealth and property; and, in the second place, that we understand how and when wealth becomes property.

We shall therefore consider:

- 1. What is Wealth?

- 2. What is Property?

- 3. What is the Right of Property?

- 4. What Things are Subjects of Property? [10]

- 5. How is the Right of Property Acquired?

- 6. What is the Foundation of the Right of Property?

- 7. How is the Right of Property Transferred?

- 8. Conclusions from the Preceding Principles.

SECTION II.: What is Wealth?

Wealth is any thing, that is, or can be made, valuable to man, or available for his use.

The term wealth properly includes every conceivable object, idea, and sensation, that can either contribute to, or constitute, the physical, intellectual, moral, or emotional well-being of man.

Light, air, water, earth, vegetation, minerals, animals, every material thing, living or dead, animate or inanimate, that can aid, in any way, the comfort, happiness, or welfare of man, are wealth.

Things intangible and imperceptible by our physical organs, and perceptible only by the intellect, or felt only by the affections, are wealth. Thus liberty is wealth; opportunity is wealth; motion or labor is wealth; rest is wealth; reputation is wealth; love is wealth; sympathy is wealth; hope is wealth; knowledge is wealth; truth is wealth; for the simple reason that they all contribute to, or constitute in part, a man’s well-being.

All a man’s faculties, physical, intellectual, moral, and affectional, whereby he either procures, or enjoys, happiness, are wealth.

Happiness itself is wealth. It is the highest wealth. It is the ultimate wealth, which it is the object of all other wealth to procure.

Inasmuch as any given thing is wealth, because, and solely because, it may contribute to, or constitute, the happiness or [11] well-being of man, it follows that every thing, that can contribute to, or constitute, his happiness or well-being, is necessarily wealth.

The question whether a given thing be, or be not wealth, does not therefore depend at all upon its being tangible or perceptible by our physical organs; because its capacity to contribute to, or constitute, the happiness of man, does not depend at all upon its being thus tangible or perceptible. Things intangible and imperceptible by our physical organs, as liberty, reputation, love, and truth, for example, have as clearly a capacity to contribute to, and constitute, the happiness and well-being of man, as have any of those things that are thus tangible and perceptible.

Another reason why tangibility and perceptibility by our physical organs, are no criteria of wealth, is, that it really is not our physical organs, but the mind, and only the mind, that takes cognizance even of material objects. We are in the habit of saying that the eye sees any material object. But, in reality, it is only the mind that sees it. The mind sees it through the eye. It uses the eye merely as an instrumentality for seeing it. An eye, without a mind, could see nothing. So also it is with the hand, as it is with the eye. We are in the habit of saying that the hand touches any material thing. But, in reality, it is only the mind, that perceives the contact, or takes cognizance of the touch. The hand, without the mind, could feel nothing, and take cognizance of nothing, it should come in contact with. The mind simply uses the hand, as an instrument for touching; just as it uses the eye, as an instrument for seeing. It is, therefore, only the mind, that takes cognizance of any thing material. And every thing, of which the mind does take cognizance, is equally wealth, whether it be material or immaterial; whether it be tangible or perceptible, through the instrumentality of our physical organs, or not. It would be absurd to say that one thing was wealth, because the mind was obliged to use such material instruments as the hand, or the eye, to perceive it; and that another thing, as an idea, for example, was not wealth, [12] simply because the mind could perceive it without using any material instruments.

It is plain, therefore, that an idea, which the mind perceives, without the instrumentality of our physical organs, is as clearly wealth, as is a house, or a horse, or any material thing, which the mind sees by the aid of the eye, or touches through the instrumentality of the hand. The capacity of the thing, whether it be a horse, a house, or an idea, to contribute to, or constitute, the well-being of man, is the only criterion by which to determine whether or not it be wealth; and not its tangibility or perceptibility, through the agency of our physical organs.

An idea, then, is wealth. It is equally wealth, whether it be regarded, as some ideas may be, simply as, in itself, an object of enjoyment, reflection, meditation, and thus a direct source of happiness; or whether it be regarded, as other ideas may be, simply as a means to be used for acquiring other wealth, intellectual, moral, affectional, or material.

An idea is self-evidently wealth, when it imparts happiness directly. It is wealth, because it imparts happiness. It is also equally wealth, when it is used as an instrument or means of creating or acquiring other wealth. It is then as clearly wealth, as is any other instrumentality for acquiring wealth.

The idea, after which a machine is fashioned, is as clearly wealth, as is the material of which the machine is composed. The idea is the life of the machine, without which, the machine would be inoperative, powerless, and incapable of producing wealth.

The plan after which a house is built, is as much wealth, as is the material of which the house is constructed. Without the plan, the material would have failed to furnish shelter or comfort to the owner. It would have failed to be a house.

The idea, or design, after which a telescope is constructed, is as much wealth, as are the materials of which the telescope is composed. Without the idea, the materials would have failed to aid men in their examination of the heavens.

[13]

The design, after which a picture is drawn, is as clearly wealth, as is the canvas on which it is drawn, or the paint with which it is drawn. Without the design, the canvas and the paint could have done nothing towards producing the picture, which is now so valuable.

The same principle governs in every department and variety of industry. An idea is every where and always the guide of labor, in the production and acquisition of wealth; and the idea, that guides labor, in the production or acquisition of wealth, is itself as obviously wealth, as is the labor, or as is any other instrumentality, agency, object, or thing whatever, whether material or immaterial, that aids in the production or acquisition of wealth.

To illustrate—The compass and rudder, that are employed in guiding a ship, and without which the ship would be useless, are as much wealth, as is the ship itself, or as is the freight which the ship is to carry. But it is plain that the mind, that observes the compass, and the thought, that impels and guides the hand that moves the rudder, are also as much wealth, as are the compass and rudder themselves.

So the thought, that guides the hand in labor, is ever as clearly wealth, as is the hand itself; or as is the material, on which the hand is made to labor; or as is the commodity, which the hand is made to produce. But for the thought, that guides the hand, the commodity would not be produced; the labor of the hand would be fruitless, and therefore valueless.

Every thing, therefore—whether intellectual, moral, or material, however gross, or however subtile; whether tangible or intangible, perceptible or imperceptible, by our physical organs—of which the human mind can take cognizance, and which, either as a means, occasion, or end, can either contribute to, or of itself constitute, the well-being of man, is wealth.

Mankind, in their dealings with each other, in their purchases, and in their sales, both tacitly and expressly acknowledge and act upon the principle, that a thought is wealth; that it is a wealth whose value is to be estimated and paid for, like other [14] wealth. Thus a machine is valuable in the market, according to the idea, after which it is fashioned. The plan, after which a house is built, enters into the market value of the house. The design, after which a picture is drawn, and the skill with which it is drawn, enter into, and mainly constitute, the mercantile value of the picture itself. The canvas and the paint, as simple materials, are worth—in comparison with the thought and skill embodied in the picture—only as one to an hundred, a thousand, or ten thousand.

Mankind, ignorant and enlightened, savage and civilized, with nearly unbroken universality, regard ideas, thoughts, and emotions, as the most valuable wealth they can either possess for themselves, or give to their children. They value them, both as direct sources of happiness, and as aids to the acquisition of other wealth. They are, therefore, all assiduously engaged in acquiring ideas, for their own enjoyment and use, and imparting them to their children, for their enjoyment and use. They voluntarily exchange their own material wealth, for the intellectual wealth of other men. They pay their money for other men’s thoughts, written on paper, or uttered by the voice. So self-evident, indeed, is it that ideas are wealth, in the universal judgment of mankind, that it would have been entirely unnecessary to assert and illustrate the fact thus elaborately, in this connection, were it not that the principle lies at the foundation of all inquiries as to what is property; and, at the same time, it is one that is so universally, naturally, and unconsciously, received and acted upon, in practical life, that it is never even brought into dispute; men do not stop to theorize upon it; and therefore do not form any such definite, exact, or clear ideas about it, as are necessary to furnish, or constitute, the basis, or starting point, of the subsequent inquiries, to which this essay is devoted. For these reasons, the principle has now been stated thus particularly.

[15]

SECTION III.: What is Property?

Property is simply wealth, that is possessed—that has an owner; in contradistinction to wealth, that has no owner, but lies exposed, unpossessed, and ready to be converted into property, by whomsoever chooses to make it his own.

All property is wealth; but all wealth is not property. A very small portion of the wealth in the world has any owner. It is mostly unpossessed. Of the wealth in the ocean, for example, only an infinitesimal part ever becomes property. Man occasionally takes possession of a fish, or a shell, leaving all the rest of the ocean’s wealth without an owner.

A somewhat larger proportion, but still a small proportion, of the wealth that lies in and upon the land, is property. Of the forests, the mines, the fruits, the animals, the atmosphere, a small part only has ever became property.

Of intellectual wealth, too, doubtless a very minute portion of all that is susceptible of acquisition, and possession, has ever been acquired—that is, has ever become property. Of all the truths, and of all the knowledge, which will doubtless sometime be possessed, how little is now possessed.

SECTION IV.: What is the Right of Property?

The right of property is simply the right of dominion. It is the right, which one man has, as against all other men, to the exclusive control, dominion, use, and enjoyment of any particular thing.

[16]

The principle of property is, that a thing belongs to one man, and not to another—mine, and thine, and his, are the terms that convey the idea of property.

The word property is derived from proprius, signifying one’s own. The principle of property, then, is the principle of one’s personal ownership, control, and dominion, of and over any thing. The right of property is one’s right of ownership, enjoyment, control, and dominion, of and over any object, idea, or sensation.

The proprietor of any thing has the right to an exclusive ownership, control, and dominion, of and over the thing of which he is the proprietor. The thing belongs to him, and not to another man. He has a right, as against all other men, to control it according to his own will and pleasure; and is not accountable to others for the manner in which he may use it. Others have no right to take it from him, against his will; nor to exercise any authority, control, or dominion over it, without his consent; nor to impede, nor obstruct him in the exercise of such dominion over it, as he chooses to exercise. It is not theirs, but his. They must leave it entirely subject to his will. His will, and not their wills, must control it. The only limitation, which any or all others have a right to impose upon his use and disposal of it, is, that he shall not so use it as to invade, infringe, or impair the equal supremacy, dominion, and control of others, over what is their own.

The legal idea of property, then, is, that one thing belongs to one man, and another thing to another man; and that neither of these persons have a right to any voice in the control or disposal of what belongs to the other; that each is the sole lord of what is his own; that he is its sovereign; and has a right to use, enjoy, and dispose of it, at his pleasure, without giving any account, or being under any responsibility, to others, for his manner of using, enjoying, or disposing of it.

This right of property, which each man has, to what is his own, is a right, not merely against any one single individual, but [17] it is a right against all other individuals, singly and collectively. The right is equally valid, and equally strong, against the will of all other men combined, as against the will of every or any other man separately. It is a right against the whole world. The thing is his, and is not the world’s. And the world must leave it alone, or it does him a wrong; commits a trespass, or a robbery, against him. If the whole world, or any one of the world, desire anything that is an individual’s, they must obtain his free consent to part with it, by such inducements as they can offer him. If they can offer him no inducements, sufficient to procure his free consent to part with it, they must leave him in the quiet enjoyment of what is his own.

SECTION V.: What Things are Subjects of Property?

Every conceivable thing, whether intellectual, moral, or material, of which the mind can take cognizance, and which can be possessed, held, used, controlled, and enjoyed, by one person, and not, at the same instant of time, by another person, is rightfully a subject of property.

All the wealth, that has before been described—that is, all the things, intellectual, moral, emotional, or material, that can contribute to, or constitute, the happiness or well-being of man; and that can be possessed by one man, and not at the same time by another, is rightfully a subject of property—that is, of individual ownership, control, dominion, use, and enjoyment.

The air, that a man inhales, is his, while it is inhaled. When he has exhaled it, it is no longer his. The air that he may inclose in a bottle, or in his dwelling, is his, while it is so inclosed. When he has discharged it, it is no longer his. The sun-light, that falls upon a man, or upon his land, or that comes [18] into his dwelling, is his; and no other man has a right to forbid his enjoyment of it, or compel him to pay for it.

A man’s body is his own. It is the property of his mind. (It is the mind that owns every thing, that is property. Bodies own nothing; but are themselves subjects of property—that is, of dominion. Each body is the property—that is, is under the dominion—of the mind that inhabits it.) And no man has the right, as being the proprietor, to take another man’s body out of the control of his mind. In other words, no man can own another man’s body.

All a man’s enjoyments, all his feelings, all his happiness, are his property. They are his, and not another man’s. They belong to him, and not to others. And no other man has the right to forbid him to enjoy them, or to compel him to pay for them. Other men may have enjoyments, feelings, happiness, similar, in their nature, to his. But they cannot own his feelings, his enjoyments, or his happiness. They cannot, therefore, rightfully require him to pay them for them, as if they were theirs, and not his own.

A man’s ideas are his property. They are his for enjoyment, and his for use. Other men do not own his ideas. He has a right, as against all other men, to absolute dominion over his ideas. He has a right to act his own judgment, and his own pleasure, as to giving them, or selling them to other men. Other men cannot claim them of him, as if they were their property, and not his; any more than they can claim any other things whatever, that are his. If they desire them, and he does not choose to give them to them gratuitously, they must buy them of him, as they would buy any other articles of property whatever. They must pay him his price for them, or not have them. They have no more right to force him to give his ideas to them, than they have to force him to give them his purse.

Mankind universally act upon this principle. No sane man, who acknowledged the right of individual property in any thing, ever claimed that, as a natural or general principle, he was the [19] rightful owner of the thoughts produced, and exclusively possessed, by other men’s minds; or demanded them on the ground of their being his property; or denied that they were the property of their possessors.

If the ideas, which a man has produced, were not rightfully his own, but belonged equally to other men, they would have the right imperatively to require him to give his ideas to them, without compensation; and it would be just and right for them to punish him as a criminal, if he refused.

Among civilized men, ideas are common articles of traffic. The more highly cultivated a people become, the more are thoughts bought and sold. Writers, orators, teachers, of all kinds, are continually selling their thoughts for money. They sell their thoughts, as other men sell their material productions, for what they will bring in the market. The price is regulated, not solely by the intrinsic value of the ideas themselves, but also, like the prices of all other commodities, by the supply and demand. On these principles, the author sells his ideas in his volumes; the poet sells his in his verses; the editor sells his in his daily or weekly sheets; the statesman sells his in his messages, his diplomatic papers, his speeches, reports, and votes; the jurist sells his in his judgments, and judicial opinions; the lawyer sells his in his counsel, and his arguments; the physician sells his in his advice, skill, and prescriptions; the preacher sells his in his prayers and sermons; the teacher sells his in his instructions; the lecturer sells his in his lectures; the architect sells his in his plans; the artist sells his in the figure he has engraven on stone, and in the picture he has painted on canvas. In practical life, these ideas are all as much articles of merchandize, as are houses, and lands, and bread, and meat, and clothing, and fuel. Men earn their livings, and support their families, by producing and selling ideas. And no man, who has any rational ideas of his own, doubts that in so doing they earn their livelihood in as legitimate a manner as any other members of society earn theirs. He who produces food for men’s minds, guides for their hands in [20] labor, and rules for their conduct in life, is as meritorious a producer, as he who produces food or shelter for their bodies.

Again. We habitually talk of the ideas of particular authors, editors, poets, statesmen, judges, lawyers, physicians, preachers, teachers, artists, &c., as being worth less than the price that is asked or paid for them, in particular instances; and of other men’s ideas, as being worth more than the price that is paid for them, in particular instances; just as we talk of other and material commodities, as being worth less or more than the prices at which they are sold. We thus recognize ideas as being legitimate articles of traffic, and as having a regular market value, like other commodities.

Because all men give more or less of their thoughts gratuitously to their fellow men, in conversation, or otherwise, it does not follow at all that their thoughts are not their property, which they have a natural right to set their own price upon, and to withhold from other men, unless the price be paid. Their thoughts are thus given gratuitously, or in exchange for other men’s thoughts, (as in conversation,) either for the reason that they would bring nothing more in the market, or would bring too little to compensate for the time and labor of putting them in a marketable form, and selling them. Their market value is too small to make it profitable to sell them. Such thoughts men give away gratuitously, or in exchange for such thoughts as other men voluntarily give in return—just as men give to each other material commodities of small value, as nuts, and apples, a piece of bread, a cup of water, a meal of victuals, from motives of complaisance and friendship, or in expectation of receiving similar favors in return; and not because these articles are not as much property, as are the most valuable commodities that men ever buy or sell. But for nearly all information that is specially valuable, or valuable enough to command a price worth demanding—though it be given in one’s private car, as legal or medical advice, for example—a pecuniary compensation is demanded, with nearly the same uniformity as for a material commodity. [21] And no one doubts that such information is a legitimate and lawful consideration for the equivalent paid. Courts of justice uniformly recognize them as such, as in the case of legal, medical, and various other kinds of information. One man can sue for and recover pay for ideas, which, as lawyer, physician, teacher, or editor, he has sold to another man, just as he can for land, food, clothing, or fuel.

SECTION VI.: How is the Right of Property acquired.

The right of property, in material wealth, is acquired, in the first instance, in one of these two ways, viz.: first, by simply taking possession of natural wealth, or the productions of nature; and, secondly, by the artificial production of other wealth. Each of these ways will be considered separately.

1. The natural wealth of the world belongs to those who first take possession of it. The right of property, in any article of natural wealth, is first acquired by simply taking possession of it.

Thus a man, walking in the wilderness, picks up a nut, a stick, or a diamond, which he sees lying on the ground before him. He thereby makes it his property—his own. It is thenceforth his, against all the world. No other human being, nor any number of human beings, have any right, on the ground of property, to take it from him, without his consent. They are all bound to acknowledge it to be his, and not theirs.

It is in this way that all natural wealth is first made property. And any, and all natural wealth whatsoever, that can be possessed, becomes property in consequence, and solely in consequence, of one’s simply taking possession of it.

There is no limit, fixed by the law of nature, to the amount of property one may acquire by simply taking possession of natural wealth, not already possessed, except the limit fixed by his power [22] or ability to take such possession, without doing violence to the person or property of others. So much natural wealth, remaining unpossessed, as any one can take possession of first, becomes absolutely his property.*

This mode of acquiring property, by taking possession of the productions of nature, is a just mode. Nobody is wronged—that is, nobody is deprived of any thing that is his own—when one man takes possession of a production of nature, which lies exposed, and unpossessed by any one. The first comer has the same right, and all the right, to take possession of it, and make it his own, that any subsequent comer can have. No subsequent comer can show any right to it, different in its nature, from that, which the first comer exercises, in taking the possession. The wealth of nature, thus taken, and made property, was provided for the use of mankind. The only way, in which it can be made useful to mankind, is by their taking possession of it individually, and thus making it private property. Until it is made property, no one can have the right to apply it to the satisfaction of his own, or any other person’s, wants, or desires. The first comer’s wants and desires are as sacred in their nature, and the presumption is that they are as necessary to be supplied, as those of the second comer will be. They, therefore, furnish to him as good [23] an authority for taking possession of the wealth of nature, as those of the second comer will furnish to him. They may chance to be either less, or more, violent, in degree; but whether less, or more, (if that were important to his comparative right,) the first comer cannot know. It is enough for him, that his own wants and desires have their origin in his own human-nature, in the same way that those of the second comer will have theirs. And such wants and desires are a sufficient warrant for him to take whatever nature has spread before him for their gratification, unless it have been already appropriated by some other person.

After he has taken possession of it, it is his, by an additional right, such as no other person can have. He has bestowed his labor upon it—the labor, at least, of taking it into his possession; and this labor will be lost to him, if he be deprived of the commodity he has taken possession of. It is of no importance how slight that labor may have been, though it be but the labor of a moment, as in picking up a pebble from the ground, or plucking a fruit from a tree. Even that labor, trifling as it is, is more than any other one has bestowed upon it. And it is enough for him, that that was his labor, and not another man’s. He can now show a better right to the thing he has taken possession of, than any other man can. He had an equal right with any other man before; now he has a superior one, for he has expended his labor upon it, and no other person has done the like.

It cannot be said that the first comer is bound to leave something to supply the wants of the second. This argument would be just as good against the right of the second comer, the third, the fourth, and so on indefinitely, as it is against the right of the first; for it might, with the same reason, be said of each of these, that he was bound to leave something for those who should come after him. The rule, therefore, is, that each one may take enough to supply his own wants, if he can find the wherewith, unappropriated. And the history of the race proves that under this rule, the last man’s wants are better supplied than were those of the first, owing to the fact of the last man’s having the [24] skill and means of creating more wealth for himself, than the first one had. He has also the benefit of all the accumulations, which his predecessors have left him. The first man is a hungry, shivering savage, with all the wealth of nature around him. The last man revels in all the luxuries, which art, science, and nature, working in concert, can furnish him.

Moreover, the wealth of nature is inexhaustible. The first comer can, at best, take possession of but an infinitesimal portion of the whole; not even so much, probably, as would fall to his share, if the whole were equally divided among the inhabitants of the globe. And this is another reason why a second comer cannot complain of the portion taken by the first.

There are still two other reasons why the first comer does no wrong to his successors, by taking possession of whatever natural wealth he can find, for the gratification of his wants. One of these reasons is, that when the wealth taken is of a perishable nature, as the fruit of a vine or tree, for example, it is liable to perish without ministering to the wants of any one, unless the first comer appropriate it to the satisfaction of his own. The other reason is, that when the wealth taken, is of a permanent nature, as land, for example, then the first comer, by taking possession of it—that is, by bestowing useful labor upon it—makes it more capable of contributing to the wants of mankind, than it would have been if left in its natural state. It is of course right that he should enjoy, during his life, the fruits of his own labor, in the increased value of the land he has improved; and when he dies, he leaves the land in a better condition for those who come after him, than it would have been in, if he had not expended his labor upon it.

Finally, the wealth of nature can be made available for the supply of men’s wants, only by men’s taking possession of portions of it individually, and making such portions their own. A man must take possession of the natural fruits of the earth, and thus make them his property, before he can apply them to the sustenance of his body. He must take possession of land, and [25] thus make it his property, before he can raise a crop from it, or fit it for his residence. If the first comer have no right to take possession of the earth, or its fruits, for the supply of his wants, the second comer certainly can have no such right. The doctrine, therefore, that the first comer has no natural right to take possession of the wealth of nature, make it his property, and apply to his uses, is a doctrine that would doom the entire race to starvation, while all the wealth of nature remained unused, and unenjoyed around them.

For all these reasons, and probably for still others that might be given, the simple taking possession of the wealth of nature, is a just and natural, as it is a necessary, mode of acquiring the right of property in such wealth.

2. The other mode, in which the right of property is acquired, is by the creation, or production, of wealth, by labor.

The wealth created by labor, is the rightful property of the creator, or producer. This proposition is so self-evident as hardly to admit of being made more clear; for if the creator, or producer, of wealth, be not its rightful proprietor, surely no one else can be; and such wealth must perish unused.

The material wealth, created by labor, is created by bestowing labor upon the productions of nature, and thus adding to their value. For example—a man bestows his labor upon a block of marble, and converts it into a statue; or upon a piece of wood and iron, and converts them into a plough; or upon wool, or cotton, and converts it into a garment. The additional value thus given to the stone, wood, iron, wool, and cotton, is a creation of new wealth, by labor. And if the laborer own the stone, wood, iron, wool, and cotton, on which he bestows his labor, he is the rightful owner of the additional value which his labor gives to those articles. But if he be not the owner of the articles, on which he bestows his labor, he is not the owner of the additional value he has given to them; but gives or sells his labor to the owner of the articles on which he labors.

Having thus seen the principles, on which the right of property [26] is acquired in material wealth, let us now take the same principles, and see how they will apply to the acquisition of the right of property in ideas, or intellectual wealth.

1. If ideas be considered as productions of nature, or as things existing in nature, and which men merely discover, or take possession of, then he who does discover, or first take possession of, an idea, thereby becomes its lawful and rightful proprietor; on the same principle that he, who first takes possession of any material production of nature, thereby makes himself its rightful owner.* And the first possessor of the idea, has the same right, either to keep that idea solely for his own use, or enjoyment, or to give, or sell it to other men, that the first possessor of any material commodity has, to keep it for his own use, or to give, or sell it, to other men.

2. If ideas be considered, not as productions of nature, or as things existing in nature, and merely discovered by man, but as entirely new wealth, created by his labor—the labor of his mind—then the right of property in them belongs to him, whose labor created them; on the same principle that any other wealth, created by human labor, belongs rightfully, as property, to its creator, or producer.

It cannot be truly said that there is any intrinsic difference in the two cases; that material wealth is created by physical labor, and ideas only by intellectual labor; and that this difference, in the mode of creation, or production, makes a difference in the rights of the creators, or producers, to the products of their respective labors. Any article of wealth, which a man creates or produces, by the exercise of any one portion of his wealth-producing faculties, is as clearly his rightful property, as is any other article of wealth, which he creates or produces, by any other portion of his wealth-producing faculties. If his mind [27] produces wealth, that wealth is as rightfully his property, as is the wealth that is produced by his hands. This proposition is self-evident, if the fact of creation, or production, by labor, be what gives the creator or producer a right to the wealth he creates, or produces.

But, secondly, there is no real foundation for the assertion, or rather for the distinction assumed, that material wealth is produced by physical labor, and that ideas are produced by intellectual labor. All that labor, which we are in the habit of calling physical labor, is in reality performed wholly by the mind, will, or spirit, which uses the bones and muscles merely as tools. Bones and muscles perform no labor of themselves; they move, in labor, only as they are moved by the mind, will, or spirit. It is, therefore, as much the mind, will, or spirit, that lifts a stone, or fells a tree, or digs a field, as it is the mind, will, or spirit, that produces an idea. There is, therefore, no such thing as the physical labor of men, independently of their intellectual labor. Their intellectual powers merely use their physical organs, as tools, in performing what we call physical labor. And the physical organs have no more merit in the production of material wealth, than have the saws, hammers, axes, hoes, spades, or any other tools, which the mind of man uses in the production of wealth.

All wealth, therefore, whether material or intellectual, which men produce, or create, by their labor, is, in reality, produced or created by the labor of their minds, wills, or spirits, and by them alone. A man’s rights, therefore, to the intellectual products of his labor, necessarily stand on the same basis with his rights to the material products of his labor. If he have the right to the latter, on the ground of production, he has the same right to the former, for the same reason; since both kinds of wealth are alike the productions of his intellectual or spiritual powers.

The fact, that the mind uses the physical organs in the production of material wealth, can make no distinction between such wealth, and ideas—for the mind also uses a material organ, (the [28] brain,) in the production of ideas; just as, in the production of material wealth, it uses both brain and bone.

So far, therefore, as a man’s right to wealth, has its origin in his production or creation of that wealth by his labor, it is impossible to establish a distinction between his right to material, and his right to intellectual, wealth; between his right to a house that he has erected, and his right to an idea that he has produced.

If there be any possible ground of distinction, his right is even stronger to the idea, than to the house; for the house was constructed out of that general stock of materials, which nature had provided for, and offered to, the whole human race, and which one human being had as much natural right to take possession of, as another; while the idea is a pure creation of his own faculties, accomplished without abstracting, from any common stock of natural wealth, any thing whatever, which the rest of the world could, in any way, claim, as belonging to them, in common with him.

SECTION VII.: What is the Foundation of the Right of Property?

The right of property has its foundation, first, in the natural right of each man to provide for his own subsistence; and, secondly, in his right to provide for his general happiness and well-being, in addition to a mere subsistence.

The right to live, includes the right to accumulate the means of living; and the right to obtain happiness in general, includes the right to accumulate such commodities as minister to one’s happiness. These rights, then, to live, and to obtain happiness, are the foundations of the right of property. Such being the case, it is evident that no other human right has a deeper foundation in the nature and necessities of man, than the right of property. If, when one man has dipped a cup of water from the [29] stream, to slake his own thirst, or gathered food, to satisfy his own hunger, or made a garment, to protect his own body, other men can rightfully tell him that these commodities are not his, but theirs, and can rightfully take them from him, without his consent, his right to provide for the preservation of his own life, and for the enjoyment of happiness, are extinct.

The right of property in intellectual wealth, has manifestly the same foundation, as the right of property in material wealth. Without intellectual wealth—that is, without ideas—material wealth could neither be accumulated, nor fitted to contribute, nor made to contribute, to the sustenance or happiness of man. Intellectual wealth, therefore, is indispensable to the acquisition and use of other wealth. It is also, of itself, a direct source of happiness, in a great variety of ways. Furthermore, it is not only a thing of value, for the owner’s uses, but, as has before been said, like material wealth, it is a merchantable commodity; has a value in the market; and will purchase, for its proprietor, other wealth in exchange. On every ground, therefore, the right of property in ideas, has as deep a foundation in the nature and necessities of man, as has the right of property in material things.

SECTION VIII.: How is the Right of Property Transferred?

From the very nature of the right of property, that right can be transferred, from the proprietor, only by his own consent. What is the right of property? It is, as has before been explained, a right of control, of dominion. If, then, a man’s property be taken from him without his consent, his right of control, or dominion over it, is necessarily infringed; in other words, his right of property is necessarily violated.

Even to use another’s property, without his consent, is to violate his right of property; because it is for the time being, [30] assuming a dominion over wealth, the rightful dominion over which belongs solely to the owner.

These are the principles of the law of nature, relative to all property. They are as applicable to intellectual, as to material, property. The consent, or will, of the owner alone, can transfer the right of property in either, or give to another the right to use either.

If it be asked, how is the consent of a man to part with his intellectual property to be proved? The answer is, that it must be proved, like all other facts in courts of justice, by evidence that is naturally applicable to prove such a fact, and that is sufficient to satisfy the mind of the tribunal that tries that question.

SECTION IX.: Conclusions from the Preceding Principles.

The conclusions, that follow from the principles now established, obviously are, that a man has a natural and absolute right—and if a natural and absolute, then necessarily a perpetual, right—of property, in the ideas, of which he is the discoverer or creator; that his right of property, in ideas, is intrinsically the same as, and stands on identically the same grounds with, his right of property in material things; that no distinction, of principle, exists between the two cases.

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CHAPTER II.: OBJECTIONS ANSWERED.

The objections that will be urged to the principles of the preceding chapter, are the following.

SECTION I.: Objection First.

It will be said there can be no right of property in ideas, for the reason that an idea has no corporeal substance.

This is an ancient argument, but it obviously has no intrinsic weight or soundness; for corporeal substances are not the only things that have value; they are not the only things that contribute to the welfare of man; they are not the only things that can be possessed by one man, and not by another; they are not the only things that can be imparted by one man to another; nor are they the only things that are the products of labor. Indeed, correctly speaking, corporeal substances are never the products, (that is, the creations,) of human labor. Human labor cannot create corporeal substances. It can only change their forms, qualities, adaptations, and values. These forms, qualities, adaptations, and values are all incorporeal things. Hence, as will be more fully shown hereafter, all the products—that is, all the creations—of human labor, are incorporeal.

To deny the right of property in incorporeal things, is equivalent to denying the right of property in labor itself; in the products of labor; and even in those corporeal substances, that are acquired by labor; as will now be shown.

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1. To deny the right of property in incorporeal things, is equivalent to denying the right of property in labor, because labor itself is incorporeal. It is simply motion; an action merely of the faculties. It has no corporeal substance. To deny, therefore, that there can be any right of property in incorporeal things, is denying that a man can have any right of property in his labor; and, of course, that he can have any right to demand pay for it, when he labors for another. Yet we all know that labor is a subject of property. A man’s labor is his own. It also has value. It is the great dependence of the human race for subsistence. It is of ten thousand thousand kinds. Each of these kinds, too, has its well understood market price; as much so as any corporeal substance whatever. And each of these various kinds of labor is constantly bought and sold as merchandise.

Labor, therefore, being incorporeal, and yet, by universal confession, a subject of property, the principle of the right of property in incorporeal things is established.

2. To deny the right of property in incorporeal things, is equivalent to denying the right of property in the products, (that is, in the creations,) of human labor: for these products, or creations, are all incorporeal. Human labor, as has already been said, cannot create corporeal substances. It can only create, and give to corporeal substances, new forms, qualities, adaptations, and values. These new forms, qualities, adaptations, and values are all incorporeal things. For example—The new forms, and new beauties, which a sculptor, by his labor, creates, and imparts to a block of marble, are not corporeal substances. They are mere qualities, that have been imparted to a corporeal substance. They are qualities, that can neither be weighed nor measured, like corporeal substances. Scales will not weigh them, nor yard sticks measure them, as they will weigh and measure corporeal substances. They can be perceived and estimated only by the mind; in the same manner that the mind perceives and estimates an idea. In short, these new forms and new beauties, which [33] human labor has created, and imparted to the marble, are incorporeal, and not corporeal things. Yet they have value; are the products of labor; are subjects of property; and are constantly bought and sold in the market.

So also it is with all the new forms, qualities, adaptations, and values, which labor creates, and imparts to the materials, of which a house, for example, is composed. These new forms, qualities, adaptations, and values, are all incorporeal. They can neither be weighed, nor measured, as corporeal substances. Yet without them, the corporeal substances, out of which the house is constructed, would have failed to become a house. They, therefore, have value. They are also the products of labor; are subjects of property; and are constantly bought and sold in the market.

The same principle holds good in regard to all corporeal substances whatsoever, to which labor gives new forms, or qualities, adapted to satisfy the wants, gratify the eye, or promote the happiness of man—whether the substances be articles of food, clothing, utensils for labor, books, pictures, or whatever else may minister to the desires of men. The new forms and qualities, given to each and all these corporeal substances, to adapt them to use, are themselves incorporeal. Yet they have value; are the products of labor; and are as much subjects of property, as are the substances themselves. And the destruction or injury of these forms and qualities, by any person not the owner, is as clearly a crime, as is the theft or destruction of the substances themselves. In fact, correctly speaking, it is only the incorporeal forms, qualities, and adaptations of corporeal substances, that can be destroyed. The substances themselves are incapable of destruction. To destroy or injure the incorporeal forms, qualities, and adaptations, that have been given to corporeal substances by labor, destroys or injures the market value of the substances themselves; because it destroys or impairs their utility, for the purposes for which they are desired. How absurd then to say that incorporeal things are not subjects of property.

[34]

The examples already given, of labor, the products, or creations of labor, (by which is now meant those forms, qualities, adaptations, and values, imparted by labor to corporeal substances,) would be sufficient to prove that incorporeal things are subjects of property. But, saying nothing as yet of ideas, there are still other kinds of incorporeal things, that are subjects of property. For example. A man’s pecuniary credit, or reputation for pecuniary responsibility, has value; is the product of labor; and is a subject of property. Various other kinds of reputation are also subjects of property. A magistrate’s reputation for integrity; a soldier’s reputation for courage; a woman’s reputation for chastity; a physician’s reputation for skill; a preacher’s reputation for sincerity, &c., &c., are all subjects of property. They have value; and they are the products of labor. Yet they are not corporeal substances.

Health is incorporeal. Strength is incorporeal. So also the senses, or faculties, of sight, hearing, taste, smell, and feeling are incorporeal. A person might lose them all without the loss of any corporeal substance. Yet they are all valuable possessions, and subjects of property. To impair or destroy them, through carelessness or design, is an injury to be compensated by damages, or punished as a crime.

Melody is incorporeal. Yet it has value; is the product of labor; is a subject of property; and a common article of merchandise.

Beauty is incorporeal. Yet it is a subject of property. It is a property, too, that is very highly prized—whether it be beauty of person, or beauty in those animals or inanimate objects, which are subjects of property. And to impair or destroy such beauty, is acknowledged by all to be a wrong, to be compensated in damages,—or a crime, to be visited with penalties.

A ride, and the right or privilege of riding, or of being carried, as, for example, on railroads, in steamboats, and public conveyances of all kinds, are incorporeal things. They cannot be seen by the eye, nor touched by the hand. They can only be perceived [35] by the mind. Yet they have value; are subjects of property; and are constantly bought and sold in the market.

The right of going into a hotel, or a place of public amusement, is not a corporeal substance. It nevertheless has value, and is a subject of property, and is constantly bought and sold.

Liberty is incorporeal. Yet it has value; and if it be not sold, it is because no corporeal substance is sufficiently valuable to be received in exchange for it.

Life itself is incorporeal. Yet it is property; and to take it from its owner is usually reckoned the highest crime that can be committed against him.

Many other kinds of property are incorporeal.

Thus it will be seen that thoughts are by no means the only incorporeal things that have value, and are subjects of property. Civilized society could not exist without recognizing incorporeal things as property.

3: To deny the right of property in incorporeal things, is equivalent to denying the right of property even in corporeal things.

What is the foundation of the right of property in corporeal things? It is not that they are the products, or creations, of human labor; for, as has already been said, human labor never produces—that is, it never creates—corporeal substances. But it is simply this—that human labor has been expended upon them—that is, in taking possession of them. The right of property, therefore, in corporeal things, has its foundation solely in human labor, which is itself incorporeal. Now it is clear that if labor, which is incorporeal, were not itself a subject of property, it could give the laborer no right of property in those corporeal substances, upon which he bestows his labor. A right cannot arise out of no right. It is absurd, therefore, to say that a man has no right of property in his labor, for the reason that labor is incorporeal, and yet to say that that same labor, (which is not his,) can give him a right to a corporeal substance, to which he confessedly has no other right, than that he has [36] expended labor upon it. If labor itself be not a subject of property, it follows, of necessity, that it can give the laborer no right of property in any thing else.

The necessary consequence, therefore, of denying the right of property in incorporeal things, as labor, for example, is to deny the right of property in corporeal things; because the right to the latter is only a result, or consequence, of a right to the former. If, therefore, we deny the right of property in incorporeal things, we must deny all rights of property whatsoever.

The idea, therefore, that incorporeal things cannot be subjects of property, is simply absurd, since it goes necessarily to the denial of all property; and since also it is itself denied by the common sense, the constant practice, and, above all, by the universal necessities, of mankind at large. On the other hand, if we admit a right of property in incorporeal things at all, then ideas are as clearly legitimate subjects of property, as any other incorporeal things that can be named. They are, in their nature, necessarily personal possessions; they have value; they are the products of labor; they are indispensable to the happiness, well-being, and even subsistence of man; they can be possessed by one man, and not by another; they can be imparted by one man to another; yet no one can demand them of another as a right; and, as has before been said and shown, they are continually bought and sold as merchandise.

The doctrine, however, that corporeal substances only could be subjects of property, was a somewhat natural one in the infancy of thought; when men’s theories about property were superficial and imperfect, partaking more of the character of instinct, than of reason, and when things visible by the eye, and tangible by the hand, would naturally be regarded, by unreasoning minds, as of a very different character, in respect of susceptibility of ownership, from such incorporeal things as ideas, of which few men had any worth setting a price upon. The distinction, however, between corporeal and incorporeal things, as subjects of property, is one entirely groundless in itself, and entirely unworthy of the [37] advanced reason of the present day; or even of any modern day; although modern days have seen the argument urged.*

Mankind have doubtless never consistently adhered to the theory that only corporeal things could be subjects of property. Probably in the darkest barbarism—certainly since the earliest history of civilization—incorporeal things, of various kinds, have been subjects of purchase and sale. The illiterate have sold their labor, which is incorporeal; and the learned, powerful, and artful, as, for example, the law-givers, magistrates, priests, physicians, astrologers, and necromancers, have sold their ideas. And the nature of men assures us, that there was never a time known among them, when the injury or destruction of various kinds of incorporeal property, as, for example, strength, sight, health, beauty, liberty, and life, was not considered and treated as a wrong to be avenged.

In modern times, with the advance of civilization, incorporeal things in a thousand forms, ideas included, have come to be among the most common articles of traffic; and contracts, based solely upon the ground of property in incorporeal things—as, for example, contracts to pay lawyers, physicians, preachers, teachers, editors, &c., for their ideas—are continually enforced by courts of justice, with the same uniformity as are contracts for corporeal things; while at the same time, the very tribunals, who enforce these contracts—tribunals composed, too, of men, who earn their official salaries only by giving their ideas in exchange for them—deny the principle of property in ideas. Such has been, and still is, the inconsistency of men’s opinions on this subject—an inconsistency that strikingly illustrates the immaturity of reason, the low state of legal science, and the imperfection of political and judicial institutions.

One obstacle to the universal acknowledgment of property in ideas, has been this. Mankind freely give away so large a portion of their ideas, and so few of their ideas are of sufficient [38] value to bring anything in the market, (except in the market of common conversation, where men mutually exchange their ideas,) that persons, who have not reasoned on the subject, have naturally fallen into the habit of thinking, that ideas were not subjects of property; and have consequently been slow to admit that, as a matter of sound theory or law, men had a strict right of property in any of their ideas. And yet these same doubters have themselves been, and now are, in the constant practice of buying ideas, in various ways, of magistrates, lawyers, physicians, preachers, teachers, editors, &c., and paying their money for them, without once dreaming that there was any more hardship or injustice in their being necessitated to do so, than in their being necessitated to buy their food or clothing.

Another reason, why the absolute right of property in ideas, has not been earlier, more consistently, and universally acknowledged, has been that, in the infancy of civil society, and even until a comparatively recent date, owing to the general ignorance of letters, and the want of records for that purpose, there has been a nearly or quite insuperable difficulty in maintaining that right in practice, by reason of there being no means of proving one’s property in an idea, after the idea itself had gone out among men. But that difficulty is now removed by the invention of records, by which a man may have his idea registered, and his right to it established, before it is disclosed to the public.

But what must settle, absolutely and forever, this question of the right of property in incorporeal things, is this—that the right of property itself is an incorporeality. The right of property is a mere incorporeal right of dominion, or control, over a thing. It is neither tangible by the hand, nor visible by the eye. It is a mere abstraction, existing only in contemplation of the mind. Yet this incorporeal right of dominion or control over a thing, is itself a subject of property—of ownership; one that is continually bought and sold in the market, independently of possession of the thing to which it relates.

To make this point clear to the unprofessional reader. There [39] are two kinds of property, which pertain to every corporeal thing that is owned. One is the right of property, or ownership, in the thing owned—that is, the right of dominion or control over the thing. The other is the possession of the thing owned. These two kinds of property are the only kinds of property, that any man can have in any corporeal thing. Yet these two kinds of property can exist, and often do exist, separately from each other. Thus one man may own a thing—that is, have the right of property in a thing—as a house, for example—and another man have the possession of it. One man has the abstract incorporeal right of dominion, or control, over the house; the other has, for the time being, the actual dominion—that is, the possession—which he holds, either with, or without, the consent of the owner, as the case may be.

Now, any one can see that this incorporeal right of the true owner, is itself a subject of property. It is a thing that may be owned, bought, and sold, independently of the other kind of property, viz.: possession. It often is owned, bought, and sold, independently of possession. For example, a man often buys, pays for, and owns, a house to-day, which he is not to have possession of until next week, next month, or next year. Yet, though out of possession of the house, his incorporeal right of property in it, is itself a legal and bona fide property, of which he is possessed. It is a property, which he himself may sell, if he so choose.

This incorporeal right of property is the property, that is principally regarded by the laws. Possession is comparatively of little importance. It is comparatively of little importance, because if a man own the right of property in a thing, he can then claim the possession, solely by virtue of that right, and the law will give it to him. On the other hand, if a man have possession of a thing, without the right of property in it, the law will compel him to surrender the possession to the one who owns the right of property. Hence, in nearly all controversies, in law, about property, the question is, Who has the right of property? [40] Not, Who has the possession? These facts show that the right of property, in any corporeal thing, is itself a subject of property, of ownership, independently of possession; and is so regarded by the laws. Yet it is but an incorporeality.

This incorporeal right of property is also the property, which is of chief consideration in the minds of men, in all their dealings with each other. It is what one man buys, and the other sells. They care little for possession; because they know that the right will, sooner or later, give them the possession. On the other hand, they know that possession, without the right, will be insecure, and of little value. For these reasons, in all legitimate traffic, the purchaser is careful to know that he buys the right of property—that is, that he buys of one, who really owns the property—has the abstract incorporeal right to it; and not of one who merely has the possession of it. This fact, too, shows that the right of property is itself a subject of property—of ownership—independently of possession of the commodity to which it relates; and is universally so recognized by mankind, in their every day dealings. Yet it is but an incorporeality.

To accumulate evidence on this point. That this right of property is itself a subject of property, and an incorporeality, is proved by the fact, that it is transferred from one man to another, simply by consent—by a mere operation of the mind—without any corporeal delivery of the thing, to which the right attaches. Thus two men, in New York, may exchange their respective rights of property, in two ships, that are, at the time, in the Pacific ocean. And this incorporeal transfer, of the incorporeal right of property, in the ships, enables each purchaser afterwards to claim the possession, dominion, and control of the ship itself, that he has purchased. Here it is clear that the incorporeal right of property, or dominion, is a legal entity, and a subject of property, of ownership; one, which is transferred, from one man to another, by an incorporeal act, a simple operation of the mind, viz.: the act of consent. Manifestly this incorporeal right of property, or dominion, is, of itself, independently of possession [41] of the commodity to which it relates, a subject of property, of ownership.

Again. This incorporeal right of property, being, of itself, a subject of property, it follows that no man can assert that he has a right of property even in a corporeal thing, without, at the same time, asserting, that an incorporeality is a subject of property, of ownership.

To conclude. The right of property being incorporeal, and being itself a subject of property, it demonstrates that the right of property may attach to still other incorporeal things; for it would be plainly absurd to say, that there could be an incorporeal right of property to a corporeal thing, but could be no incorporeal right of property to an incorporeal thing. Clearly an incorporeal right of property could attach to an incorporeal thing—a thing of its own nature—as easily as to a corporeal thing, a thing of a different nature from its own. The attachment of this incorporeal right of property, to a corporeal thing, is not a phenomenon visible by the eye, nor tangible by the hand. It is perceptible only by the mind. And the mind can as easily perceive the same attachment to an incorporeal thing, as to a corporeal one.

It will now be taken for granted, that this point is established, namely, that on principles of natural law, incorporeal things are subjects of property. If that point be established, it is self-evident that ideas are naturally subjects of property; that their incorporeality is no objection whatever to their being owned as property.

SECTION II.: Objection Second.

The second objection, that is urged against the right of property in ideas, is, that, admitting, (what cannot with the least reason be denied,) that a man is the sole proprietor of an idea, [42] so long as he retains it in his exclusive possession, he nevertheless loses all exclusive right of property in it the moment he communicates the idea to another person, because that other person thereby acquires as complete possession of the idea, as the original proprietor.

This is a very shallow objection, since it is founded wholly on the assumption, that if a man once intrust his property in another man’s keeping, he thereby loses his own right of property in it; whereas men are constantly intrusting their property in other men’s hands, in many different ways, and for many different purposes, as for inspection, for hire, for sale, for safe keeping, for the purpose of having labor performed upon it, and for purposes of kindness and accommodation, without their right of property being in the least affected by it. Possession has nothing to do with a man’s right of property, after that right has once been acquired. He can then lose his right of property, only by his own consent to part with it.

This impossibility of losing one’s right of property, otherwise than by his own consent, is involved in the very nature of the right of property, which is a right of dominion—that is, a right to have a thing subject to one’s will. It is an absurdity, a contradiction, to say that a man’s right to have a thing subject to his will, can be lost against his will; or can be separated from him by any other process than his own will that it shall be separated from him. Hence a man can never sell, or give away, any thing that is his, by any other process than an act of his will, namely, his consent to part with his right of property in it. Otherwise a man would lose his right of property in a thing, every time he suffered another to take possession of that thing. He could not intrust an article of property in another man’s hand for a moment, for any purpose whatever, without losing his right to it forever. Yet men habitually intrust their property in each other’s keeping, with perfect freedom, without their ownership, or right of property, being in the least impaired thereby.

No assertion could be more utterly absurd, in regard to any [43] corporeal thing, than that a man loses his right of property in it, by simply parting with his possession of it; for every day’s and every hour’s experience, both in business and in law, would give the lie to it. And yet the assertion is equally absurd, when made in respect to incorporeal things, as when made in respect to corporeal things. There is not so much as an infinitesimal difference between the two cases.

The admission, therefore, that a man owns an idea, as property, while it is in his exclusive possession, is an admission that he owns it forever after, in whosesoever possession it may be, until he has consented to part, not merely with his exclusive possession, but also with his right of property in it.

The only question, then, on this point, is, whether it is to be presumed, simply from the fact that a man voluntarily parts with the exclusive possession of his idea, that he therefore consents to part also with his exclusive right of property in it? In other words, whether it is to be presumed that a man consents to part with his exclusive right of property in his idea, simply from the fact that he makes that idea known to another person?

To answer this question requires a little analysis of the nature of the act, on which the presumption, if it exist at all, is founded.

In the case of a corporeal commodity, the act of making it known, and the act of giving possession of it, are distinct acts—the first not at all implying the last. But in the case of an idea, the act of making it known, and the act of giving possession of it, are necessarily one and the same act; or at least one necessarily involves the other. Yet, although the act of making an idea known, and the act of giving possession of it, are, in reality, one and the same act, still the act has two distinct aspects, in which it may be viewed, viz.: first, that of simply making the idea known (as in the case of making known a corporeal commodity); and, secondly, that of giving possession of it. And the question proposed will be simplified, and more easily and conclusively [44] answered, by considering the act in each of these aspects separately.

The first question, then, is, whether it is to be presumed that a man intends to part with his exclusive right of property in an idea, simply because he makes the idea known to another person?

Obviously there is no more ground, in nature, or in reason, for presuming that a man intends to part with his right of property, in an idea, simply because he describes it, or makes it known, to another person, than there is for presuming that he intends to part with his right of property, in any corporeal commodity, simply because he describes it, or makes it known, to another person. If a man describe his horse to another person, nobody presumes therefrom that he intends to part with his right of property in his horse. And it is the same of every other corporeal commodity. What more reason is there for presuming that he intends to part with his right of property in an idea, simply from the fact that he describes the idea, or makes it known, to his neighbor? Certainly there is none whatever, if we but regard the act, (as we are now attempting to do,) simply as making known the idea, and not as giving possession of it. On any other principle than this, men could not talk about their property to their neighbors, without losing their exclusive right to it.

Nothing, therefore, could be more entirely farcical, than the notion, that a man loses his exclusive right of property, in an idea, simply by making the idea known to other persons—provided, always, that the act of making the idea known, be regarded simply as such, and not as giving possession of it.

Let us now look at the act of making known an idea, in its other aspect, viz.: that of giving possession of it.

Here the question is, whether it is to be presumed that a man intends to part with his right of property in an idea, simply because he puts the idea into the possession of another person?

Here, too, there is manifestly no more ground, in nature, or in reason, for presuming that a man intends to part with his right [45] of property, in a valuable idea—that is, an idea having an important market value—simply because he gives it into the possession of another person, (without receiving any equivalent, or otherwise indicating any intention to part with his right of property in it,) than there is for presuming that he intends to part with his right of property, in any corporeal commodity, of the same market value with the idea, simply because he gives such commodity into the possession of another person (without receiving any equivalent, or otherwise indicating any intention to part with his right of property in it). It is just as improbable, in reason, and in nature, that a man would gratuitously part with his right of property in an idea, that was worth in the market a hundred, a thousand, or a hundred thousand dollars, as it is that he would gratuitously part with his right of property, in a corporeal commodity, of the same market value.

The legal presumption, therefore, as to whether a man does, or does not, intend to part with his right of property in an idea, when he puts that idea into the possession of another person, will depend very much upon the market value of the idea. In short, the legal presumption will be governed by precisely the same principles, as in the case of a corporeal commodity.

To illustrate these principles. If one man give to another the possession of a corporeal commodity, of so small value as a nut, an apple, or a cup of water, for example, without saying whether he also gives the right of property in it, the legal presumption clearly is that he does intend to give the right of property. Such is the legal presumption, because such is clearly the moral probability, as derived from the general practice of mankind. But if a man were to give to another the possession of a corporeal commodity, of so large value as a horse, a house, or a farm, without receiving any equivalent, and without specially making known that he also gave the right of property in it, the legal presumption clearly would be, that he did not intend to give the right of property. Such would clearly be the legal presumption, solely because such would clearly be the moral probability, as derived [46] from the general practice of mankind. But where the value of a corporeal commodity is neither so great, on the one hand, nor so small, on the other, as to furnish any clear rule of probability, as to whether the owner intended to reserve his right of property in it, or not, no absolute legal presumption, as to his intentions, can be derived solely from the fact of his giving possession of the thing itself; and consequently his intention, as to parting with his right of property, or not, may need to be proved by other evidence.

In the case of intellectual property, the legal presumption would follow the same rules of moral probability, as in the case of material property—that is, it would follow the rule of probability, where the probability, as derived from the general practice of mankind, was clear. But where the probability was not clear, the intention of the owner would be a fact to be proved by circumstances. If, for example, one man gave possession to another of an idea, that either had a merely trivial market value, or no market value at all, (like the ideas which men usually give freely to each other in conversation,) without otherwise indicating any intention as to parting with his right of property in it, the legal presumption, like the moral probability, would be, that he did intend to part with his exclusive right of property in it. But if, on the other hand, he gave possession of an idea, that had a large market value, without otherwise indicating his intention as to parting with his right of property in it, the legal presumption, like the moral probability, would be that he did not intend to part with his right of property. But where the value of the idea was neither so small, on the one hand, nor so large, on the other, as to furnish a clear rule of probability as to the owner’s intentions, the fact of his intention would be open to be proved by circumstances.

Of course a man could always reserve his right of property, in ideas of the smallest value, or part with his right of property, in ideas of the largest value, by specially making known that such were his intentions.

[47]

Whether, therefore, the act of making known an idea, be regarded simply as making it known, (as in the case of making known a corporeal commodity,) or as also giving possession of it, it affords no ground for presuming that the owner intended to part with his exclusive right of property in it, provided the idea be a valuable one for the market; because it is naturally as improbable, that a man would gratuitously part with his right of property, in an idea, that would bring him an important sum in the market, as it is that he would gratuitously part with his right of property, in a corporeal commodity, that would bring the same sum in the market.

If it were possible for the law to regard the act of making an idea known, simply as making it known, (as in the case of making known a corporeal commodity,) and not also as giving possession of it, it would clearly be the duty of the law so to regard it, whenever the idea was one that had an important value in the market. And why should the law so regard it? First, because such would clearly be the intention of the owner of the idea. When he describes his idea to his neighbor, he no more intends to convey to him any valuable property right in the idea itself, beyond a mere knowledge of it, than he intends to convey a valuable property right in a corporeal commodity, beyond a mere knowledge of it, when he describes such commodity to his neighbor. His intention, in either case, is simply to convey a bare knowledge of the idea, or of the corporeal commodity, and nothing more. And his intention should be taken for what it really is, and for nothing else, if that be possible.

A second reason to the same point is this. The one, to whom the owner communicates an idea, had no claim to it. He did not produce it. He pays nothing for it. He had no claim upon the owner to furnish it to him. The owner did him a kindness, by giving him a simple knowledge of the idea, without any other right. These are sufficient reasons why, after the idea is made known to him, he should claim no further rights in it, than the owner intended to convey to him. They are also sufficient reasons [48] why the law should, if it be possible, give such a construction, and only such a construction, to the act making known the idea, as the owner intended.

But since the act of making an idea known, necessarily involves the giving possession of it, the law must, perhaps, necessarily regard it as giving possession of it. If so, the owner, when he makes an idea known, must take all the consequences that necessarily follow from giving possession of it. We have seen what those consequences are, to wit. Where the idea has a merely trivial market value, the presumption clearly is, that the owner intends to part with his exclusive right of property in it. Where the idea has a large market value, the presumption clearly is, that he does not intend to part with his exclusive right of property in it. But where the market value of the idea is neither very important, nor really unimportant, no very strong presumption either way can arise from the simple fact of giving possession; and the owner’s intention will be open to be determined by other circumstances.

But there are very weighty reasons of policy, as well as of justice, why the fact, that a man makes known an idea, or gives possession of it, should, in no case, where his intentions are at all doubtful, be construed unfavorably to his retaining his right of property in it; and why the rule should at least be as stringent, in favor of the owner, in the case of ideas, as in the case of material commodities of the same market value. These reasons are as follows.

First. Because it is manifestly contrary to reason and justice to presume that a man intends any thing, adverse to his own rights and his own interests, where no cause is shown for his doing so. This reason is as strong in the case of an idea, as in the case of a material commodity.

Secondly. Because men will be thereby discouraged from producing valuable ideas; from making them known; from offering them for sale; and from thereby enabling mankind to purchase, and have the benefit of them. The law should as much [49] encourage men to produce and make known valuable ideas, and offer them for sale, as it does to produce and make known valuable material commodities, and offer them for sale. It should therefore as much protect a man’s right of property in a valuable idea, after he has produced it, and made it known to the public, and offered it for sale, as it should his right of property in a valuable material commodity, after he has produced it, and advertised it to the public. It would be no more absurd or atrocious, in policy, or in law, to deprive a man of his right of property in a valuable material commodity, as a penalty for exhibiting or offering that commodity to the public, than it is to deprive a man of his right of property in a valuable idea, as a penalty for bringing that idea to the knowledge of the public. If men cannot be protected in bringing their valuable ideas into the market, they will either not produce them, or will keep them concealed as far as possible, and strive to realize some profit by using them as far as they can, in private. In short, they will do just as men would do with their material commodities, if they were not protected in making them known to the public—that is, either not produce them, or keep them concealed, and use them in private, instead of offering them for sale to those who would purchase and use them, for their own benefit, and the benefit of the public. The law cannot compel men to produce valuable ideas, and disclose them to the world; it can only induce them to do it. And it can induce them to do it, only by protecting their right of property in them, or by making some other compensation for them.

Thirdly. The law ought not only to encourage mankind to trade with each other, but it ought to encourage them to trade honestly, intelligently, and therefore beneficially; and not knavishly, blindly, or injuriously. It ought, therefore, to encourage them to exhibit their commodities, and make known their true qualities in the fullest manner, to those who propose to become purchasers. If, therefore, a man have an idea to sell, he should be encouraged to make its true character and value fully known to the intended purchaser. But this he can do only by putting [50] the idea into the possession of the proposed purchaser. This act, then, which the interests of the proposed purchaser require, and which the owner consents to for the satisfaction, safety, and benefit of the proposed purchaser, certainly ought not to be construed against the rights of the owner; any more than the fact, that the owner of any material commodity gives it into the hands of a proposed purchaser, in order that the latter may inspect it, and judge whether it be for his interest to purchase it, ought to be construed unfavorably to the rights of the owner.

No law could be more absurd in itself, or hardly more fatal to honesty in trade, or even more destructive to trade itself, than a law, that should forbid the owner of a commodity to exhibit it, submit it freely to inspection, or even give it into the possession of a proposed purchaser, for examination and trial, except under penalty of thereby forfeiting his right of property in it. Commercial society could not exist a moment under such a principle. In fact, neither civil, social, nor commercial society could exist under it. And the principle is just as absurd, fatal, and destructive, when applied to ideas, as it would be if applied to material commodities.

In the traffic in material commodities, the law encourages honesty, confidence, disclosure, examination, inspection, and intelligence, by protecting the rights of the true owner, even though he surrender the commodity into the exclusive possession of a man, who proposes to purchase it. This is more than is ever necessary in the case of an idea; for there the owner always retains an equal possession, with the individual to whom he communicates the idea. How absurd and inconsistent, then, is it to say that the owner of the idea, loses his right of property in it, by allowing another simply to participate with himself in its possession, while the owner of a material commodity retains his right of property, notwithstanding he surrender to another the exclusive possession.

If the owner of a house admit a person into his house, either on business, or as a friend, or for inspection as a proposed purchaser, [51] he thereby as much admits such person to an equal possession with himself of the house, as the owner of an idea, admits a man to an equal possession of it, when he admits a friend, neighbor, or proposed purchaser, to a knowledge of that idea. And there is as much foundation, in justice, and in reason, for saying that the owner of the house thereby loses his exclusive right of property in his house, as there is for saying that the owner of the idea thereby loses his exclusive right of property in his idea.

So also, if the owner of a farm admit a man upon his farm, in company with himself, for any purpose whatever, he as much admits such person to an equal possession of it, for the time being, as the owner of an idea admits a man to an equal possession with himself, when he admits such person to a knowledge of that idea. And there is as much foundation, in justice, and in reason, for saying that the owner of the farm thereby loses his exclusive right of property in his farm, as there is for saying that the owner of the idea thereby loses his right of property in his idea.

It cannot be said that there is any want of analogy between these cases of the house and the farm, on the one hand, and of the idea on the other, for the reason that, in the cases of the house and the farm, the joint possession is temporary, but that, in the case of the idea, the joint possession is necessarily perpetual—(inasmuch as a man cannot at will be dispossessed, or dispossess himself, of an idea, after he has once become possessed of it). This difference in the cases is wholly immaterial to the principle, for the reason that, if equal possession were to give equal right of property, it would give it on the first moment of possession; and the one, who should thus acquire an equal right of property, would have thenceforth as much right to make his possession perpetual, as would the original owner.

This conclusion is so obvious and inevitable, and would be so fatal to all rights of property, that where one man thus admits another upon his premises, the law does not even consider it a [52] case of joint possession, for any legal purpose whatever, except to protect the person admitted from violence during, and on account of, such occupation as he has been voluntarily admitted to. But for any purposes of property, control, use, ownership, or dominion, against the will of the true owner, it is not, in law, a case even of joint possession. And if this be a sound principle, in the case of the house, or the farm—as it unquestionably is—and one indispensable to the co-existence of social life and the rights of property—it is an equally sound principle, when applied to an idea.

On this principle, then, a person admitted, by its owner, to the knowledge or possession of an idea, without any intention, on the part of the owner, to part with any right of property in it, is not entitled even to be considered a joint possessor of the idea, for any legal purpose whatever, beyond the intention of the owner, except for the simple purpose of giving him a lawful protection from violence during, and on account of, such a possession as the owner has voluntarily admitted him to. For any of the purposes of property, control, use, or dominion, against the will of the true owner, he is no more in the legal possession of the idea, than, in the cases before supposed, the man admitted by the owner into a house, or upon a farm, is in legal possession of such house or farm.

In short, the general principle of law is, that where one man intrusts his property in another man’s possession, the latter has no right whatever to use it, otherwise than as the owner consents that he may use it. Not being the owner of it, he can exercise no kind of dominion over it, except such as the owner has given him permission to exercise. If he do use it, without the owner’s permission, and any inconvenience be occasioned to the owner thereby, or the property come to any harm in consequence, he becomes legally liable to pay the damages. Or if he use the property for purposes of profit, without the owner’s permission, the profits belong to the owner of the property, and not to the one having possession of it.

[53]

These are the general principles of the law of nature in regard to property intrusted by one man to the keeping of another. And they are as applicable to incorporeal property—ideas, for example—as they are to corporeal property.

The only exception to these principles, that is of sufficient importance to be noticed here, is where the keeping of another’s property is attended with expense, as a horse, for example, which must be fed. In such a case, if the owner have made no provision for the support of the horse, the man having possession of him may use him enough to pay for his keep. But the principle of this exception would not apply at all to intellectual property—an idea, for example—which one man had intrusted to another; because the keeping of it would be attended with no expense. The man having it in his possession, therefore, would have no right to use it, without the owner’s consent.

The conclusion, therefore, is, that when one man communicates a valuable idea to another, without any intention of parting with his exclusive right of property in it, the latter receives a simple knowledge, or naked possession, of the idea, without any right of property, use, control, or dominion whatever, beyond what the true owner intended he should have.

To conclude the argument on this point. There is one monstrous inconsistency, or more properly one monstrous absurdity, in the laws, as at present administered, relative to intellectual property. It is this—that unknown ideas are legitimate objects of property and sale; but that known ideas are not.

Thus the law, as now administered, holds, that if a man can make a contract, for the sale of his ideas, without first making them known, or enabling the purchaser to judge of their value, or of their adaptation to his use, they are a sufficient consideration for the contract, and consequently legitimate objects of property and sale; and the contract is binding upon the purchaser; and the seller, upon the delivery of the ideas, can compel the payment of the price agreed upon for them. But if he first make his ideas known, so as to enable the proposed purchaser to see what [54] he is buying, and judge of their value, and their adaptation to his uses, they are no longer legitimate objects of property or sale; are an insufficient consideration for a contract; and the owner thereby loses his power of making any binding contract for the sale of them; and loses his exclusive property in them altogether.

Thus the principle of the law, as now administered, clearly is, that if a man buy ideas, without any knowledge of them, he is bound to pay for them. But if he buy them, after full inspection, and proof of their value, he is not bound to pay for them. They are then no longer merchandise. In short, the principle acted upon is, that unknown ideas are objects of property and sale; but known ideas are not.

To illustrate. If a man contract with the publisher of a newspaper, to furnish him a sheet of ideas, daily or weekly, for a year, for a given sum—the ideas themselves being of course unknown at the time of the contract, and their intrinsic value being necessarily taken on trust—such ideas are legal objects of property and sale, and a sufficient consideration for the contract; and the contract is therefore binding upon the purchaser, even though the ideas, when they come to be delivered, should prove not to be worth half the price agreed upon. So, too, if a man contract with a lawyer to furnish him legal ideas; or with a preacher to furnish him religious ideas; or with a physician to furnish him medical ideas—the ideas themselves being unknown at the time of the contract, and their value therefore necessarily taken on trust—such ideas are a sufficient consideration for a contract; and consequently legitimate objects of property and sale; and must be paid for, on delivery, even though they should prove to be not half so valuable as the purchaser had anticipated they would be. But if a man have a mechanical idea to sell, and for the satisfaction of the proposed purchaser, exhibit it to him, and demonstrate its value, and its adaptation to his purposes, before asking him to purchase it, the law, as now administered, holds that it is no longer the exclusive property of the original [55] owner; no longer an object of sale between these parties; but has already become the joint property of both, without any consideration for it having passed between them.

Now, it is plain that this principle is as false in policy, as false in ethics, and as false in reason, as would be the same principle, if applied to corporeal commodities—making them lawful objects of property and sale, provided contracts for them be entered into before the purchaser sees them, or knows what they are; but no longer objects of property or sale, after those, who wish to purchase and use them, shall have inspected them, and become satisfied of their value, and adaptation to their purposes.

It cannot be said that there is a difference between the two classes of cases—that in the case of the lawyer, the preacher, and the physician, they sell not their ideas, but the labor of producing them, and of making them known, or delivering them; whereas in the case of the inventor, he seeks to sell, not the labor of producing, or making known, or delivering his idea, (for that labor has already been performed on his own responsibility,) but the idea itself. This cannot consistently be said, because it is really the idea only that is paid for, or for which pay is claimed in either case. The labor, neither of producing, nor of making known, or delivering ideas, has any intrinsic value, independently of its products—that is, independently of the ideas produced, made known, or delivered, by it. We pay for labor, whether intellectual or physical, only for the sake of its products. We do indeed call it paying for labor, instead of paying for its products. And, in one sense, we do pay for the labor, rather than for its products; because we pay for the labor, taking our risk whether its products will be of any value. Yet, in reality, it is only the products of the labor, that we have in view, when we buy the labor. No one buys labor for its own sake; nor for any other reason than that he may thereby become the owner of its products. By buying the labor, one makes himself the owner of its products; and this is the whole object of buying the labor itself. The difference, therefore, between buying labor, and buying [56] the products of labor, is a difference of form merely, and not of substance. The products of labor are all that make labor of any value, and all that are really had in view when the labor is purchased.

This difference in the two cases—that is, between selling ideas themselves, and selling the labor of producing, and making known, or delivering, ideas—is immaterial for still another reason, viz.: that it would be absurd to say that the intellectual labor of producing ideas, or the physical labor of speaking, printing, or otherwise delivering them, was a legitimate object of property or sale, unless the ideas themselves, thus produced and delivered, were also legitimate objects of property and sale. To say this would be as absurd as to say that the labor of producing or delivering corporeal commodities, was a proper object of property and sale; but that those commodities themselves were not proper objects of property or sale.

To be consistent, therefore, the law should either hold, that the labor of producing, and making known, or delivering, ideas, is not an object of property and sale; or else it should hold that the ideas themselves are objects of property and sale.

The object of buying known ideas, and of buying the labor that produces, and makes known, or delivers unknown ideas, is the same, viz.: to get ideas for use. And to say that an idea is not as legitimate an object of property and sale, as is the labor of producing or delivering it, is just as absurd as it would be to say that wheat is not itself a legitimate object of property or sale, but that the labor of producing and delivering wheat is a legitimate object of property and sale.

All intellectual labor, therefore, that is employed in producing ideas, and all physical labor, (including manuscript writing, and printing, as well as speaking,) that is employed in making known ideas, should be held to be no subjects of property or sale, and no sufficient considerations for a contract; or else all the ideas produced by intellectual labor, or delivered or made known by physical labor, should also be held to be legitimate subjects of [57] property and sale, and sufficient considerations for contracts. And if they are legitimate subjects of property and sale, and sufficient considerations for contracts, before they are made known to a proposed purchaser, and before he can see what they are, or judge of their value, or of their adaptation to his use, it is absurd and inconsistent to say that they are not at least equally legitimate subjects of property and sale, and quite as valid considerations for contracts, after they have been made known to a proposed purchaser, and he has examined them, seen what they are, and ascertained their value, and their adaptation to his use.

The argument of possession is of no force against this view of the case, because, as we have seen, the possession given, is simply the knowledge, or naked possession, of the idea, without any right of use, property, contract, or dominion, beyond what the true owner intended to convey, when he made the idea known.

SECTION III.: Objection Third.

A third objection, that has been urged against a right of property in ideas, any longer than they remain in the exclusive possession of the originator, is, that ideas are of the nature of wild animals, which, being once let loose, fly beyond the control of man; thus interposing an obstacle, in a law of their own nature, to the maintenance of any dominion over them, after they have once been liberated.

This objection is utterly fanciful and unfounded. The resemblance between a flying thought, and a flying bird, may be sufficiently striking for purposes of poetry and metaphor, but has none of the elements of a legal analogy. A thought never flies. It goes only as it is carried by man. It never escapes beyond the power of men; but is always wholly under their control; having no existence, nor habitation, except in their minds.

[58]

Renouard, in his argument against the right of property in ideas, asks, “Who can doubt that thought, by its own essence, escapes exclusive appropriation?”* I answer the question by asking, Who can pretend, for an instant, that thought does, “by its own essence,” or by any law of its own nature, escape exclusive appropriation? Nothing is, by its own essence and nature, more perfectly susceptible of exclusive appropriation, than a thought. It originates in the mind of a single individual. It can leave his mind only in obedience to his will. It dies with him, if he so elect. And, as matter of fact, doubtless ninety-nine out of every hundred of every man’s thoughts do really die with him, without having ever been in the possession of any other than his single mind.

When a thought does go beyond the mind of its original possessor, it goes only to such minds as he wills to have it go to. And it can then leaye their minds only in obedience to their wills; and can go only to such minds as they choose to deposit it with.

A thought, then, never, “by its own essence,” or by any law of its own nature, goes out of the exclusive possession of the mind that originated it. It never “escapes” from the custody, either of its first owner, or of any subsequent owner or possessor. If it be regarded as a living creature, it is no wild animal; but one thoroughly domesticated; neither capable of going, by its own powers, nor ever seeking to go, beyond the limits assigned for its habitation.

Is not a thought, then, “by its own essence” and nature, a subject of “exclusive appropriation?” Nothing is more self-evident than that it is. Neither wood nor stone is more susceptible of “exclusive appropriation,” than a thought. And if it be susceptible of exclusive appropriation, it is a legitimate subject of property.

[59]

This conclusion is not impaired at all by the fact, that, if the owner of an idea do but once give it into the possession of another person, it is then liable and likely, not to go of itself, but to be carried, to millions of minds. The owner understands all this when he makes his thought known; and in many, perhaps most, cases desires and intends it—knowing that no right of property or use will go with the idea; but that the more extensive the knowledge or possession of it, the more numerous will be those, who will come to him to buy the idea itself, or the right of using it.

But perhaps it will be said that an idea, once disclosed, though in confidence, to a single individual, may be given by him, against the will of the true owner, into the possession of mankind at large. This is true, but it can only be done wrongfully; and then no right of property or use goes with the idea, unless in the case of what the law calls an innocent purchaser for value. And the wrong-doer is responsible for the wrong, if any injury accrue to the owner in consequence of it. The principle is precisely the same as in the case of a corporeal commodity, intrusted by its owner to the keeping of another. If the person thus intrusted, prove false to his trust, and deliver the commodity over to a third person, against the will of the owner, no right of property goes with it, (unless to an innocent purchaser for value,) and the wrong-doer is responsible for his wrong, if the owner of the commodity sustain any loss in consequence. And this principle is just as sound, when applied to an idea, as when applied to a corporeal commodity.

SECTION IV.: Objection Fourth.

It is said that ideas have no ear-marks, by which their ownership may be known. And hence it has been inferred that ideas cannot be subjects of ownership; though it would doubtless [60] puzzle any one to show any connexion between the premises and the conclusion.

This objection is as frivolous as the others; for neither has corporeal property usually, if ever, any ear-marks by which the world at large can know who is the owner. Nevertheless, when mankind see corporeal wealth, as a horse, a house, or a farm, for example, which bears evidence of human labor, and which has too much market value to justify the idea that the owner would voluntarily abandon it, they infer that it has an owner, though he may be at the time unknown to them. So it should be with an idea. When a man has communicated to him an idea, or a device, that he never knew before,—as that of a steam engine, for example—or any other that has such market value, that he cannot reasonably suppose the owner would gratuitously part with his right of property in it, he ought, as a rational man, to infer that it has an owner, though it have no proprietary mark, by which its owner can be known to a stranger. On the other hand, if the idea be one that has so little market value, that the author would not be likely to make it an article of merchandise, or to set any value upon it as an exclusive property, he may reasonably infer that it is free to any one who chooses to use it.

If it be said that an idea has no mark, by which its own producer or proprietor can know it, the objection is unfounded; since a man does know his own ideas, as well as he knows either the faces of his children, the animals he has reared, or the house he has built. In this respect ideas have the advantage over very many kinds of corporeal commodities. For example, a man cannot distinguish his own piece of coin, from the hundreds of thousands of others stamped in the same mould. Neither can a man often, if ever, identify his own wheat, oats, or other grain, by a simple inspection of the grain itself. He can identify it only by circumstances. And it is the same with a very great variety of corporeal commodities.

If it be said that, for want of ear-marks, the producer of an idea cannot establish his authorship of it, to the satisfaction of [61] the legal tribunals, the answer is, that, notwithstanding the want of ear-marks, that very thing is now done every day; partly by means of records, where men sometimes register their ideas, and thus make the evidence, before making the ideas known to the world; and partly by a great variety of other evidence, which such cases generally admit of.

If, however, either from the nature of ideas, or any other cause, a man fail to identify an idea as his, to the satisfaction of the tribunal that tries the question, he must lose his right of property in it; the same as men must do, when they lack evidence to establish their right to corporeal commodities, which are really theirs. But because a man may sometimes, for want of evidence, fail to identify an idea as his, when it really is his, that is no reason why he should not hold his property in all those ideas, which he can prove, to the satisfaction of the legal tribunals, to be his. In short, the same rules, on this point, are applicable to ideas, that are applicable to corporeal commodities.

SECTION V.: Objection Fifth.

A fifth objection, that is urged to a man’s having a right of property in his inventions, is, that the course of events, and the general progress of knowledge, science, and art, suggest, point to, contribute to, and aid the production of, certain inventions; and that it would therefore be wrong to give to a man an exclusive and perpetual property, in a device, or idea, which is not the unaided production of his own powers; but which so many circumstances, external to himself, have contributed and aided to bring forth.

This objection is as short-sighted as the others. If sound, it would apply as strongly against the right of property in material, [62] as in intellectual wealth. But has a man no right of property in the gold he finds and gathers in California, because the course of events pointed him thither? and the general progress of knowledge, science, and art supplied railroads and steamboats to carry him there? and tools to work with after he arrived? As well might this bo said, as to say that a man should have no property in his idea, because the course of events, and the progress of knowledge, pointed him to it, and enabled him to reach it.

The course of events, and the general progress of knowledge, science, and art, as used in this objection, have no other meaning than this—They mean simply all the various kinds of knowledge that have come down to us from the past—(including in the past, not merely the ancient time, but all past time up to the present moment).

The sum of this argument, therefore, is, that authors and inventors have the benefit of all the knowledge that has come down to us, to aid them in producing their own writings and discoveries; and therefore they should have no right of property in their writings and discoveries.

If this objection be sound, against the rights of authors and inventors to their intellectual productions, then it will follow that other men have no right of property in any of those corporeal things, which the knowledge, that has come down to us, has enabled them to produce, or acquire. The argument is clearly as applicable to this case as the other.

It is no doubt true, that the course of events, and the general progress of knowledge, science, and art, do suggest, point to, contribute to, and aid the productions of, many, possibly all, inventions. But it is equally true that the course of events, and the general progress of knowledge, science, and art, suggest, point to, contribute to, and aid the production and acquisition of, all kinds of corporeal property. But that is no reason why corporeal things should not be the property of those, who have produced or acquired them. Yet the argument is equally strong against the right of property in corporeal things, as in intellectual [63] productions. If, because authors and inventors, in producing their writings and discoveries, had the advantage of the course of events, and the general progress of knowledge, in their favor, they are to be denied the right of property in the fruits of their labors, then every other man, who has the course of events, and the progress of knowledge, science, and art in his favor, (and what man has not?) should, on the same principle, be denied all ownership of the fruits of his labor—whether those fruits be the agricultural wealth he has produced, by the aid of the ploughs, and hoes, and chains, and harrows, and shovels, which had been invented, and the agricultural knowledge which had been acquired, before his time; or whether they be the houses or ships he has built, through the aid of the axes, and saws, and planes, and hammers, which had been devised, and the mechanical knowledge and skill that had been acquired, before he was born.

But has the farmer no right of property in his crops, because in producing them, he availed himself of all the agricultural implements, and agricultural knowledge, which other men had devised, and left for his use? Has a man no right of property in his house, or his ship, because, in building it, he availed himself of all the axes, and wheels, and saws, and planing machines, which other men had invented? Have the manufacturers of cloths no right of property in their fabrics, because, in the manufacture of them, they use all the looms, and spindles, and other machinery, which were invented and furnished to their hands by others? Has the printer no right of property in his books or newspapers, because, in producing them, he had the aid of the arts of paper making, the inventions of letters, of types, and of printing presses? Or because the public demand for books and papers, the course of events, and the progress of knowledge, suggested, pointed to, and enabled him to command capital for, the production of such articles as he manufactures?

The course of events and the progress of knowledge, science, and art—in other words, all the various kinds of knowledge that have come down to us—are mere tools, which the past has put [64] into the hands of the present, for doing the work that is now to be done. These tools, so far as they are now common property, are free to all; and each one avails himself of such as he finds best adapted to the work he has in hand; whether that work be the growing of agricultural products, the building of houses or ships, the manufacture of clothing, the printing of books, or the invention of steam engines, or electric telegraphs. And no one, of the present day, can be justly denied his right of property in the fruits of his labor, because, in producing them, he used any or all these tools which the past has supplied for the benefit of those who are now alive. The dead have no right of property in either the intellectual or material things they have left to the living; yet they only could have the right to object to the use of what once was theirs. The living all stand on the same level, in regard to their right to use these now common tools, for the production of wealth. And their individual rights, to the products of their labor, are not at all effected by their use of these tools.

SECTION VI.: Objection Sixth.

A sixth objection is, that since “the course of events, and the general progress of knowledge, science, and art, suggest, point to, contribute to, and aid the production of, certain inventions,” as mentioned in the preceding section, it is to be presumed that, if a particular invention were not produced by one mind, it soon would be by another; and that, because one man happens to be the first inventor, is no reason why he should have an exclusive and perpetual property in a device, or idea, which would have been brought forth, before a very long time, by some other mind, if it had not been done by him.

Admitting, for the sake of the argument, that B would have [65] produced a certain idea, if A had not done it before him, the objection is of no more weight, in the case of intellectual property, than in the case of material property. If A had not taken possession of a certain tract of wild land, and converted it into a farm, some one would have come after him, and done it. But that is no reason why the farm does not now belong to A.

If A had not produced certain commodities for the market—agricultural commodities, for example—the market would have been supplied by some one else. But that plainly is no reason why the commodities produced by the labor of A, should not be held to be his property.

If a man is to be denied any right of property in the fruits of his labor, merely because it is presumed that, if he had not performed the labor, some other person would, no man would be entitled to property in the fruits of his labor; for in few cases, if any, could he prove that no other person would ever have performed the labor, if he had left it undone.

The same principle, that applies to material things, in this respect, applies to ideas.

The principle goes to the destruction of all rights of property in the fruits of man’s labor, because if A, as first producer, is to be deprived of the fruits of his labor, merely for the reason that B would have produced the same things, if A had not, then B certainly, as second producer, ought to have no property in them, for the reason that, if he had not produced them, C would have done so. Admitting that B would have produced the same things that A has done, he could have no better right to them than A now has. So that the principle goes to the destruction of all rights of property in nearly or quite all material, as well as intellectual, things.

But is it at all true, or at all to be presumed, that if A had not produced a certain invention, B would have done it? It may, in a few cases, seem highly probable, though it cannot in the nature of things be certain, that particular inventions would have been made, within a short period, if they had not been made at the [66] times they were. Nevertheless, these things are, in general, matters resting wholly in vague conjecture, and not at all on proof. It may be reasonably certain that, under favorable conditions, mankind at large will progress in the arts and sciences; that many new and valuable inventions will be made by somebody. But what those inventions will be, cannot be known beforehand. It surely is not easy, even if it be possible, to determine that any given invention would have been produced in a hundred, or a thousand years, if it had not been produced by the particular individual, who actually produced it. Hundreds and thousands of years have rolled away without its being produced; and how can it be known, or even confidently asserted, that hundreds and thousands more might not have rolled away, without its being produced, had it not been for the existence of the single mind that actually brought it into existence? Who can suppose that the poems of Homer, Shakespeare, and Milton, or the orations of Demosthenes, Cicero, and Burke, would ever have seen the light, had not Homer, Shakespeare, Milton, Demosthenes, Cicero and Burke themselves existed? Certainly no one can imagine such things to have been within the range of any rational probability. Each mind produces its own work; and who can say that any other mind would have produced the same work that one mind has produced, if the latter had not preoccupied the field?

The same theory no doubt holds good to a considerable extent, (who can say it does not hold good to all extent?) in all other fields of intellectual labor, as well as in poetry and eloquence? Perhaps it will be said that some devices are so simple, and lie so on the surface of things, that they must soon have been discovered by somebody, if the actual discoverer had never existed. But simple ideas, that seemed to have lain on the surface of things, almost within the sight of every one, have been passed by unseen for ages. Who can say that they would not have continued to be passed by for ages more, but for the fortunate, ingenious, or keen-sighted discoverers, who actually first laid their eyes directly upon them? It certainly seems to be the general [67] order of nature, in regard to intellectual productions, that each individual of the human race has his peculiar work allotted to him; not that one is created to do what another has left undone.*

Who can say, or believe, that if Alexander, and Cæsar, and Napoléon had not played the parts they did in human affairs, there was another Alexander, another Cæsar, another Napoléon, standing ready to step into their places, and do their work? Who can believe that the works of Raphael and Angelo could have been performed by other hands than theirs? Who can affirm that any one but Franklin would ever have drawn the lightnings from the clouds? Yet who can say that what is true of Alexander, and Cæsar, and Napoléon, and Raphael, and Angelo, and Franklin, is not equally true of Arkwright, and Watt, and Fulton, and Morse? Surely no one.

It is no doubt both easy and truthful to say, that certain events point the way to, and prepare the way for, certain other events—to discoveries, as to all other things. But it is also no doubt equally true that the course of events, and the progress of knowledge have, through all time, pointed the way to, and prepared the way for, countless thousands of other inventions that have never been made; inventions, that have not been made, simply because the right man was not there to make them; or he had not the proper facilities, or the necessary inducements, to make them. If ten thousand times as many discoveries had been made, as have been actually made, we should have said, with equal reason, and with equal truth, that the course of events, and the progress of knowledge, had pointed the way to them, and prepared the way for them, as we now say that the course of events, and the progress of knowledge, pointed the way to, and prepared the way for, the discoveries already made; and that, if they had not been made at the time they were, they would no doubt soon have been [68] made by others? What, then, is the value of any such objection as this, to the rights of authors and inventors?

But even if a second man would have made a certain invention, if the first had not—what of it? May not the invention as well be the property of the first man, as of the second?

The first man having done the work, the second man has no need to do it; but is left free to perform some other labor, of which he will enjoy the fruits, in the same way that the first enjoys the fruits of his labor. Where, then, is the injustice?

SECTION VII.: Objection Seventh.

It is said that two men sometimes make the same invention; and that it would therefore be wrong to give the whole invention to one.

The answer to this objection is, that the fact that two men produce the same invention, is a very good reason why the invention should belong to both; but it is no reason at all why both should be deprived of it.

If two men produce the same invention, each has an equal right to it; because each has an equal right to the fruits of his labor. Neither can deny the right of the other, without denying also his own. The consequence is, that they must either use and sell the invention in competition with each other, or unite their rights, and share the invention between them. These are the only alternatives, which their relations to each other admit of. And it is for the parties themselves, and not for the government, to determine which of these alternatives they will elect. Each holds the whole invention by the same title—that of having produced it by his labor. Neither can say that the title of the other is defective, or in any way imperfect. Neither party has [69] any right, therefore, to object to the other’s using or selling the invention at discretion. And each, therefore, can lawfully and freely use and sell the invention, (and give a good title to the purchaser,) without any liability to answer to the other as an infringer. In short, the parties stand in the relation of competitors to each other; each having an equal and perfect right to use and sell the invention, in competition with, and in defiance of, the other. But as such competition would probably not be so profitable to either of the parties, as a union of their competing rights, such a union would doubtless generally be agreed upon by the parties themselves, without any interference from the government.

SECTION VIII.: Objection Eighth.

It may be urged that, however just may be the principle of the right of property in ideas, still the difficulty of determining who is the true author of an invention, or idea, after that invention or idea has become extensively known to mankind, interposes a practical obstacle to the maintenance of any individual right of property in any thing so subtle, intangible, and widely diffused, as such an invention, or idea.

This was unquestionably a very weighty and serious objection, in ruder times, when letters were unknown to the mass of the people, and when a thought was carried from mind to mind, unaccompanied by any reliable proof of the first originator. The facilities and inducements thus afforded to fraudulent claims in opposition to those of the true owner, and the difficulty of combatting such frauds, by the production of authentic and satisfactory proofs, must have made it nearly or quite impossible to maintain, in practice, the principle that a man was the owner of the thoughts he had produced, after he had once divulged them [70] to the world. And this, doubtless, is the great reason, perhaps the only reason, why the right of property in ideas was not established, in whole, or in part, thousands of years ago.

But this obstacle is now removed by the invention of records, whereby a man can have his discovery registered, before he makes it public, and thus establish his proprietorship, and make it known, both to the people, and the judicial tribunals.

SECTION IX.: Objection Ninth.

It is generally, if not universally, conceded that an inventor has a good moral claim for compensation for his invention; that he ought to be suitably, and even liberally, paid for his labor. At the same time, many, who make this concession, will say that to allow him an exclusive and perpetual property in his invention, would be transcending all reason in the way of compensation.

This view of the case, it will be seen, denies to the inventor all exclusive right of property in his invention. It asserts that the invention really belongs to the public, and not to himself. And it only advocates the morality and equity of allowing him such compensation for his time and labor as is reasonable. And it maintains that such compensation should be determined, in some measure at least, by the compensation which other men than inventors obtain for their time and labor. And this is the view on which patent laws generally are founded.

The objection to this theory is, that it strikes at all rights of property whatsoever, by denying a man’s right to the products of his labor. It asserts that government has the right, at its own discretion, to take from any man the fruits of his labor, giving him in return such compensation only, for his labor, as the government deems reasonable.

[71]

If this principle be a sound one, it should be carried out towards all other persons, as well as inventors. A man, who has converted wild land into a productive farm, should be allowed to enjoy that farm only until the government thinks he is reasonably paid for his labor. Then it should be taken from him. There is no reason why the greatest benefactors of mankind should be made the victims of an arbitrary discretion, destructive of their natural rights to the fruits of their labor, when the rule is applied to no one else. Other men, who have never added one thousandth part so much to the general stock of wealth, are allowed to amass large fortunes, without the liability of having it all taken from them, except so much as the government may chance to think will be a reasonable compensation for the labor expended in acquiring it. What right has government to make any such distinction as that?

But what is “reasonable compensation” for a man’s labor? It is what the labor is really worth, is it not? Most certainly it is. And what is any and all labor worth? It is worth just what it produces, and no more. This is the precise value of all labor. Labor that produces nothing, is worth nothing. Labor that produces much, is worth much. The labor, which it costs a man to pick up a pebble, is just worth a pebble, and no more. The labor, which it costs a man to pick up a diamond, is worth the diamond, by the same rule that the other labor was worth the pebble, and only a pebble. Each kind of labor is worth the thing it produces, because it produces that thing. There is no other way of determining the value of labor. There is no arbitrary standard of the value of labor; although when labor itself is sold in the market, (instead of the products of labor,) an arbitrary price is fixed upon it, either because the necessities of the laborer compel him to sell his labor at an arbitrary price, or because it is not known beforehand how much his labor will be worth. In such case, the purchaser of the labor takes his risk whether the labor will prove to be worth more or less than the price he pays for it. If it produce more than he pays for it, he [72] makes a profit. If it produce less, he makes a loss. But this price that he pays has nothing to do in fixing the real value of the labor. The exact value of the labor cannot be known until its products are known. Then the true value of the labor is determined and measured by the value of its products.

Labor has no value of itself. If it produced nothing, it would be worth nothing. Of necessity, therefore, every separate act of labor is worth precisely what it produces—be it little or much. A man, therefore, does not receive the full value of his labor, unless he receive the whole of its products.

Those, who talk about the justice of the government’s allowing an inventor reasonable compensation for his labor, talk as if the government had employed the inventor to labor for it for wages—the government taking the risk whether he invented any thing of value, or not. In such a case, the government would be entitled to the invention, on paying the inventor his stipulated, or reasonable, wages. But the government does not employ an inventor to invent a steamboat, or a telegraph. He invents it while laboring on his own account. If he succeed, therefore, the whole fruits of his labor are rightfully his; if he fail, he bears the loss. He never calls upon the government to pay him for his labor that was unsuccessful; and the government never yet undertook to pay for the labor of the hundreds and thousands of unfortunate men, who attempted inventions, and failed. With what force, then, can it claim to seize the fruits of their successful labor, leaving them only what it pleases to call a reasonable compensation, or reasonable wages, for their labor? If the government were to do thus towards other men generally than inventors, there would be a revolution instantly. Such a government would be universally regarded as the most audacious and monstrous of tyrannics.

If a man, while laboring for himself, and at his own risk, have produced much wealth, with little labor, it is his good fortune, or the result of his good judgment, and superior powers. No one [73] but himself has any claim upon the products of his labor; and it is the sheerest robbery to take them from him without his consent.

SECTION X.: Objection Tenth.

Another theory, advocated by some persons, is, that abstractly, and on principles of natural justice, men have the same right of property in their ideas, that they have in any other products of their labor; but that this property requires peculiar and extra ordinary protection; and that the present laws on the subject are in the nature of a compromise between the government and the inventor; the government giving extraordinary protection for a time, and the inventor, in consideration of that protection, giving up his property at the end of that time.

There is plainly no foundation for this theory. In the first place, the government, instead of giving extraordinary protection, does not give even ordinary protection, to intellectual property, during the time for which it pretends to protect it. The only protection, that can be claimed to be extraordinary, is the benefit of records. But this certainly is not extraordinary, for it is enjoyed in common with landed property universally. Besides, the expenses of these records are paid, not by the government, but by those who are to derive a benefit from them. They are therefore no boon, no privilege, no token of extraordinary favor, on the part of the government.

But even if intellectual property were allowed extraordinary protection, that would be no excuse for taking from the owners the property itself, at the end of a limited period. Merchandise in cities is allowed an extraordinary protection, in the shape of a night police. But no one ever conceived that that was any reason why the owners should not have a perpetual property in that [74] kind of wealth. Merchandise on the ocean also enjoys an extraordinary protection, in the shape of a navy to guard it against pirates and other enemies. But no one ever deemed that to be any reason for making such property free plunder, after the owners had enjoyed it for fourteen years. Yet there would be as much reason and justice in outlawing such property, after a specified time, as there are in outlawing intellectual property.

Various kinds of property, such as cotton and woollen manufactures, coal, iron, sugar, hemp, wool, breadstuffs, &c., &c., have, at different times, enjoyed not only all the ordinary protection against wrong-doers, but also an extraordinary protection against competition, by means of tariffs on imported commodities of like nature; whereby their prices were raised ten, twenty, thirty, and fifty per cent. above what would otherwise have been the regular market rates. The government has thus made it necessary that these advanced prices should be paid, by the people at large, to the holders of these kinds of property. Yet nobody ever proposed that, as a consideration for this extraordinary and unequal protection, the property itself, or a dollar of the capital invested in the production of it, should ever be confiscated to the government or people, at the end of fourteen years, or any other specified time. American merchant ships, in addition to being protected by an armed navy against pirates and other enemies, have been protected against the competition of foreign vessels, by laws designed to give them the monopoly of the coasting trade, and some other branches of navigation. Yet no one ever proposed that, as an offset for this extraordinary protection, all these ships should become public property at the end of fourteen years. Combustible property of all kinds is allowed an extraordinary protection, in the shape of fire companies maintained at the public expense. Yet no one ever suggested that as a consideration for this extraordinary protection, the property should be forfeited at a time fixed by law. All the property, that floats on the ocean, is allowed an extraordinary protection against shipwreck, in the shape of lighthouses and buoys, established [75] and maintained at the public expense, also of coast surveys and charts made at the public charge. But no one ever claimed that these were any reasons why the property itself should ever be forfeited by its owners. Yet intellectual property, which never enjoyed, for a moment, the slightest extraordinary protection whatsoever, is confiscated to the public, after being enjoyed for only a brief period by its honest owners and producers.

But, in the second place, intellectual property is not allowed even ordinary protection, during the time for which the government pretends to protect it. It is not allowed, like other property, the protection of criminal laws, under which the government not only pays the expense of prosecutions, but punishes violators by imprisonment. All property, except intellectual, is allowed the benefit of these criminal laws. But intellectual property is permitted the protection only of civil suits, in which the parties pay their own expenses, and in which, if judgment be obtained, it must often be against irresponsible men, who can make no satisfaction for their wrongs. In this case, the injured party has expended his money, without either obtaining redress against the individual wrong-doer, or procuring the infliction of any punishment to operate as a warning to others.

Intellectual property neither enjoys, nor requires, extraordinary protection. It asks simply to be placed on the same footing with other property, and to be allowed the benefit of any and all those ordinary contrivances for the protection of property, which are adapted to its needs, and calculated to give it security.

SECTION XI.: Objection Eleventh.

It is said that ideas are unlike corporeal commodities in this respect, namely, that a corporeal commodity cannot be completely and fully possessed and used by two persons at once, without [76] collision between them; and that it must therefore necessarily be recognized as the property of one only, in order that it may be possessed and used in peace; but that an idea may be completely and fully possessed and used by many persons at once, without collision with each other; and therefore no one should be allowed to monopolize it.

This objection lays wholly out of consideration the fact, that the idea has been produced by one man’s labor, and not by the labor of all men; as if that were a fact of no legal consequence; whereas it is of decisive consequence; else there can be no exclusive right of property, in any of the productions or acquisitions of human labor. If one commodity, the product of one man’s labor, can be made free to all mankind, without his consent, then, by the same rule, every other commodity, the product of individual labor, may be made free to all mankind, without the consent of the producers. And this is equivalent to a denial of all individual property whatsoever, in commodities produced or acquired by human labor.

In truth, the objection plainly denies that any exclusive rights of property whatsoever, can be acquired by labor or production; because it says that a man, who produces an idea—(and the same principle would apply equally well to any other commodity)—has no better right of property in it, or of dominion over it, than any and all the rest of mankind. That is, that he has no rights in it at all, by virtue of having produced it; but has only equal rights in it with men who did not produce it. This certainly is equivalent to denying, that any exclusive right of property, can be acquired by labor or production. It is equivalent to asserting, that all our rights, to the use of commodities, depend simply upon the fact that we are men; because it asserts that all men have equal rights to use a particular commodity, no matter who may have been the producer.

This doctrine, therefore, goes fully to the extent of denying all rights of property whatsoever, even in material things (exterior to one’s person); because all rights of property in such [77] material things, have their origin in labor; (that is, either in the labor of production, or the labor of taking possession of the products of nature;) not necessarily in the labor of the present possessor; but either in his labor, or the labor of some one from whom he has, mediately or immediately, derived it, by gift, purchase, or inheritance.

The doctrine of the objection, therefore, by denying that any right of property can originate in labor or production, virtually denies all rights of property whatsoever, not merely in ideas, but in all material things, exterior to one’s body; because if no rights of property in such things can be derived from labor or production, there can be no rights of property in them at all.

The ground, on which a man is entitled to the products and acquisitions of his labor, is, that otherwise he would lose the benefit of his own labor. He is therefore entitled to hold these products and acquisitions, in order to hold the labor, or the benefit of the labor, he has expended in producing and acquiring them.

The right of property, therefore, originates in the natural right of every man to the benefit of his own labor. If this principle be a sound one, it necessarily follows that every man has a natural right to all the productions and acquisitions of his own labor, be they intellectual or material. If the principle be not a sound one, then it follows, necessarily, that there are no rights of property at all in the productions or acquisitions of human labor.

The principle of the objection, therefore, goes fully and plainly to the destruction of all rights of property whatsoever, in the productions or acquisitions of human labor.

The right of property, then, being destroyed, what principle does the objection offer, as a substitute, by which to regulate the conduct of men, in their possession and use of all those commodities, which are now subjects of property? It substitutes only this, viz.: that men must not come in collision with each other, in the actual possession and use of things.

Now, since this actual possession and use of things, can be [78] exercised, only by men’s bringing their bodies in immediate contact with the things to be possessed or used, it follows that the principle laid down, of men’s avoiding collision in the possession and use of things, amounts to but this, viz.: that men’s bodies are sacred, and must not be jostled; but nothing else is sacred. In other words, men own their bodies; but they own nothing else. Every thing else belongs, of right, as much to one person as to another. And the only way, in which one man can possess or use any thing, in preference to other men, is by keeping his hands constantly upon it, or otherwise interposing his body between it and other men. These are the only grounds, on which he can hold any thing. If he take his hands off a commodity, and also withdraw his body from it, so as to interpose no obstacle to the commodity’s being taken possession of by others, they have a right to take possession of it, and hold it against him, by the same process, by which he had before held it against them. This is the legitimate and necessary result of the doctrine of the objection.

On this principle a man has a right to take possession of, and freely use, any thing and every thing he sees and desires, which other men may have produced by their labor—provided he can do it without coming in collision with, or committing any violence upon, the persons of other men.

This is the principle, and the only principle, which the objection offers, as a rule for the government of the conduct of mankind towards each other, in the possession and use of material commodities. And it seriously does offer this principle, as a substitute for the right of individual and exclusive property, in the products and acquisitions of individual labor. The principle, thus offered, is really communism, and nothing else.

If this principle be a sound one, in regard to material commodities, it is undoubtedly equally sound in relation to ideas. But if it be preposterous and monstrous, in reference to material commodities, it is equally preposterous and monstrous in relation to ideas; for, if applied to ideas, it as effectually denies the right [79] of exclusive property in the products of one’s labor, as it would if applied to material commodities.

It is plain that the principle of the objection would apply, just as strongly, against any right of exclusive property in corporeal commodities, as it does against a right of exclusive property in ideas; because, 1st, many corporeal commodities, as roads, canals, railroad cars, bathing places, churches, theatres, &c., can be used by many persons at once, without collision with each other; and, 2d, all those commodities—as axes and hammers, for example—which can be used only by one person at a time without collision, may nevertheless be used by different persons at different times without collision. Now, if it be a true principle, that labor and production give no exclusive right of property, and that every commodity, by whomsoever produced, should, without the consent of the producer, be made to serve as many persons as it can, without bringing them in collision with each other, that principle as clearly requires that a hammer should be free to different persons at different times, and that a road, or canal should be free to as many persons at once, as can use it without collision, as it does that an idea should be free to as many persons at once as choose to use it.

On the other hand, if it be acknowledged that a man have an exclusive right of property in the products of his labor, because they are the products of his labor, it clearly makes no difference to this right, whether the commodity he has produced be, in its nature, capable of being possessed and used by a thousand persons at once, or only by one at a time. That is a wholly immaterial matter, so far as his right of property is concerned; because his right of property is derived from his labor in producing the commodity; and not from the nature of the commodity when produced. If there could be any difference in the two cases, his right would be stronger, in the case of a commodity, that could be used by a thousand persons at once, than in the case of a commodity, that could be used only by one person at a time; because a man is entitled to be rewarded for his labor, according to the [80] intrinsic value of its products; and, other things being equal, a commodity, that can be used by many persons at once, is intrinsically more valuable, than a commodity, that can be used only by one person at a time.

Again. The principle of the objection is, that all things should be free to all men, so far as they can be, without men’s coming in collision with each other, in the actual possession and use of them; and, consequently, that no one person can have any rightful control over a thing, any longer than he retains it in his actual possession; that he has no right to forbid others to possess and use it, whenever they can do so without personal collision with himself; and that he has no right to demand any equivalent for such possession and use of it by others. From these propositions it would seem to follow further, that for a man to withhold the possession or use of a thing from others, for the purpose of inducing them, or making it necessary for them, to buy it, or rent it, and pay him an equivalent, is an infringement upon their rights.

The principle of property is directly the reverse of this. The principle of property is, that the owner of a thing has absolute dominion over it, whether he have it in actual possession or not, and whether he himself wish to use it or not; that no one has a right to take possession of it, or use it, without his consent; and that he has a perfect right to withhold both the possession and use of it from others, from no other motive than to induce them, or make it necessary for them, to buy it, or rent it, and pay him an equivalent for it, or for its use.

Now it is plain that the question, whether a thing be susceptible of being used by one only, or by more persons, at once, without collision, has nothing to do with the principle of property; nor with the owner’s right of dominion over it; nor with his right to forbid others to take possession of it, or use it. If he have a right to forbid one man to take possession of, or use, a certain commodity, he has the same right to forbid a thousand, or the whole world. And if he have a right to forbid a man to take [81] possession of, or use, a commodity, that is susceptible of being possessed and used by one person only at a time, he has the same right to forbid him to take possession of, or use, a commodity, that is susceptible of being possessed and used by a hundred, or a thousand, persons at once. The fact that men would, or would not, come in collision with each other, in their attempts to possess and use a commodity, if he were to surrender his dominion over it, and leave all equally free to possess and use it, is clearly a matter which does not at all concern his present right of dominion over it; nor in any way affect his present right to forbid any and all of them to possess or use it.

It is, therefore, wholly impossible that the circumstance, that one commodity—as a hammer, for example—is in its nature susceptible of being possessed and used by but one person at a time without collision, and that another commodity—as a road, a canal, a railroad car, a ship, a bathing place, a church, a theatre, or an idea—is susceptible of being possessed (i. e. occupied), and used by many persons at once without collision, can affect a man’s right to have complete dominion over the fruits of his labor. A man’s exclusive right of property in—or, in other words, his right of absolute dominion over—any one of these various commodities, depends entirely upon the fact, that such commodity was either a product or acquisition of his own labor, (or of the labor of some one, from whom, either mediately, or immediately, he has derived it, by purchase, gift, or inheritance;) and not at all upon the fact, that such commodity can, or cannot, be possessed and used by more than one person at a time, without collision.

The right of property, or dominion, does not depend, as the objection supposes, upon either the political or moral necessity of men’s avoiding collision with each other, in the possession and use of commodities; for if it did, it would be lawful, as has already been shown, for men to seize and use all manner of corporeal commodities, whenever it could be done without coming in personal collision with the persons of other men. But the right [82] of property, or dominion, depends upon the necessity and right of each man’s providing for his own subsistence and happiness; and upon the consequent necessity and right of every man’s exercising exclusive and absolute dominion over the fruits of his labor.

Now, this right of exercising exclusive and absolute dominion over the fruits of one’s labor, is not, as the objection assumes, a mere right of possessing and using them, in peace, and without collision with other men: but it includes also the right of making them subservient to his happiness in every other possible way, (not inconsistent with the equal right of other men, to a like dominion over whatever is theirs,) as well as by possessing and using them.

Now a man may make a commodity subservient to his welfare, in a variety of ways, other than that of himself possessing and using it—provided always his absolute dominion over it be first established. For example, if his absolute dominion over it be first established, so that he can forbid other men to use it, except with his consent, he can then sell it, or rent it, to those who wish to use it, and thus obtain from them, in exchange, other commodities which he desires; or he can confer it, or its use, as a favor, upon some one whose happiness he wishes to promote. But unless he be first secured in his absolute dominion over it, so as to be able to forbid other men using it, except with his consent, he is deprived of all power to make it subservient to his happiness, by selling it, or renting it, in exchange for other commodities; because, if other men can use it without his consent, they will have no motive to buy it, or rent it, paying him any thing valuable in exchange. He cannot even give it, as a favor, to any one, because it is no favor, on his part to give to another a commodity, which that other already has without his consent.

The right of property, therefore, is a right of absolute dominion over a commodity, whether the owner wish to retain it in his own actual possession and use, or not. It is a right to forbid others to use it, without his consent. If it were not so, men could never sell, rent, or give away those commodities, which [83] they do not themselves wish to keep or use; but would lose their right of property in them—that is, their right of dominion over them—the moment they suspended their personal possession and use of them.

It is because a man has this right of absolute dominion over the fruits of his labor, and can forbid other men to use them without his consent, whether he himself retain his actual possession and use of them or not, that nearly all men are engaged in the production of commodities, which they themselves have no use for, and cannot retain any actual possession of, and which they produce solely for purposes of sale, or rent. In fact, there is no article of corporeal property whatever, exterior to one’s person, which owners are in the habit of keeping in such actual and constant possession or use, as would be necessary in order to secure it to themselves, if the right of property, originally derived from labor, did not remain in the absence of possession.

But further. The question, whether a particular commodity can be used by two or more persons at once, without collision with each other, is obviously wholly immaterial to that right of absolute dominion, which the producer of the commodity has over it by virtue of his having produced it; and to his consequent right to forbid any and all other men to use it, without his consent.

A man’s right of property in the fruits of his labor, is an absolute right of controlling them—so far as the nature of things will admit of it—so as to make them subservient to his welfare in every possible way that he can do it, without obstructing other men in the equally free and absolute control of every thing that is theirs. Now, the nature of things offers no more obstacles, to a man’s exclusive proprietorship and control of a commodity, which is, in its nature, capable of being possessed and used by many at once without collision, than it does to his exclusive proprietorship and control of a commodity, which is, in its nature, incapable of being possessed and used by more than one at a time without collision. His right of property, therefore, is [84] just as good, in the case of one commodity, as in the case of the other.

The absurdity of any other doctrine than this is so nearly apparent, as hardly to deserve to be seriously reasoned against. One man produces a commodity—a hammer, for example—which can be used but by one person at a time without collision; and this commodity is his exclusively, because he produced it by his labor. Another man produces another commodity—as a road, a canal, or an idea, for example—which can be used by thousands at once without collision; and this commodity, forsooth, is not his exclusively, although he produced it solely by his own labor! Of what possible consequence is this difference, in the nature of the two commodities, that it should affect the producer’s exclusive right of property in either one or the other? Manifestly it is not of the least conceivable importance.

As a matter of abstract natural justice, there is no difference whatever, in a man’s demanding and receiving pay for a commodity, or the use of a commodity, which can be used by thousands at once without collision, and his demanding and receiving pay for a commodity, or the use of a commodity, which can be used by but one person a time. In the first case, he as much gives an equivalent for what he receives, as he does in the latter; an equivalent too, that is as purely a product of labor, as is the commodity he receives in exchange.

As a matter of abstract natural justice too, a man is as much entitled to be paid for his labor in producing commodities, that can be used by many persons at once without collision, as he is to be paid for producing commodities, that can be used by but one person at a time. For example, one man produces an idea, which is worth, for use, a dollar to each one of a thousand different men. Another man produces a thousand axes, worth a dollar each for the use of a thousand different men. Is there any difference in the intrinsic merit or value of the labor of these two producers? Or is there any difference, in their abstract right to demand pay of those who use the products of their labor? Is [85] not the producer of the idea as honestly entitled to demand a thousand dollars for the use of his single idea, as the other is to demand a thousand dollars for his thousand axes? The producer of the idea supplies a thousand different men with as valuable a tool to work with, as does the producer of the axes. Why, then, is he not entitled to demand the same price for his ideas, as the other does for his axes? Does the fact that, in the one case, a thousand different men use the same commodity, (the idea,) and that, in the other, a thousand different men use a thousand different commodities, (axes,) all of one kind, make the least difference in the merits of the respective producers? Other things being equal, is not one single commodity, that can be used by a thousand men at once without collision, just as valuable, for all practical purposes, as a thousand other commodities, that can each be used only by one person at a time? Are not a thousand men as effectually supplied with the commodity they want, in the first case, as in the latter? Certainly they are. Why, then, should they not pay as much for it? And why should not the producer receive as much in the first case, as in the last? No reason whatever, in equity, can be assigned.

If there be no difference in the justice of these two cases, is there any way, in which the producer of the idea can get his thousand dollars for it, other than that, by which the producer of the axes gets his thousand dollars for them, to wit, by first securing to him his absolute dominion over it, or absolute property in it, and thus enabling him to forbid others to use it except on the condition of their paying him his price for it? If there be no other way, by which he can get pay for his idea, then he is as well entitled to an absolute property in it, and dominion over it, as the producer of the axes is entitled to an absolute property in, or dominion over, them.

Still further. A thousand separate individuals, can as well afford to pay a thousand dollars, (one dollar each,) for the use of a single commodity, that can be used by them all at once without collision, as they can to pay a thousand dollars, (one [86] dollar each,) for the use of a thousand different commodities, each of which can be used only by one person at a time. A man can just as well afford to pay a dollar for an idea, that is worth a dollar to him, for use, though it be used also by others, as he can to pay a dollar for an axe, that is worth but a dollar to him for use, though it be not used by others. Its being used by others, or not, makes no difference at all in his capacity to pay for whatever value it is really of to himself.

A thousand different men can also as well afford to pay a dollar each, for the use of a commodity, which they can all use at once without collision, as they can to pay a dollar each for the use of a single commodity, which can be used only by one person at a time, and which can therefore be used by them all, only by their using it singly, successively, and at different times. For example. A thousand men can as well afford to pay a thousand dollars, (one dollar each,) for the use of a vessel, which will carry them all at once, as they can to pay a thousand dollars, (one dollar each,) for the use of a boat so small as to carry but one person at a time, and which must therefore make a thousand different trips to carry them all. How absurd it would be to say that the owner of the large boat had no right to charge a dollar each for his thousand passengers, merely because his vessel was so large that it could carry them all at once, without collision with each other, or with himself; and yet that the owner of the small boat had a right to charge a dollar each, to a thousand successive passengers, merely because his boat was so small that it could carry but one at a time.

The same principle clearly applies to an idea. Because it can be used by thousands and millions at a time, without collision, it is none the less the exclusive-property of the producer; and he has none the less right to charge pay for the use of it, than if it could be used by but one person at a time.

There is, therefore, no ground whatever, of justice or reason, on which the producer of the idea can be denied the right to demand pay for it, according to its market value, any more than [87] the producer of any other commodity can be denied the right to demand pay for it, according to its market value. And the market value of every commodity is that price, which men will pay for it, rather than not have it, when it is forbidden to them by one who has an absolute property in it, and dominion over it.

The objection, now under consideration, is based solely upon the absurd idea, that the producer of a commodity has no right of property in it, nor of dominion over it, beyond the simple right of using it himself without molestation; that he has therefore no right to forbid others to use it, whenever they can get possession of and use it, without collision with himself; that he must depend solely upon his own use of it to get compensated for his labor in producing it; that he can never be entitled to demand or receive any compensation whatever from others, for the use of it, or for his labor in producing it, however much they may use it, or enrich themselves by so doing; and that he therefore has no right to withhold its use from others, with any view to induce or compel them to buy it, or rent it, or make him any compensation for the labor it cost him to produce it. In short, the principle of the objection is, that when a man has produced a commodity by his own sole labor, he has no right of dominion over it whatever, except the naked right to use it; and that all other men have a perfect right to use it, without his consent, and without rendering him any compensation, whenever he is not using it, or whenever the nature of the thing is such as to enable both-him and them to use it at the same time, without collision.

The objection clearly goes to this extent, because the whole principle of it consists in this single idea, viz.: that men must avoid collision with each other in the possession and use of commodities.

This principle would not allow the producer so much even as a preference over other men, in the possession and use of a commodity, unless he preserved his first actual possession unbroken. To illustrate. If, when he was not using it, he should let go his [88] hold of it, and thus suffer another to get possession of it, he could not reclaim it, even when he should want it for actual use. To allow him thus to demand it of another, for actual use, on the ground that he was the producer of it, would be acknowledging that labor and production did give him at least some rights to it over other men. And if it be once conceded, that labor and production do give him any rights to it, over other men, then it must be conceded, that they give him all rights to it, over other men; for if he have any rights to it, over other men, then no limit can be fixed to his rights, and they are of necessity absolute. And these absolute rights to it, as against all other men, are what constitute the right of exclusive property and dominion. So that there is no middle ground between the principle, that labor and production give the producer no rights at all, over other men, in the commodity he produces; and the principle, that they give him absolute rights over all other men, to wit, the right of exclusive property or dominion. There is, therefore, no middle ground between absolute communism, on the one hand, which holds that a man has a right to lay his hands on any thing, which has no other man’s hands upon it, no matter who may have been the producer; and the principle of individual property, on the other hand, which says that each man has an absolute dominion, as against all other men, over the products and acquisitions of his own labor, whether he retain them in his actual possession, or not.

Finally. The objection we have now been considering, seems to have had its origin in some loose notion or other, that the works of man should be, like certain works of nature—as the ocean, the atmosphere, and the light, for example—free to be used by all, so far as they can be used by all without collision.

There is no analogy between the two cases. The ocean, the atmosphere, and the light, so far as they are free to all mankind, are free simply because the author of nature, their maker and owner, is not, like man, dependent upon the products of his labor for his subsistence and happiness; he therefore offers them freely to all mankind; neither asking nor needing any compensation for [89] the use of them, nor for his labor in creating them. But if the ocean, the atmosphere, and the light had been the productions of men—of beings dependent upon their labor for the means of subsistence and happiness—the producers would have had absolute dominion over them, to make them subservient to their happiness; and would have had a right to forbid other men either to use them at all, or use them only on the condition of paying for the use of them. And it would have been no answer to this argument, to say, that mankind at large could use these commodities, without coming in collision with the owners; that there were enough for all; and that therefore they should be free to all. The answer to such an argument would be, that those, who had created these commodities, had the natural right to supreme dominion over them, as products of their labor; that they had a right to make them subservient to their own happiness in every possible way, not inconsistent with the equal right of other men, to a like dominion over whatever was theirs; that they could get no adequate compensation for their labor in creating them, unless they could control them, forbid other men to use them, and thus induce, or make it necessary for, other men to pay for the use of them; that they had created them principally, if not solely, for the purpose of selling or renting them to others, and not merely for their own use; and that to allow others to use them freely, and against the will of the owners, on the simple condition of avoiding personal collision with them, would be virtually robbing the owners of their property, and depriving them of the benefits of their labor, and of their right to get paid for it, by demanding pay of all who used its products for their own benefit. This would have been the legal answer; and it would have been all-sufficient to justify the owners of these commodities, in forbidding other men to use them, except with their consent, and on paying such toll or rent as they saw fit to demand.

The principle is the same in the case of an idea. An idea, produced by one man, is enough for the use of all mankind (for the purposes for which it is to be used). It is as sufficient for [90] the actual use of all mankind, as for the actual use of the producer. It may be used by all mankind at once, without collision with each other. But all that is no argument against the right of the producer to absolute dominion over an idea, which he has produced by his own labor; nor, consequently, is it any argument against his right to forbid any and all other men to use that idea, except on the condition of first obtaining his consent, by paying him such price for the use of it as he demands.

But for this principle, the builders of roads and canals, which may be passed over by thousands of persons at once, without collision, could maintain no control over them, nor get any pay for their labor in constructing them, otherwise than by simply passing over them themselves. Every other person would be free to pass over them, without the consent of the owners, and without paying any equivalent for the use of them, provided only they did not come in personal collision with the owners, or each other.

Do those, who say that an idea should be free to all who can use it, without collision with the producer, say that the builders of roads and canals have no rights of property in them, nor any right of dominion over them, except the simple right of themselves passing over them unmolested? That they have no right to forbid others to pass over them, without first purchasing their (the owners’) consent, by the payment of toll, or otherwise? No one, who acknowledges the right of property at all, will say this. Yet, to be consistent, he should say it.

But the analogy, which the objector would draw, between the works of nature and the works of man, in order to prove that the latter should be as free to all mankind as the former, is defective, not only in disregarding the essential difference between the works of man and the works of nature, to wit, that the former are produced by a being who labors for himself, and not for others; and who needs the fruits of his labor as a means of subsistence and happiness; while the latter are produced by a Being, who neither needs nor asks any compensation for his labor; but it is defective in still another particular, to wit, that it disregards [91] the fact, that the works of nature themselves are no longer free to all mankind, after they have once been taken possession of by an individual. It is not necessary that he should retain his actual possession of them, in order to retain his right of property in them, and his right of dominion over them; but it is sufficient that he has once taken possession of them. They are then forever his against all the world, unless he consent to part, not merely with his possession, but with his right of property, or dominion, also. They are his, on the principle, and for the reason, that otherwise he would lose the labor he had expended in taking possession of them. Even this labor, however slight it may be, in proportion to the value of the commodity, is sufficient to give him an absolute title to the commodity, against all the world. And he may then part with his possession of it at pleasure, without at all impairing his right of dominion over it.

If, then, a man’s labor, in simply taking possession of those works of nature, which no man had produced, and which were therefore free to all mankind, be sufficient to give him such an absolute dominion over them, against all the world; who can pretend that his labor, in actually creating commodities—as ideas, for example—which before had no existence, does not give him at least an equal, if not a superior, right to an absolute dominion over them?

SECTION XII.: Objection Twelfth.

It is said that a man, by giving his ideas to others, does not thereby part with them himself, nor lose the use of them, as in the case of material property; that he only adds to other men’s wealth, without diminishing his own; that his giving knowledge to other men is only lighting their candles by his, thereby giving [92] them the benefit of light, without any loss of light to himself; and that therefore he should not be allowed any exclusive property in his ideas, nor any right to demand a price for that, which it is no loss to him to give to others.

This objection is really the same as the next preceding one; and is only stated in a different form. The answers given to that objection, will apply with equal force to this.

The fallacy of both objections consist, primarily, in this—that they deny the fundamental principle, on which all rights of property are founded, namely, that labor and production give, to the laborer and producer, a right of exclusive property in, and of exclusive and absolute dominion over, the acquisitions and products of his labor.

The fallacy of both objections consists, secondarily, in this—that they deny to the laborer the right and power of obtaining any compensation for his labor, other than such as he may chance to obtain, from his own personal possession and use of the commodities, which he produces or acquires by his labor. They assert the right of all other men to use those commodities, without his consent, and without making him any compensation—provided only that they can do it without coming in personal collision with him. They thus deny that he has any right to forbid other men to use the commodities he has produced, or to demand pay of them for such use. They thus virtually deny his right to sell or rent the products of his labor, or to obtain in exchange for them such other commodities as he desires. They assert that, after a man has himself incurred the whole labor and expense of producing a commodity—a commodity that is capable of accommodating others, as well as himself; and that will be of as much, perhaps more, value, for use, to others, than to himself—he is bound to give them as free use of it, as he has himself, without requiring them to bear any part of the burden, or compensate him for any portion of the labor and expense, incurred by him in producing it. They thus virtually assert that labor, once performed, is no longer entitled to be rewarded, however [93] beneficial it may be to others than the laborer; that commodities, once produced, are no longer entitled to be paid for, by those who use them, (other than the producers,) however valuable they may really be to them; that a man, therefore, has no such right of property in, nor of control over, the products of his labor, as will enable him to forbid other men to use them, or to demand pay of other men, for them, or for the use of them; that all men, consequently, have a perfect right to seize, and appropriate to their own use, the products of each other’s labor, without the consent of the producers, and without making any compensation, provided only that they do it without coming in personal collision with the producers; that if a man have produced enough of any particular commodity, (as wheat, for example,) to supply the world, he can rightfully control only so much of it, as he needs for his own consumption, and can maintain his actual possession of; that he can withhold the surplus from no one, with a view to getting an equivalent for it; that every man’s surplus, of any particular commodity, is not his property, to be exchanged for the surplus commodities of other men, by voluntary contract, but is rightfully free to be seized, by any one, to the extent of his particular needs for his own consumption; consequently that the exchanges, which take place among men, of their respective surpluses of the different commodities they severally produce, all proceed upon false notions of men’s separate rights of property in the products of their separate labor, and upon a false denial of the right of all men to participate equally with each man in the products of his particular labor; that men have no right to produce any thing for sale, or rent, but only to consume; and that if any one man be so foolish as to produce more, of any specific commodity, than he himself can use—as for example, more food than he himself can eat, more clothes than he himself can wear, more houses than he himself can live in, more books than he himself can read, and so on to the end of the catalogue—such folly is his own, committed with his eyes open, and he has no right to complain if all such surpluses be taken from him, against [94] his will, and without compensation, by those who can consume them; that it is not the labor of producing commodities, but the will and power to consume them, that gives the right of property in, and dominion over, them; that the right of property, therefore, depends, not upon production, but upon men’s appetites, desires, wants, and capacities for consumption; and consequently that all men have equal rights to every thing they desire for consumption, whoever may have been its producer—provided only they can seize upon it without committing an actual trespass upon the body of such producer.

This is clearly the true meaning of the objections; because the same principle would apply as well to a surplus of food, clothing, or any other commodity, as to a surplus of ideas, or—what is the same thing—to the surplus capacity of a single idea, beyond the personal use of the producer—by which I mean the capacity of a single idea to be used by other persons simultaneously with the producer, without collision with him. The capacity of a single idea to supply a large number of persons at once without collision, is, in principle, precisely like the capacity of a large quantity of food to supply a large number of persons at once, without collision. In the case of the food, as in the case of the idea, there is more than one can use, and is enough for all; and that is the reason given, why the idea should not be monopolized by the producer, but be made free to all who can use it advantageously for themselves. If this argument be good, in the case of the idea, it is equally good in the case of the food; for there is more of that than the producer can consume, and therefore the surplus should be free to others. The argument is the same, in one case as in the other; and if it be good in one case, it is good also in the other.

The capacity of an idea to be used by many persons at once, is also the same, in principle, as the capacity of a road, a canal, a steamboat, a theatre, or a church, to be used by many persons at once. And the producer or proprietor of the idea, has as clear a right to demand pay from all who use his idea, simultaneously [95] with himself and with each other, as the producer or proprietor of a road, a canal, a steamboat, a theatre, or a church, has, to demand pay of all who use one of those commodities, simultaneously with himself and with each other. How absurd it would be to deny the right of the proprietors of these last named commodities, to demand pay of the thousand users of them, on the grounds that they all used them simultaneously! that there was room for all! that the users did not come in collision with each other! that the commodities were susceptible of being used by a thousand or more at a time! and that the use of them, by others, did not prevent the proprietors from using them also at the same time!

Is a passage on a steamboat of no value to a man, if there be other men on board? Is it not just as legitimate a subject for compensation, when he enjoys it simultaneously with others, as when he enjoys it alone? Are not the performances in a theatre, a church, or a concert room, just as legitimate subjects for compensation, by each person who enjoys them, though they be enjoyed simultaneously by a thousand others beside himself, as they would be if enjoyed by himself alone? Certainly they are. And on the same principle, the use of an idea, which may be used by the whole world at once, without collision with each other, is just as legitimate a subject for compensation to the producer, as though the idea were capable of being used by but one person at a time.

But further. Why is it claimed that a man is bound, in the case of an idea, any more than in any other case, to give a product of his labor to others, without requiring them either to compensate him for his labor in producing it, or pay him any equivalent for its value to them? He has produced, at his own cost, a commodity, which can be used by others, as well as by himself; and the use of which, by others, will bring as much wealth to them, as his own use of it will bring to himself. Why has he no right, in this case, as in all others, to say to other men, you shall not use, for your profit, a commodity produced by my labor, [96] unless you will pay me my price for it, or—what is the same thing—for my labor in producing it? Can any rational answer be given to such a question as that? What claim have they upon a product of his labor, that they should seize it without paying for it? Is it theirs? If so, by what right, when they did not produce it? and have never bought it? and the producer has never freely given it to them? Self-evidently it can be theirs by no right whatever.

On the principle of these objections, Fulton could get no compensation for his labor and expense, in inventing the steamengine, other than such as he might derive from actually operating one of his own engines, in competition with all other persons, who might choose also to operate them. If he did not choose himself to operate an engine for a living, the world would get the whole benefit of his invention for nothing, and he go wholly unrewarded for his labor in producing it. On the same principle, Morse could get no pay for the labor and expense incurred by him in inventing the telegraph, other than such as he could obtain by himself operating a telegraph, in competition with all other persons who should choose to do the like. If he did not choose to operate a telegraph for a living, or could not make a living by so doing, the world would get the whole benefit of his invention for nothing, and he go wholly unrewarded for his labor in producing it. On the same principle, a man, who should build, at his own cost, a road, or a canal, would have no right to forbid others to pass over it, nor to demand pay of them for passing over it; and could consequently get no pay for his labor in constructing it, other than such as he could obtain by simply passing over it himself. If he did not wish to pass over it, he would wholly lose his labor in constructing it; and the world would get the whole benefit of it for nothing. On the same principle too, if a man should build and run, at his own charge, a steamboat, large enough to carry a thousand passengers beside himself, he could neither forbid the thousand to come on board, nor demand pay of them for their passage. He could get no pay [97] for his outlay, in building and running the boat, otherwise than by simply taking a passage on board of it himself. If this should not be an adequate compensation, he would have to submit to the loss, while the other thousand passengers would enjoy a free passage, on his boat, at his cost, and without his consent, simply because the boat was large enough to carry him and them too, and because their passage on it did not prevent him from taking passage on it also, simultaneously with themselves!

But it is said that giving knowledge to a man, is simply lighting his candle by ours; whereby we give him the benefit of light, without any loss of light to ourselves. And because we are not in the habit of demanding pay, for so momentary a labor, or so trivial a service, as that of simply lighting a man’s candle, it is inferred that we have no right to demand pay of a man, for our intellectual light, to be used as an instrumentality in labor, though it be such, that he will derive great pecuniary profit from it.

Admitting, for the sake of the argument, that the cases are analogous, the illustration wholly fails to prove what is designed to be proved by it; because, legally speaking, we have as perfect a right to the absolute control of our candles, as of any other property whatever, and as perfect a right to refuse to light another man’s candle, as to refuse to feed or clothe his body. We have also as perfect a right to forbid him to light his candle by ours, or in any way to use our light, as we have to forbid him to use our horse, or our house. And the only reason we do not, in practice, demand a price for lighting a man’s candle, is, that the lighting of a single candle is so slight a labor, and is so easily done by any body, and every body, that it will command no price in the market; since every man would sooner light his own candle, than pay even the smallest sum to another for doing it. But whenever the number of candles to be lighted is so large, as to enable the service to command a price in the market, men as habitually demand pay for lighting candles, as for any other service of the same market value. For example, those who light [98] the lamps, in the streets of cities, in churches, theatres, and other large buildings, as uniformly demand pay for so doing, as for any other service done by one man for another. And no lawyer was ever yet astute enough to discover that such lamplighters were entitled to no pay, either for the reason that they parted with none of their own light, or for the reason that they enjoyed, in common with others, the light given forth by the candles they lighted.

We do not now demand pay for lighting a single candle, simply because the service is too trivial to command a price worth demanding. But if the production of a light, in the first instance, were—like the invention of a valuable idea—a work of great labor and difficulty, such as few persons could accomplish, and those few only by a great expenditure of money, time, and study, the producers of a light would then demand pay for lighting even a single candle by it, the same as they now do for the use of an idea by a single individual. And it would be no argument against their right to do so, to say, that they part with no light themselves; that they have as much light left as they had before, or as they can use in their own business, &c., &c. The answer would be, that the light was the product of their labor, and as such was rightfully their exclusive property, and subject to their exclusive control; that therefore no one had a right to use it without their consent; that they had as good right to produce a light, with a view to sell it to others, or to light other men’s candles by it for pay, as to produce it for their own use in labor; that if they were to give the benefits of their light to others gratuitously, or if others could avail themselves of it, without making compensation, the producers would get no adequate compensation for the labor of producing it; that the light was valuable to others, as well as to the producers, and therefore others, if they wished to use the light, could afford, and should be required, to bear a part of the cost of producing it; and that if they refused to bear any part of the cost of the light, they ought not to participate in the benefits of it.

[99]

But the case of lighting another man’s candle by ours, is not strictly analogous to the case of our furnishing him a valuable idea, for his permanent use and profit. There is indeed a sort of analogy, between giving a man light for his eyes, and light for his mind; especially if he use both kinds of light in his labor. But the important difference between lighting a candle, and furnishing an idea, is this. When we simply light a man’s candle for him, we do not supply him, at our own cost, with a permanent light for use. We only ignite certain combustible materials of his own; and from them alone he derives the permanent light, which he uses in labor. It is therefore only from the combustion of his own property, that he obtains that permanent light, which alone will suffice for his uses. All the service, therefore, which we render him, is the exceedingly trivial one of simply igniting those materials by a momentary contact with our flame. We supply none of the materials themselves, from the combustion of which his permanent and useful light is derived. But in the case of the idea, we do furnish him with the permanent light itself, by the aid of which alone he performs his labor. We do not, as in the other case, simply ignite his combustible materials. We furnish the permanent light, and the whole light, at our own sole cost.

Now the simple ignition of his combustible materials, as in the case of the candle, is too trivial a service to be worth demanding pay for it; and too trivial also to command a price, if it were demanded. But the furnishing him a perpetual light, as in the case of the idea, is a service sufficiently important to be worth demanding a price for it; and also sufficiently important to command a price in the market. And this is the difference, or at least one of the differences, between the two cases.

To make the case of the material light analogous to that of the intellectual light, it would be necessary that we produce, at our own cost, a permanent material light, such as will be of practical utility in labor. Having done this, a stranger, who had no share in the production of the light, claims the right to come into our [100] light, and to use it for the purposes of his labor, without our consent, against our will, and without making us any compensation. We deny his right to do so; we tell him the light is our property, the product of our labor; that, as such, we have a right to control it, and its use; that we produced it with a view to sell so much of it as we did not wish to use; and that we will permit him to use it only on his paying us such a price as we see fit to demand. But he replies, that within the sphere of our light, there is room, which we do not occupy, and where the light goes to waste; that his occupying this vacant space, and using this waste light, will not interfere with the light we are using; that the light will be just as strong, where we are at work, as it was before; that he denies our right to demand pay for the use of our surplus light; and that therefore he will use it, and pay us nothing for it.

Which party here has the law on his side, the producers of the light, or the intruder? Certainly there can be no doubt that the light is the property of the producers, and that no one can claim the right to use it, for the purposes of his labor, without their consent. And the principle is the same in the case of the intellectual light.

To make the analogy still closer, between the cases of the material and the intellectual light, and especially to make the wrong of the intruder more palpable, we must suppose that we have produced a peculiar material light; and that this peculiar light is indispensable for the manufacture of a peculiar commodity, that is of value in the market. We, being the sole producers and possessors of this peculiar light, enjoy a monopoly of the manufacture and sale of the peculiar commodities manufactured by the aid of it. The intruder now claims the right, with out our consent, to come into our light, and use it for the manufacture of the same kind of commodities, which we are manufacturing, and which can be manufactured only by our light; and then to offer those commodities in the market in competition with ours. He thus claims, not only to use our light, against our [101] will, and without making us any compensation, but also to use it for a purpose which is prejudicial to us, by reducing the market value of the commodities, which we ourselves manufacture by it. He thus does us a double wrong; for he not only uses, without our consent, and without making us any compensation, the light which we alone have produced; but he also reduces the practical value of the light to us, for our own uses, by selling, in competition with ours, the commodities he manufactures by its aid.

Is there no injustice, no intrusion, no usurpation, in such conduct as this? Most clearly there is. If, I being an innholder, a stranger were to come into my house, seize upon my stores of provisions, cook them by my fire, and then sell them to my customers, in competition with those which I have provided for them, the intrusion, usurpation, injustice, and robbery would be no more flagrant than in the case supposed. Yet neither of these cases is any more than a parallel to that of a man, who, without my consent, uses my invention, my intellectual light, and manufactures commodities by it, which he otherwise could not manufacture, and then sells them in competition with mine.

Finally. If the doctrine be true, that a man should have no pay for imparting knowledge to others, because he retains the same knowledge himself, then a lawyer should have no pay for the knowledge he imparts to his client, to a jury, or to a judge; a physician should have no pay for the knowledge he imparts to his patient, or to his patient’s nurse; a preacher should have no pay for the knowledge he imparts to his congregation; a lecturer should have no pay for the knowledge he imparts to his audience; a teacher should have no pay for the knowledge he imparts to his scholars; a master should have no pay for the knowledge he imparts to his apprentice; a legislator should have no pay for the knowledge he imparts to his fellow legislators, or to the country, by his speeches; a judge should have no pay for the knowledge he imparts by his judicial opinions or decisions; authors and editors should have no pay for the knowledge they impart by their writings; and so on indefinitely.

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By the same principle too, a musician should charge nothing for his music, because he loses none of it himself. He hears it all, and enjoys it all, the same as if no one else were hearing it, or enjoying it. A painter should have no pay for a view of his picture, because he does not thereby lose the view of it himself. A sculptor should have no pay for exhibiting a statue, because he does not thereby lose the sight of it himself. A soldier should have no pay for achieving the liberties of his country, because he enjoys all those liberties himself, and none the less because his fellow countrymen, who stayed at home while he was fighting, enjoy them too. Such are some of the absurdities to which the doctrine leads.

The argument on this point might be extended still farther. But I apprehend it has already been extended farther than was really necessary. The objections have no soundness in them; yet they have probably as much plausibility as any of the objections that were ever brought against one’s right of property in his ideas. And this is the reason I have felt it excusable to expend so many words upon them.

SECTION XIII.: Objection Thirteenth.

It is said that society have rights in ideas, that have been once made known to them; that a perpetual monopoly in the producer, destroys the rights of society; and that society have a right to perpetuate ideas once made known.

Hence it is inferred that society have a right to confiscate ideas, and make them free to all, in order to prevent the producer’s withholding them from the public, and thus causing them to perish unused.

The primary assumption here is, “that society have rights in [103] ideas once made known to them.” From this assumption, the other assumptions and the inference naturally follow. They depend solely upon it, and are nothing without it. If, then, the first assumption be baseless, the others and the inference are equally so.

What rights society have, in ideas, which they did not produce, and have never purchased, it would probably be very difficult to define; and equally difficult to explain how society became possessed of those rights. It certainly requires something more than assertion, to prove that by simply coming to a knowledge of certain ideas—the products of individual labor—society acquires any valid title to them, or, consequently, any rights in them.

There would clearly be just as much reason in saying that society have rights in material commodities—the products of individual labor—because their existence had become known to the public, as there is in saying that they have rights in ideas—the products of individual labor—simply because their existence had become known to the public. There would, for example, be just as much reason in saying, that society have rights in a thousand, or a hundred thousand, bushels of wheat—the product of individual labor—on the ground that the existence of this wheat had become known to them, as there is in saying that they have rights in a mechanical invention—the product of individual labor—on the ground that its existence has become known to them. And there would be just as much reason in saying, that society have a right to confiscate this wheat, and distribute it gratuitously among the people, in order to prevent the producer’s withholding it from market, and suffering it to rot, as there is in saying that society have a right to confiscate a mechanical invention, and make it free to the public, in order to prevent the inventor’s withholding it from market, and suffering it to be lost.

If, however, this doctrine be true, in favor of society, it must be equally true in favor of single individuals; for society is only a number of individuals, who have no rights except as individuals. [104] The consequence of the doctrine, therefore, would be, that every private individual would have rights in every commodity, the existence of which should come to his knowledge! He would also, of course, have the right, (now claimed for society,) of preserving such commodities from loss and decay. And this right would involve the still further right, (now claimed for society,) of taking such commodities out of the hands of the producers, and appropriating them to his own use, in order to prevent the producer’s withholding them from him, and suffering them to perish unused by him! This is the legitimate result of the principle contended for.

This doctrine, that society have rights in all commodities, in consequence of the commodities becoming known to them; and that they have a right to confiscate them, and apply them to the public use, in order to prevent the producer’s withholding them from market, and suffering them to perish unused, would certainly afford a very convenient and efficacious mode of destroying all private property, and throwing every thing into common stock. But what other purpose it could serve, it is not easy to see. If the doctrine be a sound one, in regard to material commodities, it is undoubtedly sound also in regard to intellectual commodities. But if it be the height of absurdity and tyranny, in regard to material commodities, it is equally absurd and tyrannical in regard to ideas.

The doctrine is also as unsound in policy, as it is in law; since it would cause a thousand commodities to perish unused, or prevent their ever being produced, as often as it would save one from thus perishing. If a man be allowed an absolute property in the products of his labor, and can forbid others to use them, except with his consent, he then has a motive to preserve them, and bring them to market; because, if they are valuable, they will command a price. Hence he will suffer few or none of them to be lost. But if the products of his labor are to be confiscated, he is, in the first place, dissuaded from producing nearly as many as he otherwise would; and, secondly, such as he does produce, [105] he will keep concealed as far as possible, in order to save them from confiscation; and the consequence will be that very many of them will perish unused.

SECTION XIV.: Objection Fourteenth.

Another objection is, that after the author of an idea has once made it known to others, it is impossible for him ever to recover the exclusive possession of it.

This objection is of no validity—and why? Because it is wholly unnecessary that he should have the exclusive possession of his idea, in order to practically exercise his right to the exclusive use of it.

The objection assumes that it is practically impossible for a man to exercise his right to the “exclusive use” of an idea, unless he also have the exclusive possession of it.

The objection rests solely on that assumption. Yet such an assumption is a self-evident absurdity; for the exclusive possession of an idea is not, in practice, at all necessary to the exclusive use of it. An idea, unlike a corporeal commodity, can be as fully and completely used, by a single individual, when it is possessed by all the world, in common with himself, as when it is possessed by himself alone. Their possession of it, jointly with himself, offers no natural impediment whatever to his exclusive use of it. The practical exercise of his right of exclusive use, is, therefore, in no manner whatever, naturally contingent or dependent upon his exclusive possession. And this fact alone is self-evidently an ample and unanswerable reason why, in law, it is wholly unnecessary that he should retain his exclusive possession, in order to retain the right of exclusive use.

Here, no doubt, the argument, on this point, might be safely [106] left. But, perhaps, some further illustration of it may be allowable.

The law never makes any requirements, that are practically unnecessary to the exercise of one’s rights. The only reason, why a man’s right to the exclusive use of a corporeal commodity, is ever, in law, dependent upon his right to the exclusive possession of it, is, that the practical exercise of his exclusive right of use, is naturally and necessarily dependent on his exclusive possession of the commodity. It is naturally impossible that he can use it—that is, the whole of it, fully and completely—unless he have exclusive possession of it. But it is wholly otherwise in the case of an idea, which, from its immateriality, can be as fully and completely used, by a single individual, when it is possessed by all other men, in common with himself, as when possessed by himself alone.

Whenever the practical exercise of the exclusive right of use, is, naturally and necessarily, dependent on the exclusive possession, there a man must have an exclusive right of possession, in order to have an exclusive right of use. But whenever the practical exercise of an exclusive right of use, is naturally possible, without the exclusive possession, there the two may be separated, and a man may have an exclusive right of use, with only a common right of possession.

For the law to require an exclusive possession, to sustain the right of exclusive use, when a common possession is just as good for the practical exercise of that right, would be interposing an unnecessary obstacle to the enjoyment of one’s rights.

When a man parts with the exclusive possession of an idea, he parts with what it is naturally impossible he should ever recover. And if the practical exercise of his exclusive right of use, were, naturally and necessarily, dependent upon his exclusive possession, his right of exclusive use would be forever lost, with his right of exclusive possession. But since the practical exercise of his exclusive right of use, is not in any way dependent upon his exclusive possession, the question of exclusive possession has [107] legally nothing to do with his right to the exclusive use; and the owner of an idea may, consequently, give to all mankind, a perpetual and irrevocable possession of it, in common with himself, without his own right to the exclusive use of it, being at all impaired thereby.

The case of the owner of an idea, after he has given to others a knowledge or possession of it, in common with himself, is nearly or quite similar to that of a man, who should grant to others the perpetual, but naked, right, to come personally upon his farm, and enjoy the prospect, doing no damage, and offering no impediment to his labor; but without any right themselves to cultivate the farm, or to take the crops. In this case, the individuals, so admitted upon the farm, would hold possession of it, in common with the owner, to the precise extent, and for the specific purpose, to which, and for which, he had granted it to them; and they would hold it to no greater extent, and for no other purpose. Now, it certainly could never be said, in such a case, that the owner had lost his exclusive right to cultivate his farm, and take the crops, because he could never recover the exclusive possession of it.

The principle is the same in the case of the idea. The owner admits other men to a simple knowledge of the idea—that is, to a naked possession of it—in common with himself; but without any right to use it, for any industrial or pecuniary purpose. They receive the possession of it, subject to these limitations. Here plainly the owner’s right to the exclusive use of it, for industrial and pecuniary purposes, is no more impaired, than in the case of the farm.

Since, then, the owner of the idea has never parted with his own possession of it, nor with his original right to the exclusive use of it, he has no need to recover the exclusive possession of it; because the possession of it by others, in common with himself, offers no practical impediment to his exclusive use of it. The exclusive possession of the idea, being practically unnecessary to his exclusive use of it, it is legally unnecessary. Consequently [108] the fact, that he can never recover it, is a fact of no legal importance whatever, as affecting his right to the exclusive use of it.

SECTION XV.: Objection Fifteenth.

Another objection is, that ideas cannot be seized, on any legal process.

Admitting, for the sake of the argument, what is probably true, that no way can be devised, by which a man’s property, in ideas, can be taken on legal process, that fact interposes no obstacle whatever to their being treated, by the law, as property. There are many kinds of property, which the law protects, but which, nevertheless, the law cannot seize. For example. Reputation is property, and is protected by the law; yet it cannot be seized and sold, to pay a fine, or satisfy a debt. A man’s health, strength, and beauty are property; and the law punishes an injury done to them; yet they cannot be seized and sold, on legal process. All a man’s intellectual faculties and powers, are property; yet they cannot be taken for a debt, or confiscated for crime. Music is property; and a single hour’s melody will often bring thousands of dollars in the market. Yet it cannot be taken in execution for a debt. Labor, of all kinds, is property; but no kind of labor whatever can be seized by the law.

This objection, like all the others, is therefore without foundation.

I have thus answered, or attempted to answer, every objection, worthy of an answer, (except two—one to be noticed in the next, and the other in the succeeding, chapter,) that I remember ever to have read or heard, against the right of a man, on principles of natural law, to an absolute and perpetual property in his ideas.

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CHAPTER III.: PERPETUITY AND DESCENT OF INTELLECTUAL PROPERTY.

SECTION I.: Perpetuity of Intellectual Property.

If men have a natural right of property, in their intellectual productions, it follows, of necessity, that that right continues at least during life. Nature has certainly fixed no limit short of life, to the right of property. Limitation to a less period, would be contrary to the very nature of the right of property, which, as has been before repeatedly mentioned, is an absolute right of dominion; a right of having a thing entirely subject to one’s will. If a man’s right to exercise this dominion, were limited in duration, it would not be absolute. If, therefore, his will to exercise it, continue through his life, his right to exercise it, continues for the same length of time—for his will and his right go hand in hand. The property is, therefore, necessarily his, during his life, unless he consent to part with it.

SECTION II.: Descent of Intellectual Property.

There is the same reason, and as strong reason, why a man’s intellectual property should descend to his relatives, as there is why his material property should do so.

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What is the ground, on which the law allows any man’s property to go, at his death, to his wife, children, or other relatives? This, and nothing else, viz.: the law presumes that he acquired it for them, and intended it for their benefit. In short, it presumes that it was his will that it should go to them, rather than to mankind at large. And this is a reasonable presumption, (in the absence of express evidence to the contrary,) because, during life, men usually labor for, and devote their property to the support and welfare of, their immediate families and relatives, in preference to strangers. And it is natural that, at death, they should wish their property still to be devoted to the same ends, for which they produced and employed it while living. This presumption is so natural and reasonable, so well grounded in the nature and experience of mankind at large, and withal so consistent with a man’s moral duties, that nothing is suffered to overcome it, in law, except undoubted evidence that a man expressed a different will, while living, and in the possession of his reason.

Although men sometimes will that, at their death, their property shall go to others than their nearest relatives, it is nevertheless nearly or quite an unheard of event, that a man should wish his property to go to mankind at large, in preference to his immediate friends. There is, therefore, no ground, in law, for such a presumption, in the absence of express evidence. And there is no more reason why a man’s intellectual property should go to the public, at his death, than there is why his material property should go to them.

It has been said, that, admitting a man to have an absolute property in his ideas, during life, it is a wrong to society to allow the transmission of this right by inheritance, for this reason, viz.: It is said that the right of property naturally terminates with the life of the proprietor; that, in the case of material property, society allow the right to be transmitted to relatives, for the reason that, otherwise, the property, being left without an owner, would become the property of those who should first seize upon [111] it; that it would thus give rise to violent scrambles among those who should be attempting to seize upon it; that, to prevent this violence, society decrees that the property shall go to the immediate family of the deceased; but that, as there could be no scramble or violence to get possession of an idea, at the death of the proprietor, there is no necessity, and therefore no justification, for allowing the principle of inheritance to apply to intellectual property; and that, consequently, such property should become free to all.

This objection is entirely fallacious; and the reason assigned, why material property is allowed to go to the relatives of the deceased, is not the true one. Society do not establish the principle of inheritance arbitrarily, as the objection supposes, to avoid occasions for violent scrambles for the property of the dead; for such scrambles could as well be averted by decreeing that the property should escheat to the government, as by decreeing that it should go to the relatives of the deceased. And if the property have no rightful owner, it perhaps ought to go to the public, and to the government as the representative of, and trustee for, the public. But the principle of inheritance is a principle of natural law, founded on the presumption that, where a deceased person has left no evidence to the contrary, it was his will, (so long as he had his reason, and therefore so long as his will was of any legal importance,) that in that moment, (whenever it might arrive,) in which his property could no longer be useful to, nor be controlled by, himself, all his rights in it should vest in his family. And such a will, or consent, is, in its nature, as valid and sufficient, and the law justly holds it to be as effectual, to convey the right of property, as any consent which a man gives, when in full health, to the conveyance of his right of property for a pecuniary consideration.

The universal nature of mankind, and their nearly or quite universal conduct, throughout life, and in their latest moments of reason, furnish so strong evidence that such is the will of all men, in regard to their property, that governments dare not disregard [112] it—dare not confiscate the property of a deceased person, who left relatives living within any reasonable limit of consanguinity. And mankind in general would as soon rebel against a government, which they knew would confiscate their property at their death, and thus plunder their families of the provision they had made for them, as they would against one that should confiscate it while they were living. There is no species of robbery, which the general sense of mankind would consider more atrocious, on the part of government, than that of confiscating the property of the dead.

“The property of the dead.” That is not an accurate expression. It is not the property of the dead, but of the living; for the right of property passed to the living at or before the moment of the death of the original proprietor.

If, then, the principle of inheritance be a principle of natural law, it is as applicable to intellectual, as to material, property.

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CHAPTER IV.: THE SALE OF IDEAS.

There remain to be considered some important questions, in regard to the sale of ideas, in connexion with books, machines, statues, pictures, &c. We will first speak of the sale of them in connexion with books; and of the other cases afterward.

When an author sells a copy of his book, does that sale carry with it the right to reprint the book? Or does he reserve that right exclusively to himself?

If he reserve that right exclusively to himself, how does that reservation legally appear, when no express stipulation of the kind is shown?

If the purchaser of a book do not buy with it the right to reprint it, what right of property or use does he buy, in the ideas which the book communicates? And how are legal tribunals to know what right of property, in the ideas, which the book communicates, is conveyed by the sale of the book itself?

Questions of this kind have been proposed, by those who deny that any exclusive right of multiplying copies, can remain with the author, after he has sold copies of his book unreservedly in the market. These persons say that, by selling his book unreservedly, the author necessarily sells the right to make any and all possible uses of the ideas communicated by the book; that the reprinting of the book is only one of the uses, to which the copy sold is capable of being applied; and that the right to use the copy for this purpose, is as much implied in the sale of the book, as is any other use of it whatever.

These questions and arguments were forcibly presented by Justice Yates, and by Lord Chief Justice De Grey, as follows.

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Justice Yates said, “Every purchaser of a book is the owner of it; and, as such, he has a right to make what use of it he pleases.

“Property, according to the definition given of it by the defendant’s counsel, is ‘jus utendi, et fruendi’ [the right of using and enjoying]. And the author, by empowering the bookseller to sell, empowers him to convey this general property; and the purchaser makes no stipulations about the manner of using it.

“The publisher himself, who claims this property, sold these books, without making any contract whatever. What color has he to retrench his own contract? or impose such a prohibition?” [a prohibition upon reprinting the book.]

“If the buyer of a book may not make what use of it he pleases, what line can be drawn, that will not tend to supersede all his dominion over it? He may not lend it, if he is not to print it; because it will intrench upon the author’s profits. So that an objection might be made even to his lending the book to his friends; for he may prevent those friends from buying the book; and so the profits of such sale of it will not accrue to the author. I do not see that he would have a right to copy the book he has purchased, if he may not make a print of it; for printing is only a method of transcribing.

“With regard to books, the very matter and contents of the books are, by the author’s publication of them, irrevocably given to the public; they become common; all the sentiments contained therein, rendered universally common; and when the sentiments are made common by the author’s own act, every use of those sentiments must be equally common.

“To talk of restraining this gift, by any mental reservation of the author, or any bargain he may make with his bookseller, seems to me quite chimerical.

“It is by legal actions that other men must judge and direct their conduct; and if such actions plainly import the work being made common; much more, if it be a necessary consequence of the act, ‘that the work is actually thrown open by it;’ no private transaction, or secretly reserved claim of the author, can ever control that necessary consequence. Individuals have no power, (whatever they may wish or intend,) to alter the fixed constitution of things; a man cannot retain what he parts with. If the author will voluntarily let the bird fly, his property is gone; and it will be in vain for him to say ‘he meant to retain’ what is absolutely flown and gone.”*

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Lord Chief Justice De Grey said:

“But it is said, that the sale of a printed copy is a qualified or conditional sale, and that the purchaser may make all the uses he pleases of his book, except that one of reprinting it. But where is the evidence of this extraordinary bargain? or where the analogy of law to support the supposition? In all other cases of purchase, payment transfers the whole and absolute property to the buyer; there is no instance where a legal right is otherwise transferred by sale; an example of such a speculative right remaining in the seller. It is a new and metaphysical refinement upon the law; and the laws, like some manufactures, may be drawn so fine as at last to lose their strength with their solidity.”*

These questions and arguments are of vital importance to the principle of intellectual property. They are worthy of being answered. They must be answered, before the principle of exclusive copyright can be maintained, as a part of the law of nature. Yet, I apprehend, they have never been adequately answered.

The common, and I believe the only, answers, that have ever been made to these arguments, have been, 1st. That it is only by the multiplication of copies, that an author can expect to get paid for the labor of producing his book; and therefore it would be unreasonable to suppose that he intends to part with his exclusive right to multiply copies, for so trivial a price as the profit made upon a single book. 2d. That if an author were to part with his exclusive right to multiply copies, his ideas might be misrepresented, mutilated, and attributed to other persons than himself; and thus his reputation suffer, without his having any means of redress; and that it is therefore unreasonable to suppose he intends to subject himself to the liability of such injustice, for so small a consideration as the profit on a single copy of his book.

These are no doubt weighty considerations; but they do not fully meet the question. A man, who gratuitously gives away his ideas in conversation, loses all chance of reaping any pecuniary profit from them. He is also liable to have his views misrepresented, mutilated, and attributed to others than himself. But the law does not, for these reasons, uniformly imply that he [116] reserved any exclusive right of property in, or control over, them. And if it will not imply this, in the case of a man, who gives his ideas gratuitously to the public, why should it do it for a man who has sold, and received a price for, his ideas?

The argument of inadequacy of price is an insufficient one, for various reasons, as follows.

1. Inadequacy of price is, of itself, no objection to the validity of a sale, where no fraud is alleged.

2. Inadequacy of price is oftentimes, in practice, a very difficult thing to be proved; and would be especially so in the case of the copyrights of books. Men’s opinions differ so much as to the intrinsic merits of particular books; and the market value of a copyright often depends so little upon the book’s intrinsic merits, that inadequacy of price could seldom or never be proved. Milton, assuming that he had a perpetual copyright in his Paradise Lost, sold it for five pounds. Yet this was a legal sale, and its validity could not be impeached for inadequacy of price.

3. The difference in price between a book, of which the copyright is reserved, and one of which the copyright is not reserved, is too slight to afford any sufficient evidence, of itself, to a judicial tribunal, whether the copyright was, or was not, reserved.

4. If, as the opponents of an exclusive copyright contend, every purchaser of a book purchases with it the right of reprinting it, no one purchaser could afford to pay but a trivial price above the value of the book, independently of that right; because he would buy no exclusive right; but only a right to be held in common with all other purchasers of copies. He could therefore secure no monopoly in the publication of the book; but could only print it in competition with all others, who should choose to print it. For such a right he could, of course, afford to pay but a merely trivial price, independently of the value of the book for other uses. How then could it ever be proved that he had paid an inadequate price for such a right as he has purchased?

5. If the author, by selling each copy of his book unreservedly, sells with it the right of multiplying copies, then the [117] presumption would be, that he received a price at least somewhat higher, for each copy, than he could have sold it for, if he had expressly stipulated that it should not be used for multiplying copies; and from this presumption it would follow, as a legitimate inference, that he had chosen to adopt this mode of getting paid for his copyright—that is, by a slightly additional price on each copy sold—rather than by the sale of the exclusive copyright to any one individual.

The original question, then, necessarily returns, viz.: What right has the purchaser of the book obtained? Has he purchased the right to multiply copies? Or only the right to use, in other ways, the particular copy that he has purchased? And, especially, how can legal tribunals know what right has been bought and sold?

It evidently will not do for an author, after he has sold a book unreservedly, to say, arbitrarily, that he did not intend to part with his exclusive copyright; since it is clear that, in law, every man must be held to have intended every thing that is necessarily implied in his voluntary act.

The whole question, then, resolves itself into this, viz.: What, on legal principles, is necessarily implied in the sale of a book, by an author, when no express stipulation is entered into, as to the use that is to be made of it? In other words, What rights, in the ideas communicated by the book, does the author necessarily convey, when the sale of the book itself is qualified by no express restriction upon its use?

I shall offer an answer to this question, by attempting to prove, what seems almost too nearly self-evident to need to be proved, viz.: That a book, and the ideas it describes, are, in fact, and in law, distinct commodities; and that an unqualified sale of the book does not, therefore, of itself alone, imply any sale whatever of the ideas it describes, nor the conveyance of any right whatever to the use of those ideas.

By this I mean that the sale of the book conveys, of itself, no right of property or use in the ideas, beyond that merely mental [118] possession and mental enjoyment of them, which are indeed a species of property and use; and necessarily, or at least naturally, follow from reading the book; but which, for the sake of brevity and clearness in this discussion, I shall leave out of consideration.*

It will therefore be understood, when, in the remainder of this chapter, I speak of “property” in, and “use” of, ideas, that I mean a property and use beyond, or additional to, this merely mental possession and enjoyment of them.

To state more precisely the point to be proved. Suppose the author of a valuable mechanical invention were to write, and sell unreservedly in the market, a book describing his machine so fully that a reader would be able, from the description given, to construct and operate a similar machine. The purchaser of the book would, in this case, acquire a right to the mental possession, and mental enjoyment, of all the knowledge communicated by the book; but he would acquire, simply by virtue of his purchase of the book, no right whatever to use that knowledge in constructing or operating a machine like the one described. And the same principle applies to all other ideas described in books. This is the point to be proved.

If the first of the foregoing propositions be true, viz.: “That a book, and the ideas it communicates, are, in fact, and in law, distinct commodities,” the truth of the succeeding proposition, viz.: “That an unqualified sale of the book does not, of itself alone, imply any sale whatever of the ideas it describes, nor the conveyance of any right whatever to the use of those ideas,” would seem to follow of course; because the sale of one thing [119] can, perhaps, never, of itself, imply the sale of another thing, that has a separate and distinct existence.

That a book, and the ideas it communicates, are, in fact and in law, separate and distinct commodities, is apparent from the following considerations, viz.

1. What is an idea? It is a production of the mind. It is wholly immaterial. It has no existence, except in the mind. It can exist only in the mind. It no more exists in a book, than it does in a stone, or a tree. It can no more exist in a book, than in a stone, or a tree.

2. What is a book? It is mere paper and ink. It is entirely material. In its nature, it differs as much from an idea, as a stone or a tree differs from an idea. There is no more natural affinity between a book and an idea, than there is between a stone, or a tree, and an idea. That is, an idea will no more inhere in, or adhere to, a book, than it will inhere in, or adhere to, a stone or a tree.

When, therefore, a man buys a book, he does not buy any ideas; because ideas themselves are no part of the book; nor are they in any way attached to the book. They exist only in the mind.

A book, therefore, does not, as, in common parlance, is habitually asserted, contain, any ideas. The most that can be said, is, that it represents, describes, or perhaps more properly still, suggests, or brings to mind, ideas. And how does it do this? In this way only. The book consists of paper, with certain characters, in ink, stamped upon it. These characters were devised to be used as arbitrary signs, or representatives, of certain sounds uttered by the human voice. And by common consent among those, who are acquainted with these arbitrary significations, that have been attached to them, they are used to represent those sounds. The vocal sounds, which these characters arbitrarily represent, are, by common consent, used by mankind, as the names of certain ideas. These names of the ideas are not the ideas themselves, any more than the name of a man is the [120] man himself. But when we hear the names of these ideas, the ideas themselves are brought to our minds; just as, when we hear the name of a man, the man himself is brought to mind. In this way the characters printed, in ink, in a book, are used as the signs, representatives, or names, at second hand, of men’s ideas; that is, they represent certain sounds, which sounds stand for, represent, and thus call to mind, the ideas. This is all the resemblance a book has to the ideas, which it is employed to communicate.

The most, therefore, that can be said of a book, is, that it consists of, or contains, certain material things, to wit, characters in ink, stamped on paper, which, by common consent among mankind, are used to represent, describe, suggest, or carry to one’s mind, certain immaterial things, to wit, ideas.

It is, therefore, only by a figure of speech, that we say that a book contains ideas. We mean only that it contains, or consists of, certain material things, which suggest ideas. It contains only such material signs, symbols, or arbitrary representatives of ideas, as one mind employs in order to suggest or convey its ideas to other minds.

Now, unless the sale of a material symbol, or representative, be legally and necessarily identical with the sale of the immaterial idea, which that symbol represents, or suggests, it is clear that the sale of a book is not, legally or necessarily, identical with the sale of the ideas, which that book may suggest to the reader.

The ideas themselves are not contained in the book; they constitute no part of the book; they have their whole existence entirely separate from the book—that is, in the mind; the whole object, design, and effect of the book are, to suggest certain ideas to the mind of the reader, and thereby act as a vehicle, or instrumentality, for conveying the ideas from one mind to another.

What ground is there, then, for saying that the sale of the book is necessarily or legally identical with the sale of the ideas, which it communicates, describes, or suggests? None whatever.

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Suppose a man make a book, containing such drawings, pictures, and written descriptions, of his house, his farm, his horses, and his cattle, as are sufficient to bring those commodities to the mind of the reader. And suppose he then sell that book unreservedly in the market. Does the purchaser of the book acquire, by virtue of that purchase, any right of property or use in the commodities described in the book? Certainly not. And why not? Simply because the book, and the things it describes, are, in fact, and in law, separate and distinct commodities; and the sale of the one does not, therefore, at all imply the sale of the other.

The same principle applies to a book, that describes ideas, instead of houses and lands. The book, and the ideas it describes, are as much separate and distinct commodities, in the one case, as are the book, and the houses and lands it describes, in the other. And the sale of the book, that describes the ideas, no more implies the sale of the ideas, than the sale of the book, that describes the houses and lands, implies the sale of the houses and lands.

The only difference between the two cases, is this wholly immaterial one, viz.: that the written descriptions, of the ideas, are sufficient to put the reader in actual possession of the ideas described—that is, in mental possession of them, which is the only possession, of which they are susceptible; whereas the written descriptions, of the houses and lands, are not sufficient to put the reader in actual possession of those commodities; since the possession of houses and lands must be a physical, instead of a mental one. But this difference, in the two cases, is wholly immaterial to the right of property for use; because simple possession of the ideas, (and this is all the book gives,) is of no importance, in law, without the right of property for use—as has been already explained in chapter 2d, section 2.*

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The conclusion, therefore, that the sale of a book, describing ideas, gives no right of property in the ideas, for use, is just as valid and inevitable, as is the conclusion, that the sale of a book, describing houses and lands, gives no right of property in the houses and lands, for use.

An author, in selling a book, sells nothing but the book itself; the right to use the book itself; and the right to all the benefits, which necessarily or naturally result to the reader from the use of the book alone. He sells nothing that the book describes; nor the right to use any thing that the book describes.

The question arises, then, what is necessarily, naturally, or legally involved in the use of the book alone? The answer is this.

The whole object and effect of the book itself, as a representative of ideas, are accomplished, when it has suggested to its readers all the ideas which it can suggest. Every possible use and power of the book itself, in relation to the ideas it describes, are exhausted in the execution of that single function. After that function is performed, the book itself is thrown aside, and has no part nor lot whatever in any of the uses, to which the ideas, it has suggested, may be applied. How, then, can it be said that the use of the book involves the use of the ideas it communicates, when the use of the ideas is a wholly separate act from the use of the book itself; and the use of the book itself is a wholly separate act from the use of the ideas? There would be just as much reason in saying that the use of a book, that described a farm, involved the use of the farm, as there is in saying that the use of a book, describing ideas, involves the use of those ideas.

Plainly, then, an author, by describing his ideas in a book, and then selling the book for use, gives no more right to the use [123] of his ideas, than a man, who describes his farm in a book, and then sells the book for use, gives a right to the use of his farm.

Certainly, too, every purchaser of a book, that describes ideas, is as much bound to know, that the book and the ideas are separate and distinct commodities, as the purchaser of a book, that describes a farm, is bound to know that the book and the farm are separate and distinct commodities. And the purchaser of a book is also bound to know, that he no more acquires a right to use the ideas, by simply buying a description of them, than he acquires a right to use a farm, by simply buying a description of it.

But perhaps it will be said that the whole object, in buying a book, is to get possession of the ideas it describes; and that the whole object, in getting possession of the ideas it describes, is to use them for our benefit, as in the case of any material commodities, which we seek to get possession of; that the author knows all this when he sells the book; and that the law will consequently imply that he consented to it; inasmuch as otherwise it would impute to him the fraud of making a sale, in form, without intending that the real benefits of the sale should be enjoyed by the purchaser.

But there is no such analogy, between material and immaterial things, as is here assumed. The possession of material things, without the right of use, is a burden, because it imposes labor, without profit. Men therefore do not desire the possession of material things, unless they have also the right of using them. But it is wholly different with ideas. The simple possession of them is necessarily a good. They are no burden. They impose no profitless labor upon the possessor. They furnish food and enjoyment for his mind, and promote its health, strength, growth, and happiness, even though he be not permitted to use them, in competition with their owner, as a means of procuring subsistence for his body.

A very large proportion of all the books, that are purchased, are purchased solely for the mental enjoyment and instruction to [124] be obtained by reading them; and not for the purpose of reprinting them, nor of using the ideas for any pecuniary end.

There is, therefore, no ground for saying that the whole object of buying books, is to get the ideas, to be used for pecuniary purposes; and that, unless they can be so used, the author has practised a fraud on the purchaser. The mental enjoyment and instruction, which the reading of books affords, are sufficient motives for the purchase of books, even though the right to use the ideas described in them, for pecuniary ends, be no part of the purchase.

Taking it for granted that it has now been established, that a book itself contains no ideas; that a book, and the ideas it describes, are, in fact, and in law, distinct commodities; and that the sale of the book legally implies no sale of the ideas for use (beyond the simple mental possession and enjoyment of them); I stop to anticipate an objection, viz.: It will be asked how one man can trespass upon another man’s right of property, in ideas, by simply printing and selling a book, that contains no ideas?

The answer to this question is, that a book cannot be printed without using the author’s ideas; inasmuch as those ideas are an indispensable guide to the work of printing a book that shall describe them. They are an indispensable guide to the work of setting the type that are to represent those ideas. It is impossible, therefore, that a book can be printed, without using the ideas which the book is to describe. This use, therefore, of an author’s ideas, unless with his consent, expressed or implied, is a trespass upon his right of property in them. The use of his ideas, without his consent, in making a valuable book, is as much a trespass upon his right of property in those ideas, as the use of a man’s printing press, without his consent, in printing the book, would be a trespass upon the owner’s right of property in the printing press.

But not merely the printing of a book, without the author’s consent, is a trespass upon his right of property in his ideas, but the sale, and even the reading, of a book thus printed, is also a [125] trespass upon the same right of property—and why? Because the right of property is a right of absolute dominion. The owner of ideas, therefore, has a right to inhibit—and, where he reserves his copyright, he does inhibit—the communication of his ideas, from one mind to another, through the instrumentality of any books whatever, except such as he himself prints, or licenses to be printed. Any body, therefore, who either sells or reads a book, not printed by the author, nor licensed by him to be printed, is an accomplice and agent in taking the author’s ideas out of his control, and in communicating them through a channel or instrumentality, which he has inhibited to be used in the communication of his ideas.

So absolute is an author’s right of dominion over his ideas, that he may forbid their being communicated even by the human voice, if he so please. And such prohibition would be as perfectly legal, as any other act of dominion over them.

An author may, if he please, by express contract, restrict the communication of his ideas, beyond the first purchasers of the books, which he himself prints, or licenses to be printed; and thus make it necessary for every man to buy a book, and pay tribute on it to the author, in order to become-acquainted with the ideas. And there may, perhaps often, arise cases where it would be for the interest of an author to do so. But without such an express contract, the presumption of law would be, that the purchaser of a book had the consent of the author to sell it, lend it, or dispose of it, at his pleasure, as he would any other material property; and that every one, into whose hands it should thus lawfully come, might read it.

But here another question will be raised, viz.

If a book, and the ideas it describes, are distinct commodities; and if the sale of the book do not imply the sale of any right of property in the ideas described in it, (beyond the mere possession and mental enjoyment of them;) how is it that men can ever have a right to use any of the ideas described in books, without making a special purchase of them, separately from the book?

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It is important that this question be answered; because, although the productions of every man’s mind are theoretically his property, yet we see that, in practice, not all, but nearly all, the ideas, that are described in books, are freely used by mankind at large, in any and every way in which they please to use them—(except the single one of reprinting the author’s descriptions of them)—without making any special purchase of them from the author, separately from the purchase of the books describing them. It may seem, at first view, that this practice must be illegal. But I shall attempt to show that mankind have a legal right to use, in this way, not all, but nearly all, the ideas that are described in books. And the question now is, how can they have this right, consistently with the principles hitherto laid down in this essay?

The answer to this question is to be obtained by applying, to each case, these general rules, viz.

When an author sells a book, describing his ideas, the law presumes that he intends to retain all such of his original exclusive rights of property in them, as may be practically valuable to him; and that he intends to abandon—not to sell, but to abandon—all such of his original exclusive rights of property in them, as would not be of any value to him, if retained.

The law raises these presumptions, on his part, because they are abstractly reasonable, and conformable to the principles of action, that generally govern mankind—that is, mankind generally wish to preserve all their rights of property, that will be practically valuable to them; and they generally wish not to look after, watch over, or consequently to preserve, any rights of property, that are too insignificant to be of any practical value to them.

These rules also, when applied to ideas, are only the synonyms or equivalents of the general principles, on which the administration of justice proceeds in all cases, viz.: that the government is established and maintained for practical, and not for merely theoretical, purposes; and that it will therefore protect a man in the [127] possession of every thing that is his, and that is of any real appreciable value to him; but that it will incur neither the trouble nor expense of protecting him in that, which, though it may be theoretically his, is of no real appreciable value to him.

This, too, is, practically speaking, all the protection, which the law can give to a man’s rights of property, in any case; whether the property be material or immaterial; because the law can award no damages for the invasion of rights, unless the injury suffered be large enough to be capable of being measured by at least some legal standard of value, as a cent, a farthing, a penny, or some measure of that kind.

These principles are usually expressed by the legal maxim, de minimis non curat lex [the law takes no care of trifles;] (which maxim, by the way, implies that the law does take care of every thing that is of any real appreciable value).

The result of these principles, then, when applied to ideas, is simply this, viz.: wherever an author’s exclusive rights of property in them, can be of any real appreciable value to him, the law will protect him in them; inasmuch as it will presume that he desires to retain them. But wherever his exclusive rights of property in them, can be of no real appreciable value to him, the law will not protect them; but will presume that he voluntarily abandons them.

In other words, wherever an exclusive right of use would be more profitable to the author, than a right in common with the rest of mankind, there his exclusive right is presumed to be retained. But wherever a right of use, in common with the rest of mankind, would be just as profitable to the author, as an exclusive right, there his exclusive right is presumed to be abandoned, and only a common right retained.

Now, in order to determine what exclusive rights of property, in his ideas, can be made more valuable to the author, than a common right, we must determine, in the case of each idea, or collection of ideas, what profitable use he could make of an exclusive right, over a common right; or, on the other hand, what [128] profits he would lose, by suffering his exclusive right to become common to all. And this question is one, which, in practice, could generally be very easily settled.

In the case of the most important labor-saving inventions, for example, the exclusive right of using them, is evidently more valuable than a right in common with the rest of mankind; because an exclusive right will sell for a price in the market; whereas a common right will not. An exclusive right will also be more profitable for the inventor, if wish to use it himself, than a common right; because it will enable him to avoid competition, and thus obtain a higher price for his labor. For these reasons the law will presume, in the case of such inventions—however fully they may be described in books, and however unreservedly such books may be sold in the market—that the authors choose to retain their exclusive right in them, for purposes of labor. At the same time, perhaps, the law will not presume that the inventors retain the exclusive right to their inventions, for literary purposes—that is, for the purpose of writing books describing them—because the profits, on the sale of such books, may be insignificant; and because also it may be for the interest of the inventors to have their inventions described by others than themselves, and thus more widely advertised for sale.

Nevertheless, in the case of most of the ideas described in books, the only exclusive right, that can be of any profit to the author, over a common right, is the right of using them for literary purposes. This, therefore, is the only exclusive right, which the law will ordinarily presume that the author wishes to retain.

The ideas, described in print, may be classed—with reference to the rights retained, and the rights abandoned, by the authors—under three heads.

In the first class may be reckoned those labor-saving, and other valuable, inventions, of which the authors retain the exclusive use, for the particular purposes for which the inventions are specially designed; but of which the authors do not, ordinarily, [129] retain the exclusive use, for literary purposes—that is, for the purpose of writing descriptions of them.

In the second class may be reckoned those ideas, of which the authors retain the exclusive use, for literary purposes, but not for any other purpose.

In the third class may be reckoned those ideas, of which the authors retain no exclusive use whatever.

But let us explain, a little more particularly, the principles of law applicable to each of these classes of ideas.

1. As an example of the first class of ideas, take the invention of the steam engine. The invention itself is of immense value, for purposes of labor; but a book, describing it, would probably yield little or no profit, as a merely literary enterprise. If, therefore, the inventor of the steam engine were to write a book, making the invention fully known to the public, the law would nevertheless presume that he reserved his exclusive right to the invention, for use as a motive power; but, at the same time, it would probably presume that he abandoned his exclusive right to it, for literary purposes; and that he was willing it should be freely written about, by all who might choose to write about it. And even if other men should reprint his own description of it, without his consent, very likely the law would not say that any wrong had been done him; but rather a benefit, inasmuch as his invention would thus be more widely advertised, for sale, than it otherwise would be.

But if any other man, than the inventor, were to write a book describing the steam engine, the law would most likely presume that he wrote it solely as a literary enterprise; and that he therefore wished to retain his exclusive right of property in it.

2. In the second class of ideas—those, in which the authors retain an exclusive right, for literary purposes, but not for any other use—may be reckoned an infinite number of ideas, that are really useful to mankind, as guides for their conduct, under various circumstances in life; but which, nevertheless, have singly no appreciable market value, for use. Take, for example, [130] the ideas, that the earth is a globe; that it turns on its axis; that it revolves round the sun; that honesty is the best policy; that industry and economy are the roads to wealth; that certain kinds of labor are injurious to the health; that certain kinds of food are more nutritious than others; that certain diseases are contagious, and others not; that certain animals are untamable and dangerous; that other animals are harmless, susceptible of being domesticated, and made subservient to the uses of man; that certain systems of philosophy and religion have more truth in them than others; and an infinite number of other ideas, which are valuable to mankind for use; but which, nevertheless, if offered for sale singly in the market, would not bring a farthing apiece, from one man in a thousand.

The only way, then, in which any exclusive property, in ideas of this kind, can be made valuable to the authors, is by using them for literary purposes, instead of attempting to sell the ideas themselves singly for use.

Since, then, this right to use one’s ideas, of this kind, for literary purposes, is the only exclusive right of property, that can be of any practical value to the author, it is the only exclusive right that the law will presume that he intends, or desires, to retain, when he sells a book describing them.

This exclusive right of using ideas for literary purposes, is what we call the copyright. And this is the only exclusive right of property, which authors usually retain, or wish to retain, in the ideas they describe in their books.

But, because a man has the exclusive right of using his own original ideas, for literary purposes, it must not be inferred that authors have any exclusive right of property of this kind, except in those particular ideas, which they themselves originate. Now it is only a very few of the leading, primary, and most important ideas, described in books, that are original with the authors of the books; inasmuch as the elementary truths, in nearly all departments of knowledge, have been long known to mankind. An author’s originality is, therefore, generally confined to secondary [131] and subsidiary ideas, such as the combination, arrangement, and application of the leading or elementary ideas, and the style of the composition describing them. And it is only in these original ideas of his own, that the law gives him a copyright, or any exclusive property.

3. Among the examples of the third class of ideas—in which no exclusive right whatever is retained—may be reckoned a large proportion of the ideas, which appear in newspapers; especially the accounts of passing events, and comments thereon; which ideas have an interest to-day, but will be stale to-morrow; and an exclusive right in them will never be of any appreciable value to the author, either for the purpose of being reprinted, or for any other use. In this case the law presumes that the author retains no exclusive right of property in them; simply because such exclusive right would be of no practical value to him.

If, however, these ideas have any particular intellectual merit, which would add to the author’s reputation, the law will presume that he wishes to retain his exclusive right of property in them, so far as is necessary to secure to himself the reputation of authorship, even though no direct pecuniary advantage is to be derived from them. The law, therefore, will require that those, who reprint such ideas, should ascribe them to the true author, instead of printing them as their own. Of course this requirement applies only to such ideas, as have such an essential and important merit, as the authors may reasonably desire the credit of. It would not apply to ideas too trivial to be worthy of a reasonable man’s consideration. To such, the principle, that the law does not take care of trifles, would apply.

I shall now take it for granted, that it has been sufficiently shown, that a book, and the ideas described in it, are, in fact, and in law, distinct commodities; that the sale of the former implies no sale of any right of property in the latter, beyond the mere possession and mental enjoyment of them; that, with these exceptions, the law presumes that an author desires to retain his exclusive right in all his original ideas, for all purposes whatsoever, [132] for which such exclusive right will have an appreciable value, pecuniarily or otherwise, over a right in common with the rest of mankind.

This presumption of law, in favor of the author, arises, without any special notice being given, in the book, that he wishes to retain his copyright, or any other exclusive right, in the ideas described. It arises, in the case of ideas, on the same principles, and for the same reasons, as in the case of material property, viz.: that the ideas are the products of labor; that they are naturally the property of the producer; and that it is as unreasonable to presume that he would gratuitously part with any valuable rights in them, as it is that he would gratuitously part with any equally valuable rights in his material property.

It is not legally necessary, therefore, that an author should give notice, in his book, that he retains his copyright, or any other right in the ideas described. Indeed it might, in some cases, be dangerous to give the notice “copyright reserved;” that is, in cases where still other rights, than the copyright, were intended to be reserved; because such notice, unaccompanied by any other special reservation, might imply that no other rights, than the copyright, were reserved.

But although it might be dangerous to give notice, simply of a reservation of “copyright,” where still other rights were intended to be reserved—as in the case of books describing valuable mechanical inventions, and also in the case of dramatic and musical compositions, where the right of performing the pieces was intended to be reserved—it might, nevertheless, be highly judicious, to give notice of the reservation, both of the copyright, and of all other rights intended to be reserved, in order to guard against any presumption of abandonment, in doubtful cases, against the will of the author.

Taking it for granted that the question, Whether the sale of a book unreservedly, implies a sale, for use, of the ideas described in it? has now been sufficiently answered, I proceed to answer another question, very similar in character and importance, to [133] wit: Whether if an inventor make an unreserved sale of a machine, constructed in accordance with his invention, such sale will include the sale of a right to construct other similar machines? or only a right to use the particular machine sold?

It will be seen at once that much of the same reasoning, that is applicable to books, and the ideas described in them, is applicable also to machines, and the ideas, after which they are constructed. For example, the machine, and the idea, after which it is constructed, are, in fact and in law, separate and distinct commodities; as much so as are a book, and the ideas described in it. The machine does not literally contain the idea, after which it was constructed; although we are in the habit of speaking of machines in this manner. The idea does not exist in the machine; it exists only in the mind. The machine consists only of wood, iron, and other corporeal substances. The forms and shapes, given to those substances, are only effects, produced upon them by a combination of causes, to wit, the idea of the inventor, and the physical labor of the machinist; just as the order, arrangement, and collocation of the printed letters in a book, are effects produced by a combination of causes, to wit, the ideas of the author, and the physical labor of the printer. In both cases—that of a machine, and that of a book—we can ascertain the nature of the causes, (that is, the ideas, and the physical labor,) by an examination of their effects. But the causes and their effects are not, therefore identical. They are, in fact and in law, distinct entities; as much so as are any other causes and their effects. The machine, too, as a whole—that is, the wood, iron, or other corporeal substances, with the effects produced upon them, or the shapes given to them, by the idea of the inventor and the labor of the machinist—is clearly, in fact and in law, a distinct entity from the idea of the inventor, which can exist only in the mind. And the sale of the machine, therefore, implies no sale of the inventor’s idea, any farther or otherwise than this, to wit. The sale of the machine implies a right to use it; and the right to use it, implies a right to use the idea of the [134] inventor, so far as it may be necessary to use it, in order to use the machine; but no farther.

The same question, in substance, may now be asked, in regard to a machine, that was before suggested in regard to a book, viz.: If a machine, and the inventor’s idea, after which it was constructed, be, in fact, and in law, distinct commodities; and if the machine do not literally contain the inventor’s idea; how can his rights of property, in that idea, be trespassed upon, by another person, in constructing or using a similar machine—that is, a machine which does not contain any idea whatever?

The answer is the same as in the case of the book, viz.: that, although the machine do not literally contain the inventor’s idea, yet the machine cannot be constructed without using his idea. That idea is an indispensable guide to the construction of the machine. And this use of the inventor’s idea, without his consent, is a violation of his rights of property in it.

So, also, in operating a machine, the operator uses the inventor’s idea; for he designs and endeavors to produce the same results, as those intended by the inventor, and by the same process, as that devised by the inventor. This, therefore, is a use of the inventor’s idea, and is consequently a trespass upon his rights.

The same principles apply to sculpture, painting, drawing, &c. A statute, and the design after which it was sculptured, are distinct commodities; and the sale of the statute does not convey any right to use the sculptor’s design, for the purpose of making a copy. The same is true of paintings and drawings, the designs of which can be made of sufficient practical value to the authors, to be entitled to be recognized, by law, as objects of private property.

It is not legally necessary to give notice, on a machine, that the invention is reserved; because, if the invention be such, as that the exclusive use of it will be of any really appreciable value to the author, every body is bound to presume that it is reserved. But where the fact of value is at all doubtful, it may be of utility to give the notice, in order to guard against the doubt.

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CHAPTER V.: THE POLICY OF PERPETUITY IN INTELLECTUAL PROPERTY.

As a matter of public policy, the expediency of allowing a man a perpetual property in his ideas, is as clear as is that of allowing him a perpetual property in material things.

What is the argument of policy against a perpetual property in ideas? Principally this—that the world will get ideas cheaper, if they get them for nothing, than if they pay for them.

This argument would be just as good in favor of abolishing the right of property in the material products of men’s labor, as it is for abolishing it in intellectual ones. Take wheat, for example. If the right of property in wheat were abolished, the world would get the stock of wheat, that is now on hand, for nothing. But the next crop of wheat would be a small one; and people would then learn, that in the long run, the cheapest mode, and the only mode, of procuring a constant and ample supply of wheat, is to acknowledge that wheat is the property of the producers, and then to buy it of them by voluntary contract. Under the system of a right of property in wheat, there will be a perpetual supply of wheat; because men have a sufficient motive to produce it; and a man can always procure enough for his uses, by giving a reasonable proportion of the products of his own labor in exchange. But under the system of no right of property in wheat, he would be able to get wheat at no price whatever, after the present stock should be consumed; simply because men would have no sufficient motive to produce wheat, unless their right of property in it were acknowledged.

The principle is the same in regard to valuable ideas. We can get the free use of the present stock of ideas, by destroying the [136] rights of the producers to their property in them. But if we do, the next crop of ideas will be a small one, as in the case of the wheat.

If we want no new ideas, but only wish to get the use of the present stock for nothing, without regard to justice, the true way undoubtedly is, to abolish all rights of property in them. But if we wish to induce men of inventive minds to go on producing new ideas, the true way certainly, if not the only way, is to respect their rights of property in those they have already produced.

But governments have the idea that intellectual men—especially authors and inventors—can be induced to work, if they can but be permitted to enjoy a partial or temporary property in the products of their labor; while it is conceded that all the rest of mankind should enjoy a full and perpetual property, in the products of theirs. But there are the same reasons of policy, for allowing men a perpetual property in their ideas, that there are for allowing them a perpetual property in the material products of their labor.

What are the great incentives to enterprise and industry in the production of material wealth? Plainly these—the thoughts that whatever a man acquires, will be his during life, or during pleasure, and that, at his death, whatever he leaves, will go to those whom he wishes to provide for. These are the all-powerful springs, and almost the only springs, that keep all physical industry in motion, and supply the world with wealth.

The policy of nature, for supplying mankind with subsistence, is, that each man shall labor, first and principally, for himself, and those most dear to him; and only secondarily and discretionally, for mankind in general; unless, indeed, his labors for mankind at large, can be made productive of support to himself, and those naturally dependent on him. In this way, each man laboring for, and supplying, those nearest to him, all are labored for, and supplied. This policy is dictated and impelled by the natural strength of the human affections, which are uncontrollable by [137] human statutes; and no adverse policy, devised or dictated by lawgivers, such as that of requiring a man to work for mankind at large, instead of working for himself and his friends, can either stifle these natural motives, or supply others of any thing like equal power over the energies of men.

But how would these motives be weakened, and nearly deadened, by the knowledge that, at the end of a brief period, the products of a man’s labor would be taken from him, against his will, and given to men, whom he never knew, or knowing, does not love? And how would the general production of wealth be checked, and nearly paralyzed, by the establishment of such a principle, as a universal law? How many fruitful farms, for example, would ever have been reclaimed from their wilderness state, if those, who felled the trees, and subdued the soil, had known that, after a period of fourteen years, the fruits of their labors would be taken from them and their families, and be made the common property of the world? How many substantial, comfortable, and elegant dwellings would ever have been erected, if those, who built them, had known that, after occupying them, with their families, for fourteen years, they would be required to admit the world at large to an equal occupancy with themselves? The universal, and the universally known, nature of man answers these questions; and tells us that, with such a prospect before them, mankind, as a general rule, would labor only for the production of such things, as they and theirs could actually consume within the time they were allowed to possess them; that they would not labor for the benefit of robbers, intruders, or strangers; that they would therefore attempt none of those accumulations for the future, which each man and each generation of men now attempt, under the inducements furnished by the principle of perpetual property, in one’s self and his descendants.

The consequence, therefore, of such a principle would be universal poverty. Men would produce only as they consumed. And this state of poverty would continue so long as the right of individual and permanent property was denied. But let the right [138] of individual and perpetual property, in the products of one’s labor, be acknowledged, and the whole face of things changes at once. Each man, secured in his right to what he produces, commences to accumulate for the benefit of himself, and those whom he desires to protect. He controls and enjoys his accumulations during life, and at death leaves an important portion of them to his children, to aid them in making still greater accumulations, which they, in turn, leave to their children. And this process continues, until the world arrives at that state of wealth, in which we now find it; the whole world enriched by the wealth of individual proprietors; instead of the whole world being impoverished, as in the other case, through the impoverishment of the individual producers of wealth.

Such being the law of man’s nature, imperatively controlling his motives and energies, there is no reason why the true policy indicated by it—that is, the policy of perpetual property—should not be applied as well to the producers of intellectual, as of material, wealth. There is no reason why the principle of individual and perpetual property, in ideas, will not prove as beneficient towards the whole human family, by stimulating the production of valuable ideas, as does the same principle when applied to corporeal things. Men produce valuable ideas just in proportion as they are furnished with the necessary facilities, and stimulated by adequate motives. This they do under the influence of the same law, which stimulates them to the production of material wealth. And the increase of intellectual wealth would be as much accelerated, by the adoption of the principle of perpetuity, in reference to intellectual property, as is the increase of material wealth, by the adoption of the same principle, in reference to material property. On the other hand, the production of intellectual wealth is as much checked, and discouraged, by the systematic plunder of the producers, as the production of material wealth would be, by the systematic plunder of its producers. The production of intellectual and of material wealth obeys the same laws in these particulars. And these laws are utterly [139] irrevocable by human enactments. Government cannot compel the Arkwrights, and Fultons, and Morses to invent their great ideas, and give them to mankind. It can only induce and enable them to do it. And this the government must do, or mankind must lose the benefits of the ideas themselves.

Such, then, being the inevitable conditions, on which alone these valuable ideas can be obtained, the questions for society to settle are, simply, whether government shall encourage the production of these ideas, by protecting them as property to their producers? And whether, when the public want them, they shall be necessitated to buy them, and pay for them, as for other property? Or whether the production of them shall be discouraged and suppressed, by the systematic and legalized robbery of the producers?

At present, the United States, England, and some other nations say, by their laws, “we will give this property a partial protection—that is, the protection of civil, but not of criminal, laws; and even that protection it shall have only for a brief period; after which, it shall be a subject for free plunder by all.”

What effect this system has upon the production of valuable ideas, may be judged of, by the effect, which a similar system confessedly would have, upon the production of wealth, by the physical industry of men. If such a system would discourage all physical industry, it now discourages all intellectual effort, in a corresponding degree. And, consequently, we now have a correspondingly less number of valuable inventions, than we otherwise should have. Under a system of full protection—that is, the protection of both civil and criminal laws—and of perpetual property in the producers, we should doubtless have five, ten, twenty, or more times as many valuable inventions, as we now have. This may be safely predicated, both from the general principles governing the production of all valuable commodities, namely, that they are produced in quantities corresponding to the protection afforded them, and the prices paid for them; and also from an observation of the present condition of inventors generally, [140] and of the difficulties they encounter in bringing out their ideas. What is that condition? And what are those difficulties? In the first place, the general condition, of both authors and inventors, is that of poverty. Doing incomparably more to enlighten and enrich mankind, than any other persons, they are probably, as a class, poorer than any other industrious class in the community. This is all owing, especially in the case of inventors, to the miserable protection afforded to their property, and the consequently small price they obtain for their labor. In the second place, the difficulties they experience in bringing out their ideas, arise solely from their poverty, and their inability to obtain the necessary capital with which to make their experiments, and upon which to live while making them. This inability to obtain capital, results wholly from the want of protection given to such property; whereby the value of each inventor’s prospective property, in his inventions, is rendered so precarious as to be a wholly inadequate security for investments. The natural risks of an inventor’s failure to make an invention, interpose such an obstacle to the procuring of capital, as can be overcome only by the prospect of large profits in case of success. But when this prospect of large profits, in case of success, is cut off by the inadequate protection afforded to the property to be produced, and the brief period for which even that protection is afforded, there is no adequate security left, as a basis for investments. And nearly all capitalists view the matter in this light. Inventors, therefore, as a general rule, are unable to procure capital. The consequence of this want of capital is the same, in the case of inventors, that it is in the case of any of the other industrial classes; for an inventor can no more produce ideas, without a money capital, than other men can produce houses, ships, or railroads, without a similar capital. The result is, that a large portion of the inventions, that otherwise would be made, are never brought out; and the world loses the benefit of them. The operation of these causes, in crippling the powers of inventors, is so general, so nearly universal, and so severe, as to have [141] become a matter of the most public notoriety. Yet the true remedy, and what must, in the nature of things, be the only true and practicable remedy, is seldom proposed, and has never been adopted.

If the property of inventors were fully protected, and made perpetual, they would find no more difficulty in obtaining the capital necessary for their purposes, than other men do in finding it for theirs; because, although there may be more risk as to the success of a single experiment of theirs, than there is of the success of the ordinary operations of business, yet, in the long run, their labors would be much more lucrative, than the business of other men; and this prospect of superior profit, would enable them easily to command the necessary capital. Invention would become a regular business, a distinct profession, on the part of large numbers of men who have a talent for it, instead of being, as now, little more than the merely occasional occupation of here and there an individual. The number of inventors would thus, not only be greatly increased, but individual inventors would produce many more inventions than they now do. The number of persons, who have a natural capacity for invention, is probably as great as the number of those, who have a natural capacity for poetry, painting, sculpture, or oratory. And doubtless as many have been disabled and dissuaded, by want of means and inducements, from becoming inventors, as have been disabled and dissuaded, by the same causes, from becoming poets, painters, sculptors, or orators. But under a system of full protection, and perpetual property in their inventions, these naturally born inventors would nearly all devote themselves to invention, as their most congenial and lucrative pursuit. And the result doubtless would be, that we should have ten, twenty, and most probably fifty, or one hundred times as many, valuable inventions, as we now have.

Mankind do not perceive their true interests on this subject; and they are paying the penalty for their blindness, in the heavy toil, and the lack of wealth, which so large a portion of them [142] endure. They have not yet fully learned that their brains, and not their hands, were designed for the performance of all heavy and rapid labor—that is, through the medium of labor-performing inventions. Yet such is the truth, as witness the water wheels, the steam engines, the electric telegraphs, the power looms, the spinning machines, the cotton gins, the carding machines, the sewing machines, the planing machines, the printing presses, the railroads, the vessels propelled by wind and steam, and the thousands of other inventions, (very many of which are so old, and in such common use, that we are apt to forget that they are inventions,) by means of which the power and speed of labor are so wonderfully, and almost miraculously, increased. Compare the speed, and the amount of the labor, performed by these instrumentalities, with the speed, and the amount of the labor, performed by men, without the use of these or other inventions; in other words, compare the labors of civilized men, accomplished through the instrumentality of labor-performing inventions, with the labor of savages, accomplished with the hands, unaided by such inventions; and we shall see at once the difference between men’s brains and their hands, as instruments of labor. If, now, the products of men’s brain labor, were as fully secured to the producers, as are the products of their hand labor, we should see such a development of brain labor, (in the shape of labor-performing inventions,) and of consequent wealth, as the wildest dreams of men have doubtless never conceived of.

Another consideration, that specially commends these inventions to the protection of the law, is, that the wealth, that results from them, cannot be monopolized by the owners of the inventions; but is generally distributed, with great impartiality, among all classes of society, from the richest to the poorest. How is this done? In this way. If the inventor becomes the manufacturer of the thing invented, he, like all other men, finds it for his interest to make quick sales, at small profits, rather than slow and small sales, at large profits; because he will thereby derive the greatest aggregate income from his invention. If, on the [143] other hand, he chooses to license others to manufacture the thing he has invented, the same principle operates; and he finds it for his interest to license a large number of manufacturers, at low prices, rather than a small number, at high prices. He thereby insures such a competition between them, as will compel them to make quick and large sales, at small profits, rather than slow and small sales, at large profits.

If the thing invented be of much importance, and one for which there is a large demand in the community, the inventor generally finds it for his interest to license others to manufacture it, rather than become the manufacturer himself; because he thereby derives a greater profit from his invention, and also finds leisure and means for the more agreeable and lucrative employment of making still other inventions, the use of which he will sell or rent in like manner.

Thus, in all cases, the necessary operation of the laws of trade, or the principles of self-interest, on the part of the inventor, is to induce him, (either directly, as his own manufacturer, or indirectly, through those whom he licenses,) to insure a supply of the commodity to the whole community, at moderate prices. And this depression of prices is, in most cases, still further enforced by rival inventions, which accomplish the same results by different processes. In this way, the wealth produced by an invention, is spread abroad amongst the people at large, at such low rates of compensation, that the inventor secures but a very small portion of that wealth to himself, to wit: that portion only, which is paid him for the privilege of manufacturing and using the thing he has invented. And that portion, I presume, is certainly, on an average, not more than one per centum of the wealth actually created by his invention.*

[144]

Thus, in effect, an inventor really gives, outright to society, ninety-nine one-hundredths of all the wealth, which his invention produces. Yet society are so unwise, impolitic, ungenerous, and unjust, as to wish to deprive him even of the one per centum, which he wishes to retain, of the products of his labor. And after a period of fourteen years, they do deprive him of it.

Other producers, in their exchanges with their fellow men, give only dollar for dollar; and yet the government, by both civil and criminal laws, protects the products of their labor to them in perpetuity—that is, to them and their heirs and assigns forever. But inventors, who produce incomparably more than other men, and who, in their exchanges with their fellow men, are habitually accustomed to give one hundred for one, are systematically discouraged, disabled, and even deterred from producing inventions, by being denied all but an imperfect protection, and allowed even that only for a brief period; after which their property is made free plunder for all.

To ask if this be justice, would be an insult to the reason of all. The question now is, whether it be good policy for the public themselves, to discourage and suppress, by this systematic and wholesale robbery, those producers, who, if protected like other men, will give them an hundred for one? Whether the people at large can afford thus to impoverish themselves, by discouraging and suppressing the production of those inventions, which do nothing but enrich them? Can they afford to deprive themselves of the benefits of those inventions, which they otherwise might have, by refusing to inventors even one per centum of the wealth they produce? Can they, in other words, afford to lose the ninety-nine per centum themselves, to avoid paying the one per centum to the producers? These inventions cannot, and will not, be produced in adequate numbers, unless adequately paid for. That is a fixed principle in the natural law of production. How much clear gain, then, (for that is the true question to be solved by them,) will mankind realize, in the long run, from refusing to trade with, or encourage, a class of producers, who offer them, in [145] exchange, a hundred for one? The world has long ago decided, that it is the wisest policy to protect the property of, and thereby encourage, those merely ordinary producers of material wealth, who, in their exchanges with their fellow men, demand dollar for dollar. Yet, strange to say, the world has not yet learned, that it is an unwise policy, to systematically plunder, and thereby systematically discourage, those extraordinary producers, (the inventors,) who, in their exchanges with their fellow men, ask but one dollar in exchange for a hundred! The fabled folly of starving the hen, that laid the golden eggs, is fully realized in the conduct of society in plundering and starving their inventors. These labor-saving and labor-performing inventions are the great fountains of wealth, without which mankind, (if the race could subsist at all,) would be only a few wretched savages, scarcely elevated, either in mental development, or physical comfort, above the condition of wild beasts. Yet they pretend to regard it as an act of both policy and justice, to outlaw, plunder, and treat as an enemy, every man who dares to open one of these fountains for their benefit—as if it were a moral duty, and would be a pecuniary profit, to deter and prevent him, and all others like him, from ever doing for them again a deed of such transcendent beneficence! To be consistent in this policy, they should make it a capital offence, for any man to supply the wants, relieve the toil, multiply the comforts, promote the health, prolong the life, enlighten the minds, or increase the happiness, of his fellow men.

The impolicy and inconsistency of governments, on this subject, are as palpable and enormous as their injustice. Take, for example, the governments of England and the United States. The so called statesmen of England have heretofore attempted to improve the agriculture of their country. And how did they proceed? Did they encourage chemists to prosecute their researches, and make experiments, to discover new processes or substances, by which the soil might be cheaply fertilized, and made more productive? Did they encourage ingenious men to invent new implements, by the use of which men and animals [146] might perform more agricultural labor than they could before? Did they encourage either of these classes of inventors, by securing to them, by adequate laws, their just and perpetual property in their inventions? Such laws as would enable them to secure to themselves even one per centum of the wealth their inventions would create? No. They did nothing of this. On the contrary, they nearly outlawed their property, by giving it only the partial protection of civil laws, and that for a period of but fourteen years. This is all the encouragement they gave, to those extraordinary wealth producers, the inventors, who were willing and ready to give to the people of England an hundred pounds worth of agricultural products, in exchange for one pound in money. But, in place of thus giving any further or better encouragement to inventors, they proceeded to improve the agriculture of the nation, by laying duties of, say, fifty per centum, on an average, upon all breadstuffs imported from foreign countries; the effect of which was to enable the domestic agriculturalist to demand and obtain, of his fellow men, for all his agricultural productions, fifty per centum more than their just market value. In other words, the government virtually levied, upon the people at large, a tax equal to fifty per centum upon the true value of all the agricultural commodities produced and sold in the kingdom, and gave that enormous amount of money annually, as a gratuity, to those merely ordinary agriculturalists, whose industry was no more meritorious or productive, than the industry of those other people, who were thus taxed, or rather robbed, for their benefit. In still other words, the government, under pretence of promoting and improving the agriculture of the nation, virtually compelled the people at large to pay, to the merely ordinary agriculturalists of England, a pound and a half in money, for every pound’s worth of food produced and sold in the kingdom; while, at the same time, it discouraged, outlawed, plundered, and thus in a great measure drove out of market, those extraordinary agricultural producers, the chemists and inventors, who were anxious and ready to furnish food to the people of [147] England, at the rate of a hundred pounds worth of food, in exchange for one pound in money.

It is quite easy to see how this system of wholesale robbery was adapted to fill the pockets of the merely ordinary agriculturalists, at the expense of men, whose industry was equally deserving and laborious with their own. But it is not so easy to see what extraordinary adaptation it had, to advance either the art, or the science, of agriculture itself. Yet this was the mode, in which the so called statesmen of England attempted to improve the agriculture of their country. And they persisted in the attempt until the fear of civil war compelled them to abandon the system. But there is still equal, and indeed vastly more, need of a civil war, (if the object cannot be otherwise attained,) to compel the government to protect the property of, and thereby encourage, those extraordinary agriculturalists, the inventors, (including chemists,) who virtually offer to feed the people of England for one per centum of the existing prices.*

The statesmen of the United States of America attempted to promote the manufacturing arts in their country, by a system of legislation, similar to that adopted in England for the promotion of agriculture. They, in a great measure, outlawed the property of, and thereby discouraged, those inventive men, who would have devised new processes in the mechanic arts, whereby great wealth could be produced by a small amount of human labor; and who, as a compensation for their inventions, would have demanded but one per centum of the wealth those inventions would create. Having done this, they levied such duties on imported manufactures, as would make it necessary for the people at large to purchase their manufactured commodities, of the domestic manufacturer, (a mere ordinary producer, whose industry was no more meritorious than that of other men generally,) at the rate of, [148] say, fifty per centum above their true market value. In other words, they compelled the people of the country, to buy their manufactured commodities of the mere ordinary producers, and pay them one dollar and a half in money, for every dollar’s worth of goods; and at the same time outlawed, plundered, and thus discouraged, and in a great measure drove out of market, those extraordinary manufacturers, the inventors, who would have supplied the people with the same commodities, at the rate of one per centum on existing prices.* And they persisted in this policy until, as in England, the imminent danger of civil war compelled them, not to abandon the system, (for the system is not yet abandoned,) but to mitigate its severity. But a civil war is needed still more now, than then, (if the object cannot otherwise be secured,) to compel the government to protect the property of, and thereby encourage, those extraordinary manufacturers, the inventors, who in their exchanges with their fellow men, virtually give a hundred dollars worth of manufactured commodities, for one dollar in money.

The system of policy thus enforced upon the people, in England and the United States, is an example of that pretended wisdom, by which the affairs of nations are managed; and which, it is claimed, is far superior to the wisdom of justice! When will mankind learn—and compel their governments to conform to the knowledge—that justice is better policy than any scheme of robbery, that was ever devised? And that the true way of stimulating equally, justly, and to the utmost, both the physical and mental industry of all men, in the production of wealth, is simply to protect each and every man equally, in the exclusive and perpetual right to the products of his labor—whether those products be ideas, or material things?

If one tenth, (doubtless I might say one hundredth,) of those [149] immense sums, which government has robbed from the people of England, and given, as a gratuity, to those ordinary agriculturalists, whose industry had no merit above that of other men, had been paid to chemists, who should have discovered new processes and substances for cheaply fertilizing the soil, and making it more productive; and to those mechanical inventors, who should have devised superior implements and instrumentalities for agricultural labor; who can rationally doubt, that the agriculture of England, both as a science and an art, would have been immeasurably in advance of what it is now? Or if one tenth, (I think I might say one hundredth,) of those many hundreds of millions of money, which in the United States, the government has plundered from the people, and given, as a gratuity, to those ordinary manufacturers, whose industry had no merit above that of other men, had been paid to those inventors, who should have devised new processes of manufacture, new machinery, new motive forces, and other instrumentalities for performing manufacturing labor, new articles to be manufactured, and new materials susceptible of manufacture; what rational man can doubt, that the manufacturing arts would, at this day, have been immeasurably in advance of what they now are?

But, with a considerable portion of mankind, robbery has been the favorite mode of acquiring wealth in all ages. All men desire exemption from severe toil; and the strong have usually sought to obtain it by robbing the weak. Thus strong nations have always been in the habit of making war upon weak nations, really from motives of plunder, though other motives may have been assigned. So also the rich and strong classes in a nation, have always been in the habit of combining, for the purpose of plundering the weaker classes of the same nation, by unequal and rapacious modes of taxation, and numerous other devices. In both cases the robbers seem not to have been aware, and probably have not been aware, that if all mankind were permitted to live in peace, and each individual to enjoy the fruits of his own labor, (including ideas, as well as material property,) the wealth of the [150] world would increase at a rate that would enrich substantially all its inhabitants, incomparably faster even, than the strong can now enrich themselves, by the robbery of the weak. Take, for example, the cost, to the conquerors, of any war, ancient or modern, that has been carried on for purposes of plunder. Suppose one tenth of that cost, instead of being expended in war, had been paid to inventors; does any one doubt that, for that sum, inventions could have been produced, that would have added more to the wealth of the nation, than was gained by the conquest? And these inventions would not only have enriched the nation that produced them, but would have been also communicated to other nations. Thus many nations would have been enriched, at one tenth of the cost, at which one nation enriched itself, by the subjection and robbery of another.

At the present day, this policy of robbery is still predominant in the world; so much so, that nearly all the civilized nations of the world, keep immense armies, or navies, or both, for the double purpose of robbing other nations, and of protecting themselves against similar robbery. If one tithe of the money, that is annually paid for these purposes, by the several nations of Europe, were paid to inventors, these several nations might not only live in peace with each other, but each and all would very speedily attain to a wealth, greater than conquest ever aimed at, or conquerors ever conceived of.

To sustain the literal truth of this calculation, let us consider the wealth acquired by conquest, compared with that created by mechanical inventions. Of course, neither can be estimated with any thing like precision; but I apprehend it would be entirely within the limits of truth to say, that all the wars of Europe and America, in the last thousand years, have not brought as much net wealth to the conquerors, as has been created by the steam engine, and its subsidiary inventions, in the last ten, or even five, years. I apprehend also that all the British conquests in India, within the last hundred years, and all the oppressions practised, within that time, upon 100,000,000 of people, have not succeeded [151] in extracting so much net wealth from that country, as has been created by the spindles and looms of England, in the last ten, or perhaps even five, years.

If these conjectures be true, or any thing like the truth, they ought to do something towards opening men’s eyes to the comparative policy of encouraging inventors, and supporting soldiers. And when it is considered that all these wars have been carried on, at the instigation and dictation of so called statesmen, we have an opportunity to judge, whether statesmen and soldiers, or inventors, are the real benefactors of mankind, and deserving of their support.

I imagine that few people stop to consider how large a proportion of the wealth, now existing in the world, is the product of labor-performing inventions. I recently saw it estimated, by a most respectable authority, that the steam engine had quadrupled the wealth of the United States. How near the truth this estimate may be, I do not venture to assert. But it is probably sufficiently near the truth for the purposes of this discussion. Now it is hardly fifty years, since the steam engine was brought to such perfection, and put into such extensive operation, in the United States, as to contribute very materially to the wealth of the country. Yet it is now said that it has quadrupled that wealth!

And how much have the people of this country ever paid to the inventors of the steam engine, in return for the immense wealth, which it has created? How much! It can hardly be said that they have paid any thing. If they have paid any thing, the amount has been so utterly contemptible, as that no one, who has any sense of shame, or any sentiment of justice, could hardly wish to see the amount put in print. But has such meanness and injustice been a wise policy for the people themselves? No. If they had paid to the inventors of the steam engine but one per centum annually of the wealth that invention was creating, they would thereby have given such a stimulus to invention, that we should doubtless, long before now, have had in [152] use other motive forces far cheaper, safer, and better than steam. And what would have been good policy towards the inventors of the steam engine, would be good policy towards all other inventors. The amounts, that would be paid them, under a system of perpetual property, and full protection, would be, as we have before supposed, but one per centum of the wealth created by them. This one per centum is certainly but a trifle, a mere bagatelle, for the people to pay, out of the wealth created for them, and given to them, by the inventors. Yet this trifle, paid by the people, would be fortunes to those receiving it; and would give such encouragement to inventors generally, that inventions would be multiplied with a rapidity, of which we have now little conception. And the people would have the benefit of them. But so long as they refuse to pay even one per centum of the wealth produced, for the inventions they now have, it is reasonable to conclude they will have the benefit of but few new ones, compared with the number they otherwise might have.*

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Let us now consider the reasons of policy, other than cheapness, against giving, to the property of inventors, that full and perpetual protection, which is given to the property of other men.

1. It is objected that the property of inventors ought not to have the protection of the criminal laws.

What foundation there is for this objection, I have never heard. And I apprehend that no reason whatever, worthy of a moment’s consideration, can be offered, why the property of inventors should [154] not have the protection of these laws, as fully as any other property. The wilful invasion of another man’s property, from motives either of malice or gain, is a crime; and if crimes against property are to be punished at all, crimes against the property of inventors should be punished as well as others. What security would there be for material property, if the owner had no remedy for trespasses against it, except the privilege of bringing a civil suit for damages, at his own expense? Every one can see that, [155] in that case, property would be overrun with trespassers, who were irresponsible in damages, and who would commit their trespasses with the intent of getting what they could by them, and consuming it, so as to have nothing left, with which to answer the judgments, that might be obtained against them. It would therefore be an utter farce to pretend to protect property at all, without the aid of criminal laws. It would be equivalent to granting a free license to all irresponsible trespassers. Men might as well surrender their property at once, as to think of protecting it by civil suits merely; for they would consume their property in expenses, and would get protection, only when they had no property left to be protected. Yet this is the kind of protection, and substantially all the protection, which our laws, as at present administered, give to the property of inventors. And the consequence generally is, that the expenditure of time and money, required to protect an inventor in his rights, is such as to impoverish him, and make it impossible for him to protect himself to any considerable degree, even during the brief period, for which the government professes to protect him.

Cannot the public see that such things are a discouragement to invention and inventors? And can they not see that, if they wish to encourage inventors, and have the benefit of their inventions, it is plainly for their interest to give, to the property of [156] inventors, the same protection of the criminal laws, which is accorded to material property?

2. It is objected that inventions, if secured to their authors, become monopolies, and therefore ought not to be perpetual.

The answer to this objection is, that all property is a monopoly. The very foundation and principle of the right of property are, that each man has a right to monopolize what he produces, and what is his own. The right of all men to their property, rests on this foundation alone. Monopolies are unjust and impolitic, only when they give to one what belongs of right to others. And it is only to such monopolies that the word monopoly is usually applied. It is an abuse of the term to apply it to a man’s legitimate and rightful property. If an invention do not rightfully belong to him alone, who produced it, he of course should not be allowed to monopolize it. But if it do rightfully belong to him alone, then he has a right to monopolize it; and other men have no more right or reason to complain that he is allowed to monopolize it, than he has to complain that they are allowed to monopolize whatever is their own.

There is no more reason or justice, in applying the word monopoly, in an odious sense, to an invention, which one man has produced, and therefore rightfully owns, than there would be in applying the same term to any other wealth whatever, which one man has produced, and therefore rightfully owns. There is no resemblance at all between such monopolies, and those monopolies, which are arbitrarily created by legislatures; whereby they give to one man, or to a few men, an exclusive privilege to exercise a right, or practice an employment, which other men have naturally and justly the same right to exercise and practice. All such monopolies are plain violations of natural justice; because they take from one man a right that belongs to him, and give it to another. But an invention is the product of individual labor, and of right belongs to him who produces it; and therefore there is no injustice in saying that he alone shall have a right to it—the same right that he has to any other property lie has produced—that [157] is, the right to exercise absolute dominion over it, and to do with it as he pleases, whether it be to keep it, sell it, or give it away.

This objection of monopoly, when applied to inventions, is mere sound without meaning. It has neither reason nor justice to sustain it. It is simply an odious name, wrongfully applied to a just and natural right, by those who want a pretext for taking a man’s property from him, and applying it to their own use.

3. A third objection is, that if inventors were allowed a perpetual property in their inventions, they would become too rich.

This objection, if good against any inventors, can be good only against a very few, in comparison with the whole number; for but a few, if any, could ever acquire inordinate wealth by their inventions. It is certainly unjust to deprive the whole of their rights, simply to guard against extravagant fortunes on the part of a few. But our laws make no distinctions of this kind. On the contrary, they condemn nearly all to indiscriminate poverty, under pretence of preventing any from accumulating immoderate wealth.

If any are to be deprived of their right to a perpetual property in their inventions, clearly it should be those few, and only those few, whose wealth would otherwise become enormous. And even those few, it would be unjust to deprive of their property, the products of their honest labor, until their fortunes had actually reached the utmost limit, to which society sees fit to allow private fortunes to go. To deprive them of their property, before their fortunes have attained the legal limit, simply through fear that they may sometime go beyond it, would be a very absurd and premature robbery.

But what right has society to set limits to the fortunes, that individuals shall acquire? Certainly it has no such right; and it attempts to exercise no such power, except in the case of inventors. To all other persons it says, go on accumulating to the extent of your ability, subject only to this restriction, that you use only honest means in acquiring. Why should any other [158] restriction be imposed upon the accumulations of inventors, than is imposed upon the accumulations of other men? Who has such a right to be rich as an inventor? Who gives such wealth to mankind as he? Certainly, if a man, who not only produces wealth as honestly as any other man, but who produces incalculably more than other men, and who virtually gives ninety-nine per centum of it, as a gratuity, to the public, cannot be allowed to become rich, who are the men who are entitled to that privilege? Other men, who produce hardly any thing, compared with an inventor, and who, if they can avoid it, give never a dollar of their earnings to mankind, without receiving a full dollar in return, are nevertheless allowed to acquire their millions, and indeed to accumulate without restriction, so long as they accumulate honestly. But an inventor, who creates immeasurably more wealth than any other man, and who reserves but one per centum of it to himself, giving the rest to the public, must be limited by law in his acquisitions, and deprived even of that one per centum of his own earnings, lest he become too rich!

Every valuable invention ought to give certain wealth to the inventor; the more valuable the invention, the more wealth should it bring to him. The most valuable inventions, should bring great wealth to the inventors. It is not only just to the inventors, but it is for the interest of society at large, that it should be so; because the production of inventions is stimulated, substantially in the ratio of the wealth of the inventors.

But is there really any danger that, if inventors were allowed a perpetual property in their ideas, any very enormous or immoderate wealth would accumulate in their hands? There are many, and probably insuperable, obstacles to such a result. Let us look at the subject somewhat closely.

In the first place, wealth, in the aspect in which we are now, considering it, is relative. A man is rich, or poor, in proportion as he has more or less than an average share of the wealth of the world. A man, who, in England, would have been very rich, relatively with his neighbors, five hundred years ago, would now, [159] with property of the same nominal value, as then, be very poor, relatively with his neighbors; because his neighbors have now increased so much in wealth. In judging, therefore, whether inventors would become immoderately rich, under a system of perpetual property in their inventions, we must consider what would be the general state of wealth around them, under the same system.

We are to consider, then, that under that system, (of perpetual property in inventions,) the number of inventions would be very greatly augmented, and consequently the general wealth of society astonishingly increased. And it would consequently require vastly more actual wealth, to make a man relatively rich, than it does now. This single consideration will probably be sufficient, with most minds, to reduce the bugbear of enormous wealth, (on the part of inventors,) to about half its original dimensions.

In the second place, few inventions are very long lived. By this I mean that few inventions are in practical use a very long time, before they are superseded by other inventions, that accomplish the same purposes better. A very large portion of inventions live but a few years, say, five, ten, or twenty years. I doubt if one invention in five, (of sufficient importance to be patented,) lives fifty years. And I think it doubtful if five in a hundred live a hundred years.*

Under a system of perpetuity in intellectual property, inventions would be still shorter lived than at present; because, owing to the activity given to men’s inventive faculties, one invention would be earlier superseded by another.

I think these considerations alone ought to diminish the bugbear again to one half its already reduced dimensions—that is, to one fourth its original size.

In the third place, the danger of overgrown fortunes is obviated by still another consideration, to wit, that few or no important [160] inventions are brought to perfection by a single mind. One man brings out an invention in an imperfect state; another improves upon it; another improves upon the improvement, and so on, until the thing is perfected only by the labor of two, three, five, or ten different minds. The complete invention thus becomes the joint property of several different persons, who share in the income from it in such proportions respectively as they can agree upon. The obvious presumption is, that no single individual will ever derive a sufficient income from it, to give him a fortune immoderately, or grossly, disproportioned to the wealth of others.

I think it must be safe now to say, that the bugbear, that was at first so frightful, is no longer a thing to be seriously dreaded.

But a fourth consideration, which must absolutely annihilate the phantom, is this—that if any particular invention should be found to be a source of immoderate wealth to its possessors, that fact would be sufficient, of itself, to turn the minds of inventors, in the direction of that invention; and the result would soon be the production of one or more competing inventions, that would accomplish the same end by a different process; and either supersede the first invention altogether, or at least divide with it the profits of the business, to which it was applied.

I now take it for granted that the objection of inordinate wealth, on the part of inventors, has been fairly disposed of.

4. A fourth objection is, that if inventors were allowed a perpetual property in their inventions, their power would become dangerous to the liberties of the people at large.

This idea, although one that might naturally enough occur to an objector, will yet, on reflection, be seen to be wholly without foundation in reason. Political power depends principally upon the command of wealth; and therefore the considerations, that have just been stated, in answer to the objection of enormous wealth, on the part of inventors, are sufficient to show, that it would be the farthest thing from possibility, for an individual to [161] monopolize enough of any one or more inventions, to give him any dangerous political power.

Another consideration, sufficient of itself to dissipate this danger, is, that the number of inventors would be great, and if any one of them should prove ambitious of a dangerous political supremacy, the power of the others would be sufficient to hold him in check.

Still another consideration is, that, in the nature of things, the people, who receive ninety-nine per centum of all the wealth created by inventions, can be in no danger from the power of inventors, who retain but one per centum of it. Every inventor, therefore, puts into the hands of the people, ninety-nine times more power than he retains in his own hands. How long a time would be requisite for him, to acquire absolute power over the people, by such a process?

A last reflection, worthy of notice, on this head, is, that inventors are not constitutionally ambitious of political power. Such a thing as a great inventor, ambitious of political power, was probably never known. Their ambition is of a far less depraved and vulgar kind. The triumphs, of which they are ambitious, are triumphs over nature, for the benefit of mankind; not over mankind, for the benefit of themselves.

Inventions, instead of tending to the enslavement of mankind, tend to their liberation, by putting wealth and power into the hands of all, and thus liberating each from his dependence upon others.

5. The fifth objection to the principle of perpetuity in intellectual property, is the objection of inconvenience.

It is no doubt an inconvenience, for a man to be under the necessity to buy an idea, when he wants it. But on the other hand, it is a great convenience to the producer of the idea, that he can command pay for it, from those who wish to use it. The inconvenience and the convenience to these parties respectively, are precisely the same, and no other, than they are to the buyer and seller of any other property. And the argument from [162] inconvenience is just as strong, against allowing any right of property in material commodities, as it is against allowing any right of property in intellectual commodities.

But because a man has a natural right of property in every idea he originates, it is not therefore to be inferred, that every man would wish to retain his exclusive right to every idea, however unimportant, that he might originate, and demand pay of every one who wished to use it. It is only a few ideas, that have sufficient market value, to make it worth a man’s while to make them articles of merchandise. It is only a few ideas, that would find any purchasers, if a price were set on them by the owner. If a man were to set a price on merely trivial ideas, he would find no purchasers. The result would be, that a man would retain his exclusive property, only in those ideas, that would sell in the market for such prices, as would make it worth his while to sell them. And for such ideas men can as well afford to pay, as for material things of the same market value.

A few words as to the effects of the principle of perpetuity upon literature.

Literary labor is controlled by the same law as other intellectual labor—that is, the nature of the market determines, in a great measure, the character of the supply. If the law allow an author but a brief property in his works, literature will be mostly of a superficial, frivolous, and ephemeral character; such as ministers to the appetite of the hour, and finds a rapid, but temporary sale—as, for example, romances and other works, which naturally have a short life, and which it requires but little thought or labor to produce. The prevailing literature will be of this kind, for the reason that this is the only kind which can be afforded. If, on the other hand, a perpetual property be allowed, encouragement is given to the production of a widely different class of works, namely, those profound, scientific, and philosophical works, which are written, not merely for the present, but for the future; and which, instead of pandering to the frivolities, fancies, appetites, or errors of the hour, seek to supplant and correct [163] them, by creating and supplying a demand for more valuable knowledge. These works find fewer readers at first, than the others; and the prospect of a more lasting demand for them, is the only chance their authors have of remuneration for the greater labor required for their production. Under the present system, few such works are produced at all; and those generally at great sacrifices to their authors. But if a perpetual property in them were allowed, men, competent to produce them, could afford to produce them; for the reason that their copyrights, if sold, would bring a higher present price, or, if retained, would be good estates for them to leave to their children.

These profound works, which it requires great powers, great patience, and great labor, to produce, are the only works that really do much for the progress of the race, or the advancement of knowledge among men. They are indispensable to the rapid intellectual growth of mankind. Yet, like other things, the products of human labor, they can, as a general rule, be had only for money. The greatest minds inhabit bodies, that must be fed and clothed, like the bodies of other men. The wisest men, too, as well as the less wise, have families whose wants must be supplied. If these wants cannot be supplied by authorship, there is no alternative for these men, but to engage in some of the ordinary avocations of society. The consequence is, that many of the greatest minds, those, who ought to do, and who, under the principle of perpetuity in intellectual property, would do, much for the permanent enlightenment, and the lasting intellectual advancement of mankind, are now, from necessity, occupied in pursuits, for which smaller minds are amply competent—such as the common routine of professional and political life—in which pursuits, they passively adopt, act upon, and thereby promulgate, at best, only such common knowledge, and with it such common ignorance, as the public demand calls for in those labors. This they do, simply because the laws deprive them of the natural and just rewards of those higher labors, for which their capacities and their aspirations naturally qualify them. And they consequently [164] pass through the world, doing little or nothing for its permanent welfare; and really living upon, and assisting to perpetuate, the ignorance, follies, crimes, and sufferings of mankind, solely because the laws virtually forbid them to live by removing them.

It would be easy to follow out this idea, and show more in detail what effect the perpetuity of intellectual property would have upon the progress of knowledge; but the principle is so self-evident, that it can hardly need any further illustration.

No objection can be made to the perpetuity of literary property, on the ground that authors would become extravagantly rich. The great competition among themselves; the short life, which most works would have; and the slow sale of those having a longer life, would all conspire to make it impossible for authors to acquire great wealth. In this respect they would differ from inventors.

Enough has probably now been said, to show that authors will enlighten, and inventors enrich, mankind, if they can but be paid for it, and not otherwise.

Manifestly it cannot be for the interest of mankind, to starve and discourage authors and inventors, if science and art, like all other marketable commodities, are really produced just in proportion to the demand for them, and the prices they bear in the market. Mankind have abundant need of all the knowledge, and all the wealth, which authors and inventors can furnish them. And they can certainly afford to pay for them, at the low prices, at which knowledge is offered by authors, and wealth by inventors; for there are no other means by which such knowledge and such wealth can be obtained so cheaply. Why, then, do not mankind purchase and pay for them at these prices, instead of striving to live upon such a supply only, as they can obtain by niggardly purchases, and dishonest plunder? There is certainly as little sound economy, as sound morality, in the course they pursue on this subject. Why, then, do they continue in it? My own opinion is this.

It is not that mankind at large are so wilfully dishonest, as to [165] wish to deprive authors and inventors, any more than other men, of the fruits of their labors. It is contrary to nature, that mankind at large should be, either so unjust, or so ungenerous, to their greatest benefactors. Neither is it because they are wilfully ignorant of their own true interests in the matter; for it is contrary to nature that any man, honest, or dishonest, should be wilfully ignorant of his own true interests. But it is because they are deceived, both as to their own interests, and as to the just rights of authors and inventors, by those who are interested to deceive them.

Who, then, are the parties, who are interested to deceive the people at large, as to the true interests of the latter, and as to the just rights of authors and inventors? There are at least three classes. First, the whole class of pirates, who have a direct and powerful pecuniary interest, in plundering authors and inventors; because they thereby put into their own pockets some portion, at least, of that wealth, which would otherwise go to the authors and inventors themselves. Secondly, men ambitious of the reputation and influence of wealth, who fear that their wealth may be eclipsed by the wealth of inventors. Thirdly, political men, ambitious of intellectual reputations, who fear that their own would be eclipsed, as they really would be, by the reputations of both authors and inventors. The services rendered to mankind by great authors, and great inventors, are so incomparably superior, in brilliancy, permanency, and value, to any that can be performed by political men, (with possibly here and there a rare exception,) that it is not to be expected that the latter, with whom ambition is a ruling passion, should look with favor on such rivals as the former.

There are, then, three classes of men, who have a special and selfish interest to decry the rights of authors and inventors; and to deceive the people at large in regard to them. And they do it by such bugbears and sophistry, as have been exposed in the preceding pages. The influence of the two latter classes is especially powerful; for they have a direct, and nearly absolute, control [166] over legislation. And it is probably owing to the jealousy of these two classes, more than to all other causes, that the rights of authors and inventors have not been already acknowledged. The nobility of England, for example, whose wealth and power are hereditary, and founded on no personal merit or service, compose one branch of the legislative power of England, and have great influence in the election and control of the other; and they doubtless have sagacity enough to see, that the principle of perpetuity in intellectual property, would soon raise up a generation of authors and inventors, the latter of whom would rival them in wealth, and both of whom would wholly eclipse them in deeds commanding public admiration and gratitude; and both of whom also would contribute powerfully, and probably irresistibly, to prostrate their usurped and iniquitous political power. It is not therefore to be expected that the House of Lords, or those whom they can control in the House of Commons, will ever legislate for the principle of perpetuity in intellectual property. And the principle may perhaps triumph, in England, only on the ruins of existing political institutions. On the continent of Europe, there are obstacles to be overcome, in the jealousies of wealth, and of hereditary and tyrannical rulers, of a similar nature to those in England. In the United States, the obstacles are not so palpable, and probably not so great. But they are nevertheless such as are not to be despised. In all countries, they are doubtless such, as can be overcome, only by disseminating widely among the people the true principles of law, and the true principles of political economy, applicable to the question.

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PART II: THE COMMON LAW OF ENGLAND. (VOL. I)

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CHAPTER VI.: THE COMMON LAW OF ENGLAND RELATIVE TO INTELLECTUAL PROPERTY.

SECTION I.: What is the Common Law of England?

In order to determine whether the Common Law of England sustains the right of authors and inventors to an absolute and perpetual property in their ideas, it is only necessary to determine what the Common Law of England really is.

To many unprofessional readers, the term Common Law will convey no very certain or precise idea; and as I am anxious that they should fully understand this discussion, at every step, I shall define the term more at length than would otherwise be necessary.

The Common Law of England, then, with a few exceptions, which are wholly immaterial to the question of intellectual property, consists of, and is identical with, the simple principles of natural justice. In ancient times, it was often called “right,” “common right,” and sometimes “common justice.” Magna Charta calls it “justice and right.” It is what unprofessional men have in mind when they speak of their “rights;” of “justice;” of men’s “natural rights,” &c. It is the principle, or rule, which rightfully determines what is one man’s property, and what is another’s. It is often called the science of mine and thine; meaning thereby the science, by which we ascertain what is rightfully one man’s, and what is rightfully another’s. It is the principle, which an honest man appeals to, when he says, this [170] thing is mine, and such are my “rights.” It is that rule of judgment and decision, which impartial men usually, naturally, and intuitively perceive to be just, for the settlement of controversies between individuals in regard to their rights. It is the same principle, which writers on law usually call the law of nature, and the universal law. It is that natural law of justice, which Cicero says is the same at Rome and at Athens, the same to-day and to-morrow, and which neither the senate nor the people can abrogate. It is that natural and universal law of justice, which, over all the world, among civilized and savage men alike, is acknowledged as the obligatory rule of adjudication, in all legal controversies whatsoever, except those few, in regard to which some special or peculiar institution or enactment has been arbitrarily established to the contrary, by particular governments or people. It is the law, of which Sir William Jones speaks, when he says, “It is pleasing to remark the similarity, or rather the identity, of those conclusions, which pure unbiassed reason, in all ages and nations, seldom fails to draw, in such juridical inquiries as are not fettered and manacled by positive institutions.”* Kent says of it, “The Common Law includes those principles, usages, and rules of action, applicable to the government and security of person and property, which do not rest for their authority upon any express and positive declaration of the will of the legislature. A great proportion of the rules and maxims, which constitute the immense code of the Common Law, grew into use by gradual adoption, and received the sanction of the courts of justice, without any legislative act or interference. It was the application of the dictates of natural justice and cultivated reason to particular cases.”†

The Common Law, or the law of nature, is often called “the perfection of reason;” meaning thereby the conclusions, to which the highest reason has arrived, in its searches after the true principles of justice.

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It will be seen from what has been stated, that, with the exceptions before alluded to,* the Common Law, or, what is the same thing, the law of nature, is a science, as much so as any of the other sciences. It is the science of justice, as mathematics is the science of numbers and quantities. As a science, it is applicable to all the infinity of relations, in which men can stand to each other, and to each other’s properties; and determines what are their respective rights, or what, in justice, belongs to one, and what to another. Like mathematics, it consists of certain elementary principles, the truth and justice of which are so nearly self-evident as to be readily perceived by nearly all persons of common understandings. And all the difficulty of settling new questions at Common Law, arises from the fact that every new law question depends upon a new state of facts, which call for new combinations, or applications, of these elementary principles; just as the solution of every new mathematical problem requires new combinations of the elementary principles of mathematics.

In the progress of the human race from savageism to civilization, and from brutish ignorance to the present state of enlightenment, this science of justice, which in England is called the Common Law, has of necessity made great progress; and this progress has been made from the same causes, by which the science of numbers and quantities has made progress—that is, from the fact that the circumstances and necessities of mankind have continually compelled them to such inquiries; and thus knowledge has been ever accumulating, in one science, as in the other. In the darkest periods of the human mind, doubtless men [172] hardly knew that two and two were equal to four; or that two halves were equal to one whole. Now they can measure the size of planets, and the distances of stars. So in matters of justice—there was doubtless a time, when men were so nearly on a level with the brutes, as hardly to know that one man had not a right to kill his fellow man at pleasure. Now men have learned that they have separate, individual, and sacred rights of property in, and dominion over, things invisible by the eye, intangible by the hand, and perceptible only by the mind. And they have also learned at least the elementary principles, by which men’s separate rights to these invisible and intangible commodities can be determined.

The Common Law of England is often called the unwritten law; by which is meant that it was never enacted, in the form of statutes, by parliaments, or any other legislative body whatever. And for the most part it necessarily must have been so, since no legislative body could ever foresee the infinite relations of men to each other, so as to be able to enact a law beforehand for each case that might arise. The Common Law, therefore, does not depend at all, for its authority, upon the will of any legislative assembly. It depends, for its authority, solely upon its own intrinsic obligation—that is, the obligation of natural justice. And it ought always to have been held to be of superior authority to any legislative enactments opposed to it; because it is intrinsically of infinitely higher obligation than any legislative enactments, contrary to it, can be. In fact, legislative enactments are intrinsically of no obligation at all, when in conflict with it; because governments are as much bound by the principles of justice as are private individuals. Nevertheless, kings and parliaments have long assumed the prerogative of setting aside the Common Law, and setting up their own will in its stead, whenever their discretion or selfishness has prompted them to do so. And having judges and soldiers at their service, they have succeeded in having their arbitrary enactments declared to be law, in place of the Common Law, and carried into effect as such, [173] against the natural rights of men. All this, however, has been done in violation of the English constitution, as well as of natural right.

Having thus shown, perhaps sufficiently, what the Common Law of England is, in theory, let us look, for a moment, at what it has been in practice. And this, it is evident, must have depended wholly upon the degree of civilization, and the nature of the legal questions arising from adjudication; and also upon the degree of enlightenment, on the part of the tribunals appointed to administer it.

In the earlier times of the Common Law—say six hundred to one thousand years ago—the state of society in England was very rude and simple, such as we should now call barbarous. Agriculture, carried on in a very ignorant and clumsy manner, was the principal employment of the people. Wealth, knowledge, and the arts had made very little progress; and the legal questions arising were correspondingly few and simple, being such as related to the little properties, the common rights, and every day concerns of the common people; and such also as the common people would generally understand, almost instinctively, or rather intuitively, without the aid of any elaborate processes of reasoning.

The tribunals for deciding these questions were of a correspondingly simple and unsophisticated character. They consisted of twelve men, taken from the common people, almost or entirely at random. These juries sat alone, and were the real judges in every cause, civil and criminal. It was seldom that any other judge, learned, or supposed to be learned, in the law, sat with them. And when such was the case, he had no authority over them, and could dictate nothing to them, either of law or evidence. He could only offer them his opinion, which they adopted or rejected, as they thought proper.

Very few laws were enacted in those days. There was no such body in existence as the modern parliament, nor any other legislative assembly. What few laws were enacted, were enacted by the king alone. But none of them could be enforced against [174] the people, without the consent of the juries; and the juries were under no legal obligation to enforce them, and did not enforce them, unless they considered them just. The jurors were never sworn to try causes according to law, but only according to justice, or according to their consciences. Indeed, they could try them by no other law than their own notions of natural justice; for they could not read the king’s laws, since few or none of the common people could at that time read. Besides, printing being then unknown, very few copies of the laws were made. The laws, passed by the king, were generally made known, only by being proclaimed or read to such of the people, as might chance to be assembled on public occasions. Both theoretically and practically, they were simply recommendations, on the part of the king to the people, promulgated in the hope that the latter, as jurors, would enforce them.

Juries fixed the sentence in all criminal cases; and rendered the judgment in all civil cases; and no judgments could be given, except such as the twelve jurors unanimously concurred in as being just.

The decision of every jury was not necessarily enforced. An appeal was allowable to the king’s court, consisting of the king and certain of the nobility, who were assisted in their adjudications, by the king’s judges, or legal advisers. But this king’s court could enforce no decisions of its own, adversely to those given by the juries. It could only invalidate the judgment of a jury, and refer the cause to a new jury for a new trial. So that no judgment could be enforced against the person, property, or civil rights of any one, except such as had been unanimously agreed to by twelve of the common people, acting independently, according to their own ideas of justice.

The consequence of this state of things was, that while the Common Law, (with the exceptions which have before been alluded to,) was, in theory, a science, applicable, from its nature and intrinsic obligation, to the settlement of every possible question of justice, that could ever arise among men, in the most [175] advanced and enlightened state of which humanity is capable, it was, in practice, confined to the determination of such few and simple questions, as a very rude and uncultivated state of society gave rise to, and such also as tribunals, composed of twelve simple and unlearned men, could all understand, and would all concur in.

Why this law of nature, or natural justice, thus administered, was called, in England, the “Common Law,” is a matter of some dispute; although the probability altogether is, that it was called the Common Law, because it was the law of the common people, as distinguished from the nobility, or military class of society.

This military class had both rights and duties different, in some particulars, from those of the common people. The law applicable to them was therefore somewhat different from the law of the common people. And individuals of each class were entitled to be tried by their “peers,” or equals—that is, individuals of the military class were to be tried by tribunals of their own order, and the common people by tribunals (juries) of their own order. The Common Law, then, was the law which the common people administered to each other, as distinguished from the law, which the military class administered to each other; and there is little doubt that this is the true origin of the name. The ancient coronation oath strongly corroborates this idea, for one part of that oath was, that “the just laws and customs, which the common people have chosen, shall be preserved.” By “the just laws and customs, which the common people have chosen,” were meant those principles, which juries of the “common people,” acting independently, and on their own consciences, were in the habit of enforcing as law—for the “common people,” had no other legal mode of making their wishes, on matters of law, authoritatively known.

It was this Common Law, and the right of the “common people” to be judged by it, and to have their rights determined by it, in all civil and criminal cases, in the manner that has now been described—that is, by juries acting according to their own [176] notions of justice, and independently of all legislative authority on the part of the government—that constituted the ancient boasted liberties of Englishmen, and the very essence and life of the English Constitution.*

The reader will now be able to judge for himself whether the Common Law of England does, or does not, in theory, sustain the right of authors and inventors to a perpetual property in their ideas. In order to settle this question, he has only to decide whether it be just, and according to those principles of natural law, by which mankind hold their rights of property in all the other products of their labor, that they should also have the same rights of property in their ideas. If it were just, that men should have a right of property in their ideas, then the Common Law authorized it, and it was the duty of all Common Law tribunals to maintain that principle in practice.

Taking it for granted that the reader will have no doubt that the right of property in ideas came within the theory, and was embraced in the principles, of the Common Law, I shall now proceed to show why this right has not been hitherto more fully acknowledged.

SECTION II.: Why the Common Law Right of Property in Ideas has not been more fully Acknowledged.

It will, I think, be hereafter rationally shown, that the nonestablishment, in England, of the right of property in ideas, is to be attributed solely to the overthrow of the ancient, constitutional, Common Law government, and to the establishment of [177] arbitrary power in its stead. But to understand how such a cause has been productive of such an effect, we must attend somewhat to events and dates.

The Great Charter—which was at once the embodiment and guarantee of the Common Law form of government, and which, within about two hundred years from the grant of it in 1215, was confirmed more than thirty times, was confirmed for the last time in 1415. It had been much encroached upon before; but from this time the government degenerated rapidly into absolutism. And such has now been its character for some four hundred years.

In saying this, I do not mean that absolute power has been vested in the hands of the king alone; although at times his power has, in practice, very nearly approximated to absolutism. But I mean that there has existed in England a self-constituted, and unconstitutional legislative power, which has arbitrarily assumed the prerogative of setting aside the Common Law, or law of nature, and setting up its own will in its stead.

This legislative power, which was wholly unknown to the English Constitution, and which had its origin solely in a conspiracy between the king, the nobility, and the wealth of the kingdom, to rule and plunder the mass of the people, has consisted of the king and the parliament united; the parliament consisting of the higher orders of nobility, as one branch, and of a few representatives of the cities, boroughs, and wealthy freeholders, as a second branch, called the House of Commons.

The relative influence of the king, the nobility, and the House of Commons, in controlling legislation, has greatly fluctuated. Each House of Parliament has at times been the tool or confederate of the king against the other. At other times the king would call a parliament only at long intervals; exercising nearly absolute power meanwhile. But since 1688, the power of the crown has been effectually broken. Nevertheless the government has hardly been less arbitrary or tyrannical, as against the mass of the people, than it was before. The nobility, of course, have [178] represented only their own interests. The House of Commons, (falsely so called,) has, in its best estate, represented, at most, only the wealth of the kingdom, instead of the people. In its worst estate, it has been made up of tools of the king, tools of the nobility, and the representatives and tools of wealth. The suffrage has been so limited, and otherwise arranged, as designedly to secure these results.

One of the first acts of parliament, on obtaining its ascendancy, in 1688, was to impose upon the king an oath, “To govern the people of this kingdom of England, and the dominions thereto belonging, according to the statutes in Parliament agreed on, and the laws and customs of the same;” in the place of the ancient and constitutional oath, that “the just laws and customs, which the common people [acting as jurors] had chosen, should be preserved;” thus formally abolishing the authority of the Common Law, as compared with the will of parliament.

To give more certain effect to the arbitrary legislation of the king, and of the king and the parliament, the Common Law juries have been abolished, for some five hundred years last past, by laws fixing such property qualifications for jurors as would exclude a large, probably much the largest, portion of the people, and include generally only such as were represented in the House of Commons; and also by laws authorizing the king’s sheriffs and other officers to select the jurors; thus enabling them to secure those favorable to the government.

The judges too have always been appointed by the king; and until 1688, were removable by him at pleasure. But for five hundred years they have also been liable to impeachment and punishment by parliament. The consequence has been that they have always been mere tools of the king, or of parliament, or of both; so much so that, notwithstanding since 1344, (without any exception, so far as I know,) they have been sworn to maintain the Common Law, and deny it to no man for any cause, they have for a long period unanimously adopted and acted upon the doctrine, that parliament is omnipotent, and its statutes obligatory [179] in all cases whatsoever, the Common Law to the contrary notwithstanding. And they have also been the instruments of the government for imposing this doctrine upon juries. When the truth all the while was, that, by the English Constitution, both Houses of Parliament, as legislative bodies, were purely usurpers, and never had the slightest particle of authority to legislate for, or bind the people.

In addition to all these usurpations, for the overthrow of the Common Law, the king, for the two or three hundred years ending in 1640, maintained an extraordinary and unconstitutional court, of the most arbitrary character, called the Star-chamber court, composed wholly of his ministers and instruments, who exercised the power of summoning before them, and punishing at discretion, any one who had been guilty of any thing, which they chose to consider a contempt of the royal authority. Members of parliament were not exempt from this usurped jurisdiction. Jurors were often brought before it, and reprimanded or punished for the verdicts they had rendered. Private citizens, who had violated the king’s authority in any way, were brought before it, summarily tried, and punished at discretion. Under some reigns the audacity and tyranny of this court were such as to make it the terror of the kingdom.

Such, in general terms, has been the absolute and unconstitutional character of the English government for some four hundred years. And the consequence has been, that there has been no Common Law in force in England, during that time, except such as this arbitrary legislative power has seen fit to spare.

But we are now to show how this state of things has operated to prevent the acknowledgment of the Common Law right of property in ideas.

It is within four hundred years that the art of printing was introduced into England. But it was then in so rude a state, and the people in a condition of such ignorance, that little printing was done for many years. Consequently few persons were engaged in it. And very few persons wrote books. Under such [180] circumstances, no questions of copyright would be likely to arise. At length the art attracted the attention of the government, from its being foreseen that it might prove dangerous both to the church and the state. And from this time the government assumed unlimited authority over the press, prohibiting the publication of every thing heretical in politics or religion, and enforcing its restrictions by means of the Star-chamber court and otherwise, in the most summary and tyrannical manner. These restrictions continued, with no important interruptions, down to 1694; and were effectual in confining the liberty of printing to such books as the government approved. One mode of restriction, which prevailed for about one hundred years, was that of requiring each book to be specially licensed by the government, before it could be printed. When a book was allowed to be printed at all, the permission was without limitation as to time; and was usually, if not universally, confined to authors and their assigns. These restrictions upon the press, therefore, necessarily operated as a perpetual copyright upon the books allowed to be published; and so long as they were continued, no question of copyright at Common Law would be likely to arise in the courts. If any unlicensed person published a book, he was punished, not for infringing the author’s copyright, but for printing without the king’s permission; which answered the same purpose for the author.

At the expiration of these restrictions, still another circumstance tended to keep the law question out of the courts. The great body of the publishers were members of an ancient association, called the Stationers’ company. And when they found that their copyrights were no longer protected by the licensing act of the government, they adopted an ordinance among themselves, imposing penalties upon any of their own number, who should infringe another’s copyright.

Furthermore, in the year 1710, an act of parliament went into effect, securing to the proprietors of books already printed, a copyright for twenty-one years from the date of tho operation of [181] the act, and to the authors of books thereafter to be printed, a copyright for fourteen years, with a right of renewal at the end of that time, for another fourteen years, if the authors should then be living. This act kept the question of copyright, at Common Law, out of the courts for still another period.

After the expiration of the terms granted by this act, some injunctions were granted against infringements, apparently upon the ground that a right existed at Common Law. These injunctions, however, were acquiesced in, and the question was not tried at law.

And the question never came before the King’s Bench until the case of Tonson vs. Collins,* in 1760, and 1761, when the arguments were heard, but the court refused to give any decision, from a discovery of collusion between the parties. And it was not until the case of Millar vs. Taylor, in 1769, that the opinion of the King’s Bench was obtained; when three of the justices decided in favor of the right, and one opposed it.

Although, therefore, from various causes, the question never came to a clear decision, until some three hundred years after the introduction of printing, yet it is a well known historical fact, that for some hundred and fifty or two hundred years prior to that decision, (if not from the first introduction of printing,) it was a prevailing opinion among authors, publishers, and in the government itself, that the Common Law gave to authors a perpetual property in their works. John Milton, as early as 1644, speaking in behalf of the right of authors to print their thoughts freely without getting a license for each book, alluded to the subject of copyright, and said, “That part [of an order of parliament for licensing books] which preserves justly every man’s copy [right], or provides for the poor, I touch not” [do not object to]. Also, “The just retaining of each man his several copy [right], God forbid should be gainsaid.”

My argument now is, that if the Common Law, and the ancient [182] constitutional, or Common Law form of government, had been preserved, this question would have been brought to the same decision long before three hundred years from the introduction of printing should have elapsed. And why would it have been thus brought to this decision? For various reasons, as follows.

The question would, in the first instance, have come before juries; and those juries would have been free from all legislative authority, and sworn simply to do justice. And it is hardly probable they would ever have puzzled themselves, for a moment, with any of the abstruse objections which lawyers have raised. They would have promptly followed both their instincts and their reason, in saying that authors, like other men, should control the products of their labor. If the question had then been carried to the king’s court, it would still have to be decided on natural principles, unembarrassed by any legislative interference. And it would very likely have been decided rightly from the first. But even if the judgments of the juries had at first been reversed, and the cases sent back to new juries for new trials, the new juries would most likely have repeated the original judgments, inasmuch as the opinions of the king’s court was of no legal authority over them. And thus by repeated judgments in the same cases, and by new judgments in new cases, the juries would have forced upon the king’s court the conclusion, that the sense of the nation was in favor of the right; and the law would consequently have been so recognized.

If, however, it shall be thought by any one, that the question could not have been so easily settled, and that juries would have been incompetent and unfavorable tribunals for adjudicating on such a matter, he will perhaps change that opinion when he reflects, that, if Common Law principles in general, and the Common Law form of government, had been preserved, the common people, living under the protection of equal laws, and in the enjoyment of such freedom as the Common Law form of government secured, would have rapidly advanced in wealth and intelligence, instead of being condemned to such poverty, ignorance, [183] and degradation, as the tyrannical character of the government has subjected them to. Printing, too, would always have been free, from its first introduction; for it is not to be supposed that juries could ever have been influenced by such motives for restraining the freedom of the press, as have influenced religious and political tyrants, who feared its effects on their power. The press being free, and the people being both free and prosperous, literature would have flourished; and the rapid enlightenment of the whole nation, the common people no less than others, would have been the result. Under these circumstances, authors would have brought the question of their rights both before the public, and into the courts, at an early period after the introduction of printing. And the question, after being once brought before the public, and the courts, could never have been laid to rest, until the rights of authors were acknowledged. And that this would have been done long before 1769, (three hundred years after the introduction of printing,) I think it would be unreasonable to doubt; because, before that time, the people would not only have sufficiently comprehended the question, as one of natural justice, but they would also have learned that it was for their own true interests to encourage literature, by protecting the property of authors in their works.

If the right of property of authors in their works had been once established, under the Common Law form of government, the right would have been perpetual of course; because juries would never have thought of so absurd an idea, as that of acknowledging the property, and yet limiting the right in point of time; and there was no other legislative power competent to establish such a monstrosity.

Such, then, we may conclude, would have been the result, as regards the rights of authors.

The next question is, what would have been the fate of the rights of inventors, had the Common Law system of government been preserved?

But, before answering this question, let us see what their fate has actually been, under the arbitrary system that has prevailed.

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Patents for new inventions have, in England, always been classed under the head of “monopolies” arbitrarily granted by the crown.

Now the granting of monopolies—by which I mean the granting exclusively to one what is the right of all—was plainly incompatible with the Common Law. It must also have been impossible for the king, in cases where his grants were clearly unjust and unreasonable, to maintain their inviolability, so long as the ancient constitutional form of government was preserved; because he could punish infringements upon his grants, only by the consent of juries, who would judge of the matter on its merits, independently of his authority. Nevertheless, we are told that, from a very ancient date, the kings have been in the habit of granting to individuals the exclusive right to practice new arts and manufactures, introduced by them into the kingdom. It was immaterial whether those, who introduced them, were also the inventors of them, or had learned them in foreign countries. It was enough that they were the first to introduce them into England.

How far these grants were effectual, in the early times, for the purposes intended by them—that is, how far they were sustained by the judgments of juries—I do not know. To my mind, it is not at all probable that they were universally sustained. Yet I think we may reasonably conclude that some of them were sustained; otherwise the practice of granting them would hardly have been continued. If, then, any considerable portion of them were sustained, that fact indicates that even in that rude and ignorant age, the unlearned common people—of whom the juries were composed—had some natural and just, though imperfect, appreciation, either of a man’s right of property in his invention, or of their moral indebtedness to one who gave a new and valuable art to the public. And this fact tends also to show that, with the progress of knowledge, and the increased experience of the utility of new inventions, the principle of a man’s right of property in his ideas, would have made its way, as a principle of [185] natural law, into the minds of the people, and long ere this have been acted upon, as such, by the juries, had the Common Law institutions been preserved.

English judges, as far back at least as 1366, have held that grants by the king to individuals of the exclusive privilege of practising for a time a new art or manufacture introduced by them into the kingdom, were consistent with the Common Law. The reason given, in a case of that date, was “that arts and sciences, which are for the public good, are greatly favored in law, and the king, as chief guardian of the common weal, has power and authority, by his prerogative, to grant many privileges, for the sake of the public good, although prima facie they appear to be clearly against common right.”

Coke says, “The reason wherefore such a privilege is good in law, [that is, at the Common Law,] is because the inventor bringeth to and for the commonwealth a new manufacture by his invention, costs, and charges, and therefore it is reason that he should have a privilege for his reward, (and the encouragement of others in the like,) for a convenient time.”*

Now, I do not cite these opinions of judges as any proof at all, that the Common Law recognizes a man’s right of property in his inventions. No such proof is needed, for the nature of the Common Law itself establishes that point. Besides, the opinions themselves are altogether too loose and crude to be worth any thing for that purpose; for they apply as well to persons who bring inventions from other countries, as to inventors themselves; and they also absurdly assign reasons of expediency to the public, instead of reasons of right to the inventor, as the grounds on which the Common Law allows of such grants. The opinions were also given by judges, who were either the creatures of the crown alone, or of the crown and parliament, and who doubtless [186] were in the habit of sanctioning every thing which the king and the parliament desired them to sanction. But I cite them as evidence that, for at least five centuries, there have prevailed, in England, a general sense of obligation, or indebtedness, on the part of the public, towards one who introduces a new art, and an idea that he ought in some way to be paid. And my argument is, that if arbitrary power had never interfered to check the progress of knowledge, and to exercise absolute authority over the rights of inventors, as well as of others, this public sense of obligation, and this vague idea that an inventor should be paid, would long ago have found body and form in a well digested system of natural law, based on the principle of a man’s absolute right of property in the productions of his mind.

The tendency towards this result has been greatly obstructed by the arbitrary character of the English government, for the last four or five centuries. For example, in those periods, when the power of the king was at its height, he was in the habit of granting a great variety of monopolies, without any pretence of new inventions, but only as a means of rewarding favorites, or of raising revenue. And these monopolies were maintained through the instrumentality of the Star-chamber court, which summarily punished infringers. These monopolies were so numerous, unjust, and oppressive, that parliament, in 1623, interfered to suppress them; and an act was passed for that purpose, specially on the ground that they were contrary to the Common Law. Yet, in this act, which was intended to be effectual for the suppression of all monopolies, except such as were either consistent with the Common Law, or supposed to be beneficial to the public, patents for new inventions, and licenses for printing, were specially excepted from the general prohibition; thus again partially recognizing the right of property in ideas, by indicating it to be the sense of the nation, that both justice and policy required that authors and inventors should receive some reward for their labors; and that the most reasonable and expedient mode of securing this end, was, by giving to authors an unlimited monopoly of their [187] works, and to inventors a monopoly of their inventions for a limited time.

But from all this it must not be inferred that correct scientific views of the law of nature on this subject, had made any great progress; nor could they do so, for scientific views of the law of nature, relative to any subject, make little progress in the midst of despotism and ignorance. But my argument is, that, but for the despotism, no general ignorance would have prevailed; the press would have been free; the people would have become enlightened; would have been free in the choice of their pursuits; inventions would have multiplied; their importance would have come to be more justly appreciated; the law relative to them, being left to rest, as it would have done, upon natural principles, would necessarily have become an important subject of investigation, (in connexion with the rights of authors,) and from the necessity of the case, it would have made progress.* And is it in the least extravagant—is it not indeed entirely within the limits of probability, to suppose that an inventor’s property in his invention would long ago have been recognized as a right, founded in nature, instead of being regarded as that contemptible and detestable thing, which the English government persists in regarding it, to wit, not a right, but a privilege, granted to an inventor by the crown, as a mere matter of royal grace, favor, and discretion?†

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But I wish now to show why the rights of inventors, to a perpetual property in their inventions, has never come distinctly before the English courts, as a question of Common Law.

Prior to the introduction of printing, and for a considerable time after, there could have been but very few inventions, of any considerable importance, made in England.* The English were not naturally an inventive people. The Italians and Germans were much in advance of them in that respect. The English were an agricultural and military, and not a mechanical, [189] people. Most of their inventions were brought from the continent, and even those doubtless were not numerous. The art of printing, after some lapse of time, began to increase the mental activity of the people. Yet this activity, for a long time, took the directions of literature, politics, religion, colonization, commerce, and war, rather than of invention, or progress in the arts. Indeed it is only within the last hundred years, or thereabouts, that many important inventions have been made in England.

Under these circumstances, it was natural that the rights of inventors, as a question of Common Law in the courts, should lag behind those of authors; and for various reasons, as follows.

1. One’s authorship of a book could much more easily be proved, to the satisfaction of a jury, than one’s authorship of an invention. That proof could also be much more easily perpetuated, than in the case of an invention; because a book, once published, generally carried the author’s name with it, whereby the latter became at once notorious, and false claims to the authorship became forever after impossible to be established. Whereas, in the case of an invention, unless the proof of authorship were made at once, to the satisfaction of the king, and a patent obtained, the evidence would soon either be entirely lost, or become so uncertain as to be insufficient to establish one’s right.

2. The number of printers were so few, and those few so well known, that the infringement of an author’s copyright was much more sure of being detected, than an infringement of one’s invention. The latter could easily be concealed, if perpetrated at some distance from the locality of the inventor; because there was so little travel and intercourse in those days, among the common people, that an invention could be easily practised a long time so privately as not to become known to a person at a distance.

3. Copyrights were perpetual; whereas patents for new inventions were temporary. The former too were obtained without any important cost or trouble; whereas it was doubtless a very serious and expensive undertaking to prove, to the satisfaction of [190] the crown, one’s authorship of an invention, and get a patent for it. There were also doubtless many more books written, than there were important inventions made. For these reasons, the copyrights of books were doubtless much more numerous than the patents for inventions. These copyrights, too, very many of them, went into the hands of printers, who were able to defend them in the courts; whereas it is likely the inventors were generally too poor to go to law for their rights.

4. Since 1623, (until 1835,) patents have been granted but for fourteen years; and (before the English became so eminently a manufacturing nation) a new manufacture could be introduced but so slowly, that unless the invention were of great importance, a patent for so short a period, would be of too little value to be worth the cost of procuring.

5. The fact, that the government made no distinction between those who imported inventions, and those who made them, tended to confuse men’s notions as to the rights of real inventors. And the further fact, in this connexion, that patents granted to mere importers of inventions, would justly be regarded with odium, if prolonged for any considerable time, tended to reconcile men to the practice of protecting original inventors for a short period also; and this made their rights of too little value to be worth protecting by expensive litigation.

6. A mechanical invention is much more difficult to be defined, or described, to the satisfaction of a jury, than the contents of a book; and therefore it would be much more difficult to prove, to the satisfaction of a jury, the infringement of a patent, than of a copyright.

7. A claim for copyright would meet with fewer obstacles from the prejudices of a jury, than a claim for an invention; because a book interfered with no man’s interests; whereas labor-saving inventions were often very odious, on account of their turning large numbers of people out of employment. We, of this day, who have become accustomed to look upon a new labor-saving invention as one of the greatest blessings, can hardly fail [191] to be astonished at the ancient prejudices against such as superseded other labor. As an illustration of these prejudices, it may be stated, that it is less than two hundred years, since a saw-mill in England was pulled down by a mob, on account of its interfering with the employment of the splitters and hewers of timber. Coke also gives a curious illustration, not merely of the popular prejudice, but also of the government’s prejudice, against a new invention, if it were one that would deprive many persons of their employment. He says,

“There was a new invention found out heretofore that bonnets and caps might be thickened in a fulling mill, by which means more might be thickened and fulled in one day, than by the labors of fourscore men who got their living by it. It was ordained that bonnets and caps should be thickened and fulled by the strength of men, and not in a fulling mill, for it was holden inconvenient to turn so many laboring men to idleness.”*

8. Inventors not being literary men, and perhaps often wholly illiterate men, could not advocate their own rights, as the authors could theirs. They had no John Miltons among them to speak for them. They could only let their deeds speak for themselves. Besides, they were doubtless too much engrossed in their inventions, (as most inventors are even at this day,) to give much thought to their legal rights. They naturally accepted such protection as the government offered them, without raising any further question about it.

For all these reasons, and perhaps for others, it was natural that the perpetual right of inventors should be behind the perpetual right of authors, in coming into the courts, as a question of Common Law. And such was the fact. Not only so, but, unfortunately for the inventors, when the rights of authors did finally come before the King’s Bench, as a Common Law question, in 1769, that court, while it sustained the rights of authors, gratuitously prejudged and condemned the rights of inventors without a hearing, as we shall hereafter sec. The House of Lords virtually did the same in 1774.

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Beyond and above all this, the act of parliament of 1628, expressly forbade patents to be granted for a longer period than fourteen years. And this prohibition remained in force until the act of 1835, which allowed an extension of seven years in certain cases. So that the Common Law rights of inventors could be set up, in court, only on one or both of these two grounds, viz.: 1. That the act of parliament, limiting the duration of the patent, was constitutionally void—a ground, which is true in itself, but which no court in England would think of sustaining. 2. That the rights of inventors were not derived from, and did not depend on, their patents—a ground, which is also true in itself, but which patentees could not be expected to understand, or at least to have confidence in, as a ground of successful litigation, considering that the uniform practice of the courts had been to hold the contrary.

Besides, the task of inventors to secure to themselves even such rights as the acts of parliament intended they should enjoy, has always been too hard a one, to leave them any confidence for advancing new claims, (however just in themselves,) in manifest opposition to the intention of parliament, and the practices of courts. For the courts, persisting in the idea that a patent was, in some sort at least, an arbitrary grant of an unjust monopoly, have, until quite recently, been in the habit of exerting their ingenuity to invalidate even such patents as were granted. For example. If a specification claimed a particle too much, or was a particle deficient in the description of the art, the courts, instead of holding the patent good for whatever was good, as they were bound to do, would take advantage of the error to invalidate the patent altogether. Thus, as late as 1829, “in the case of Felton vs. Greaves, the title of the plaintiff’s patent described the invention to be a machine for giving a fine edge to knives, razors, scissors, and other cutting instruments; but it appeared that the invention, as described in the specification, was inapplicable for the sharpening of scissors; and Lord Tenterden, Chief Justice, therefore held the patent to be void, and nonsuited the [193] plaintiff.”* And in 1816, “in the case of Cochrane vs. Smethurst, it appeared that the plaintiff’s patent was for an improved method of lighting cities, towns, and villages; but his invention really was an improved street lamp; and it was held by Mr. Justice Le Blanc that the title was too general in its terms, and the patent void.”†

These cases are given merely as illustrations of the absurdities and atrocities, which the courts have habitually practised, up to a very recent date, when adjudicating upon the rights of inventors. It seems never to have entered their heads, that it was any part of the object of a patent, to secure to an inventor the quiet possession of what was exclusively his own. On the contrary, they have treated a patent as a bargain, between the public and the inventor, of this kind, to wit. They considered that the art, instead of being an honest product of the inventor’s labor, and therefore his own, was one, which rightfully belonged to the public, and which had merely happened to become known only to the inventor; and that he, like the dog in the manger, would neither use it, nor let others use it, unless he could get something for his secret. They of course held that he really ought to give the secret freely to the public; and that any attempt, on his part, to get a price for it, was merely an attempt at levying black mail, and should be defeated if possible. They then considered that the public, finding themselves in this unfortunate predicament, their rights locked up in the breast of a scoundrel, acting under the force of an unjust necessity, made a contract with him, (through their representative, the king,) by which they agreed to give him a monopoly of the art for fourteen years, provided he would give the art freely to the public forever afterwards. To secure the benefits of this bargain to the public, the king required the villain to put on the king’s records such an accurate description of the art, as that other men, by reading the description, [194] might be able to understand and practise the art. If, now, this specification have described the invention as being a particle more than it really was, the courts have said that the inventor had practised a fraud, and obtained a patent, without giving for it the full price agreed upon; and that therefore the patent was void: If, on the other hand, the specification have not so fully described the invention, as that it may be entirely known by other persons on reading the description, then the courts have said that the inventor was a cheat, because he had not made known the invention, which he agreed to make known, as the price of his patent; that he has therefore obtained his patent on false pretences, and that it is consequently void. Thus, if the courts, by splitting a hair ’twixt north and north-west side, could so construe a specification as to make the patentee to have defrauded the public, to the amount of a farthing, in the price agreed to be paid by him for his patent, they have held that the patent was void; as if the patentee were a swindler, getting unjust monopolies out of the public by false representations, instead of being, as he no doubt usually has been, a simple honest man, who wished to secure to himself the products of his honest labor, but who was not sufficiently skilled in letters, law, and the arts, to know whether or not his invention were described with the greatest possible accuracy, of which the case admitted.

This is the spirit in which English courts up to a very recent date, if not indeed up to the present date, have adjudicated upon the rights of inventors. Whereas, if the Common Law rights of inventors were acknowledged, it would be the duty of courts to recognize the sufficiency of a specification, if it described the invention with such general accuracy, as to put second persons reasonably on their guard against infringing it.

When we consider for how long a period inventors have been compelled to deal with such pettifoggers, sharpers, and asses, as these courts have thus shown themselves to be, it is perhaps not to be wondered at, that they have never seen fit to ask any thing more at their hands than was given them by acts of parliament—the [195] only law the judges have acknowledged on this question. They have accordingly turned their attention to getting improvements in acts of parliament, rather than to asserting their Common Law rights.

Looking back, now, over the ground, for five hundred years, we see, on the one hand, the advantages, which the Common Law rights of inventors have enjoyed; and, on the other, the disadvantages under which they have labored.

Under the head of advantages, we may reckon, that during all that time, (five hundred years,) it has been held, by kings, courts, and parliaments, to be consistent with the Common Law, for the king to grant, both to actual inventors, and to the mere importers of new inventions, a temporary monopoly of the use of their inventions; and that for more than two hundred years, (since 1623,) the sentiment on this point has been so strong, and so strong also the conviction of the good policy of encouraging the arts in this way, that these monopolies have, by a special act of parliament, stood excepted out of the prohibition laid upon monopolies in general.

Under the head of disadvantages, we may reckon, that the English were not originally an inventive people; that it is only within a hundred years, or thereabouts, that their minds have been particularly turned in the direction of inventions; that from the first, the grant of a patent for a new invention, has been held, by the government, to be an act of grace, favor, and discretion, on the part of the crown, and not any thing which a subject could claim as a right; that the rights of a real inventor have always been placed on the same footing with the impertinent and groundless claims of a mere importer of an invention, and have, therefore, necessarily been discredited by the association; that patents for new inventions, from being always classed among arbitrary monopolies, have always had to bear, by association, more or less of the odium which justly attaches to those violations of common right; and, finally, that for more than two hundred years, (that is, since 1623,) there has been an imperative act of [196] parliament, (which judges, in violation of their oath, and their duty, always bow to, in preference to the Common Law,) prohibiting the grant of a patent for any more than a limited period.

Now, the whole object of the argument in this section, is simply this. First, to prove, reasonably, that if the ancient Common Law system of government had been preserved, and arbitrary power, neither that of the king, nor that of the king and parliament, had ever interfered with the question of intellectual property, the rights of authors, to a perpetual property in their ideas, would have been first established; and that, too, long before the decision in their favor by the King’s Bench in 1769. And, secondly, that the establishment of the rights of actual inventors, (not of importers of inventions,) to a perpetual property in their ideas, would also have speedily followed the establishment of the rights of authors. And that both these events would have occurred long before now.

Considering, then, on the one hand, that the claims of inventors, as being founded in the Common Law, were at least partially recognized so long ago as five hundred years; and considering also, that the rights of authors were also, at least partially, recognized, nearly as soon after the invention of printing as there were any authors having rights to be protected; and then considering also, on the other hand, the arbitrary character of the government during all this time, the restrictions on the press, the oppression, and consequent poverty and ignorance of the people; and also the arbitrary limitations, imposed by acts of parliament, for the last two hundred and thirty years, upon the rights of inventors, and for the last one hundred and forty years, upon the rights of authors; considering all these things, I think the conclusion is certainly a reasonable one, that if the ancient constitutional Common Law form of government had been preserved, and knowledge and wealth had been, (as under such circumstances they would have been,) not only immensely increased, but more equally diffused among the people, the Common Law, as a science, would have made such progress, and literature and the arts would [197] have so commended themselves to the approbation and protection of the people, that the rights of both authors and inventors, to a perpetual property in their ideas, would have been long since established.

And the true method of proceeding, at this day, in order to establish the rights of authors and inventors, is to re-establish the constitutional authority of the Common Law over acts of parliament.

SECTION III.: Review of the Case of Millar vs. Taylor.

The question of an author’s copyright at Common Law, first came to a decision by the court of King’s Bench in 1769, in the case of Millar vs. Taylor.* Three of the Justices, Willes, Aston, and Lord Mansfield, decided in favor of the right; one, Justice Yates, opposed it.

Each of the judges gave a written argument on the question. The want of unanimity in the court, and the inconsistency and deficiency of the arguments of the three Justices in favor of the right, have prevented their decision from being received as a settlement of the question; and there has probably been nearly or quite as much doubt on the point, among lawyers, since that decision as before.

The Justices argued the question, both on precedent, and as an abstract one of natural, or common law. The precedents were from the court of chancery; and the most of them were encumbered with so many collateral questions, that, although they indicated very strongly, and perhaps quite clearly, that the chancellors had, in some instances at least, assumed that there was a Common Law copyright, still, as the decrees had never been [198] rendered on a discussion of that point, they could not be held as decisive of the abstract question.

The objections of Yates, on abstract grounds, so far as they were worthy of notice, have been noticed, and replied to, in “Part First,” of this Essay.

The arguments of the three Justices, who favored the right, were erroneous and deficient to such a degree, that it can hardly be said that they threw any light upon the points where the real difficulties lay. This is perhaps not to be wondered at. The question was essentially a new one, so far as any critical investigation of it was concerned. Being a new one, an abstruse one, and liable to objections, which could not all be answered without much reflection, it is perhaps not surprising that, in the hurried and superficial examination, which alone judges can give to new questions, their views should be, as they were, crude, inconsistent, superficial, and unsatisfactory; and that, instead of settling the questions involved, they did little or nothing more than bring to light the real questions to be settled.

Some of the most important of the errors and deficiencies of their arguments were the following.

1. While asserting that authors had a Common Law right of property in their works, they conceded and asserted that inventors had no Common Law right of property in their inventions; that their rights depended wholly on the patents granted them by the king.

So glaring an inconsistency as this was of course wholly indefensible; and it was turned against them, in the following terms, by Yates, who opposed the right. He said:

“The inventor of the air pump had certainly a property in the machine which he formed; but did he thereby gain a property in the air, which is common to all? Or did he gain the sole property in the abstract principles upon which he constructed his machine? And yet these may be called the inventor’s ideas, and as much his sole property as the ideas of an author.” 4 Burrows 2357.

Also, “Examples might be mentioned, of as great an exertion of natural faculties, and of as meritorious labor, in the mechanical [199] inventions, as in the case of authors. We have a recent instance in Mr. Harrison’s time-piece; which is said to have cost him twenty years application. And might he not insist upon the same arguments, the same chain of reasoning, the same foundation of moral right, for property in his invention, as an author can for his?

“If the public should rival him in his invention, as soon as it comes out, might not he as well exclaim as an author, ‘that they have robbed him of his production, and have iniquitously reaped where they have not sown?’ And yet we all know, whenever a machine is published, (be it ever so useful and ingenious,) the inventor has no right to it, but only by patent; which can only give him a temporary privilege.” Same, p. 2360.

And again, “The whole claim that an author can really make, is on the public benevolence, by way of encouragement; but not as an absolute coercive right. His case is exactly similar to that of an inventor of a new mechanical machine; it is the right of every purchaser of the instrument to make what use of it he pleases. It is, indeed, in the power of the Crown to grant him a provision for a limited time; but if the inventor has no patent for it, every one may make it, and sell it.

“Let us consider, a little, the case of mechanical inventions.

“Both original inventions stand upon the same footing, in point of property; whether the case be mechanical, or literary; whether it be an epic poem, or an orrery. The inventor of the one, as well as the author of the other, has a right to determine ‘whether the world shall see it or not;’ and if the inventor of the machine choose to make a property of it, by selling the invention to an instrument maker, the invention will procure him benefit. But when the invention is once made known to the world, it is laid open; it is become a gift to the public; every purchaser has a right to make what use of it he pleases. If the inventor has no patent, any person whatever may copy the invention, and sell it. Yet every reason that can be urged for the invention of an author, may be urged with equal strength and force, for the inventor of a machine. The very same arguments ‘of having a right to his own productions,’ and all others, will hold equally, in both cases; and the immorality of pirating another man’s invention is full as great, as that of purloining his ideas. And the purchaser of a book and of a mechanical invention has exactly the same mode of acquisition; and therefore the jus fruendi [the right of enjoyment] ought to be exactly the same.

“Mr. Harrison (whom I mentioned before) employed at least as much time and labor and study upon his time-keeper, as Mr. [200] Thompson could do in writing his Seasons; for, in planning that machine, all the faculties of the mind must be fully exerted. And as far as value is a mark of property, Mr. Harrison’s time-piece is surely as valuable in itself, as Mr. Thompson’s Seasons.

“So the other arguments will equally apply. The inventors of the mechanism may as plausibly insist, ‘that in publishing their invention, they gave nothing more to the public than merely the use of their machines;’ ‘that the inventor has the sole right of selling the machines he invented;’ ‘and that the purchaser has no right to multiply or sell any copies.’ He may argue, ‘that though he is not able to bring back the principles to his own sole possession, yet the property of selling the machines justly belongs to the original inventor.’

“Yet with all these arguments, it is well known, no such property can exist, after the invention is published.

“From hence it is plain, that the mere labor and study of the inventor, how intense and ingenious soever it may be, will establish no property in the invention; will establish no right to exclude others from making the same instrument, when once the inventor shall have published it.

“On what ground then can an author claim this right? How comes his right to be superior to that of the ingenious inventor of a new and useful mechanical instrument? Especially when we consider this island as the seat of commerce, and not much addicted to literature in ancient days; and therefore can hardly suppose that our laws give a higher right, or more permanent property, to the author of a book, than to the inventor of a new and useful machine.” Same, p. 2386-7.

To these arguments the three Justices offered only these replies.

Willes said, “But the defendant’s insist, ‘that by the author’s sale of printed books, the copy [right] necessarily becomes open; in like manner as by the inventor’s communicating a trade, manufacture, or mechanical instrument, the art becomes free to all who have learnt, from such communication, to exercise it.’

“The resemblance holds only in this—As by the communication of an invention in trade, manufacture, or machines, men are taught the art or science, they have a right to use it; so all the knowledge, which can be acquired from the contents of a book, is free for every man’s use; if it teaches mathematics, physic, husbandry; if it teaches to write in verse or prose; if, by reading an epic poem, a man learns to make an epic poem of his own; he is at liberty.

“But printing is a trade or manufacture. The types and press are the mechanical instruments; the literary composition is as [201] the material, which is always property. The book conveys knowledge, instruction, or entertainment; but multiplying copies in print is quite a distinct thing from all the book communicates. And there is no incongruity, to reserve that right, and yet convey the free use of all the book teaches.” 4 Burrows 2331.

This argument is utterly absurd, inasmuch as it assumes—what is not true—that if an inventor employ a mechanic, to construct a machine, in accordance with his invention, and thereby learn him how to construct similar machines, the mechanic thereby acquires a right to construct such machines in future, without the consent of the inventor! It is true such an idea once prevailed in England, and was acted upon by courts. But there would be just as much sense in saying that, if an author employ a printer to print his book, and thereby learn him how to print similar books, the printer thereby acquires a right to print similar books, (that is, the same literary composition,) without the author’s consent.

The argument is just as strong in favor of the right of the printer to print the book, as it is in favor of the right of the mechanic to construct the machine. Or, rather, the argument is just as weak, instead of strong, in one case as in the other.

Aston said, “That the comparison made betwixt a literary work and a mechanical production; and that the right to publish the one, is as free and fair, as to imitate the other; carries no conviction of the truth of that position, to my judgment. They appear to me very different in their nature. And the difference consists in this, that the property of the maker of a mechanical engine is confined to that individual thing which he has made; that the machine made in imitation or resemblance of it, is a different work in substance, materials, labor, and expense, in which the maker of the original machine cannot claim any property; for it is not his, but only a resemblance of his; whereas the reprinted book is the very same substance; because its doctrine and sentiments and its essential and substantial part are. The printing of it is a mere mechanical act, and the method only of publishing and promulgating the contents of the book.

“The composition therefore is the substance; the paper, ink, type, only the incidents or vehicle.

“The value proves it. And though the defendant may say ‘those materials are mine,’ yet they cannot give him a right to [202] the substance, [the literary composition,] and to the multiplying of the copies of it; which (on whose paper or parchment soever it is impressed) must ever be invariably the same. Nay, his mixing, if I may so call it, his such like materials with the author’s property, does not (as in common cases) render the author’s property less distinguishable than it was before; for the identical work or composition will still appear, beyond a possibility of mistake.

“The imitated machine, therefore, is a new and different work; the literary composition, printed on another man’s paper, is still the same.

“This is so evident to my own comprehension, that the utmost labor I can use in expressions, cannot strengthen it in my own idea.” 4 Burrows 2348.

This argument of Aston is equally absurd with that of Willes; because two books, of the same kind, are just as much two different things, (and not “the same,” as Aston asserts,) as are two machines, of the same kind. The ideas also, described in a book, are just as much distinct entities from the book itself, as the idea, after which a machine is constructed, is a distinct entity from the machine itself. The ideas, described in a book, no more compose the “substance” of the book, and are no more “mixed” with the “materials” of the book, as Aston asserts, than the idea, after which a machine is constructed, composes the “substance” of the machine, or is “mixed” with the “materials” of the machine. But this point has been sufficiently explained in a previous chapter.*

The objects of a book and a machine are somewhat different. The object of a book is simply to communicate ideas. A machine communicates ideas equally as well as a book (to those who understand the language of mechanics); but it also has another object, which a book has not, viz.: the performance of labor. This is the most noticeable difference between them; a difference of no legal importance whatever, unless it be to prove that the mechanical idea is the more valuable of the two, and therefore the more worthy of protection as property.

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Lord Mansfield made no argument of his own, as to the resemblance, or difference, between mechanical inventions and literary compositions; but he must be considered to have indorsed the arguments of Willes and Aston, on this point, as well as on all others; for he said he had read them (throughout), and “fully adopted them.” p. 2395-6.

There can certainly, I think, be no necessity for any additional remarks on this subject. The identity of principle, in the two cases, is so perfect, and so palpable, that any theory, that excludes an inventor’s ideas from the category of property, must equally exclude those of authors. And any theory, that includes the ideas of authors in the category of property, must equally include those of inventors. Aston himself, five years afterwards, in the case of Donaldson vs. Becket, had changed his mind so far as to say, that “He thought it would be more liberal to conclude, that previous to the monopoly statute, there existed a common law right, equally to an inventor of a machine, and an author of a work.”*

We, of this day, may well feel amazed that three out of four, of the judges, occupying so high a seat as that of the King’s Bench, could fall into an error so absurd in itself, and so evidently fatal to the cause they were advocating. The fact, that they did so, is one of the numberless instances, that show how the minds of judicial tribunals are fettered by the authority, or their consciences swerved by the influence, of the government, whose servants they are; and consequently how little reliance is to be placed upon the correctness of judicial decisions.

Many persons, no doubt, will think that in this case, the consciences of the judges were swerved, rather than that their judgments were fettered; that inasmuch as the granting of patents had, for hundreds of years, been held to be a branch of the royal prerogative; and in some reigns, if not in all, a somewhat lucrative branch; the judges had not the courage to strike such a [204] palpable blow at the authority, dignity, and revenues of the king, as they would do by declaring that inventors could hold their property independently of his “gracious pleasure and condescension.”

Other persons may perhaps imagine, that an unwillingness, on the part of the judges, to impeach their own infallibility, and that of their court, by acknowledging the error of all their former decisions, in regard to inventions, was at the bottom of the absurd distinction, which they attempted to set up, between the rights of authors and inventors, to a property in their respective ideas.

Still other persons, however, of a more charitable disposition, especially if they are familiar with the unreasoning stupidity, with which courts are habituated to acquiesce in every thing, however absurd in itself, that has the odor of authority or precedent, will perhaps give these judges credit for honestly imagining, that there must be some difference between the rights of authors and inventors, notwithstanding they themselves (the judges) were unable to make that difference appear.

But whatever may have been the cause of so patent an inconsistency on their part, the inconsistency itself was sufficient to deprive their decision of all weight as an authority.

2. The arguments of the three Justices, in favor of the right, were imperfect for another reason, to wit: that they failed to answer the following argument of Yates against the right, viz.: That it was a supposable case that two men might produce the same ideas, independently of each other; and that, in such a case, it would be unjust to give, to the one who first produced them, an exclusive property in them.

The three judges made no reply to this argument.

I have attempted to answer this objection, in a former chapter,* and need not repeat what is there said.

3. A third error, or deficiency, in the arguments of the three Justices, in favor of the Common Law copyright, arose in this way.

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It is not now, and I suppose never has been, the custom in England, to make any entry—such as “copyright reserved,” or other equivalent expression—on the title page, or other part of a book itself, to give notice to purchasers that the copyright is retained by the author.

The act of parliament required no such entry to be made in the books themselves. It only protected the copyright of those books, whose title should be entered in the register book of the Company of Stationers. But as this was a merely arbitrary provision, the entry or non-entry of the title there, could have nothing to do with the question of copyright at Common Law.

Hence the important question arose, How is a purchaser of a book to know how much he purchases? That is, How is he to know whether, in buying a book, he also buys the right to reprint it, or only the right to read it? On what legal grounds can it be said, that there is any implied contract between the author and the purchaser, by which the former reserves the exclusive right to multiply copies?

These were important questions, which the three Justices, who favored the common law copyright, were bound to answer. But they did not answer them satisfactorily or fully. I have attempted to answer them in a former chapter.*

4. A fourth error, in the argument, of the three Justices, who favored the right, was this.

Willes said, (and it was apparently concurred in by both Aston and Mansfield,) that “All the knowledge, which can be acquired from the contents of a book, is free for every man’s use. * * * The book conveys knowledge, instruction, or entertainment; but multiplying copies in print is quite a distinct thing from all the book communicates. And there is no incongruity, to reserve that right, and yet convey the free use of all the book teaches.” p. 2331.

This is error throughout. It is, of course, generally true, that “All the knowledge that can be acquired from the contents of a [206] book, is free for every man’s use,” in every way except that of reprinting descriptions of it; but it is, by no means, a necessary consequence of the publication of a book, that all the knowledge it conveys, is, even thus far, free for the use of every body, or even for the use of the purchaser of the book. Suppose a book describe a steam engine so fully, that a mechanic, from the knowledge thus conveyed, would be able to construct and operate a steam engine; does it follow, because he has obtained that knowledge from a book, (even though the book were written and sold by the inventor of the engine,) that it is therefore free for his use? Not at all. The book may have been, and most likely was, written by the inventor, simply for the purpose of conveying, to the reader, such a knowledge of the steam engine, as would induce him to purchase the right to construct, or use one.

If special notice be given, in the book, that the copyright is reserved, that notice may—and, in the absence of any ground of presumption to the contrary, perhaps would—imply that the author reserves nothing else than the right of multiplying copies; and that the knowledge conveyed by the book, is therefore free for all other uses. But, in England, where no notice is given, in the book, that the copyright is reserved, no implication can be drawn, from the simple fact of publication alone, that the knowledge conveyed is designed to be free. The law must infer, from the nature of the knowledge conveyed, and from other circumstances, whether the author designs the knowledge to be free, or not. In a large proportion of the books printed, the knowledge is of such trivial market value, that, in any other form than in a book, it would bring nothing worth bargaining for. In such cases, it would be reasonable for the law to infer that the knowledge was designed to be free for all uses, except that of being reprinted. But wherever the knowledge had an important market value, independently of the book, it would be reasonable to infer, that the object of the book was, to advertise the knowledge, with a view to its sale for use, rather than that the price of the book, was the price also for the free use of the knowledge.

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This matter, however, has perhaps been sufficiently discussed in a former chapter.*

Willes says, “There is no incongruity, to reserve that right, [the right of multiplying copies,] and yet convey the free [unlimited] use of all the book teaches.” Yes, there is a plain incongruity; because the “multiplying copies in print,” is itself one of the “uses,” which is made of what the book teaches. We cannot multiply copies of the book, without using the ideas it communicates; for these ideas are an indispensable guide to the work of setting the type for the new copies. The use of the ideas, for this purpose, is generally the only “use,” from which the author derives his pecuniary profit. And it is because this “use” of them is lucrative, that he reserves it exclusively to himself. To say, therefore, that an author reserves to himself the copyright—that is, the exclusive right of using the ideas to multiply copies of the book—and yet that he conveys to others the free [unlimited] use of the same ideas, is a contradiction; because the unlimited use of the ideas, would include the use of them for multiplying copies of the book. He may, therefore, reserve the right of multiplying copies, and yet convey a right to use, in every other way, than that of multiplying copies, “all that the book teaches;” but he cannot reserve the copyright, “and yet convey the free [unlimited] use of all the book teaches.”

In reprinting the book, the ideas, which the book teaches, or communicates, are necessarily used as a guide to the work of printing; and the sole right of using them, for that purpose, is the copyright, or right of property, which the author has reserved to himself.

But Willes says that “multiplying copies in print is quite a distinct thing from all the book communicates.”

He obviously means, by this remark, that the right of “multiplying copies [of the book] in print, is quite a distinct thing from” the right of property in the ideas, “that the book communicates.” [208] But in this, he is in a great error; for it is the right of property alone, in the ideas, “that the book communicates,” that gives him the exclusive right to use them for the purpose of “multiplying copies [of the book] in print.”

Before the book was printed, all the ideas it describes, (or so many of them as were original with him,) were the sole property of the writer. By printing the book, and selling it, with a reservation of copyright, he conveyed a partial property in the ideas, to his readers. That is, he conveyed to them a right of possession, in common with himself, of all the ideas “the book communicated;” and (in most cases) he abandons (as being worthless to himself) his exclusive right to the “use” of them, for every purpose, except that of reprinting descriptions of them. The sole right of using them, for the purpose of reprinting descriptions of them, is a part of his original exclusive right of property, or dominion, in the ideas themselves. It is the part, of that original exclusive right of property, or dominion, which he has reserved to himself. The rest of his original right of property in them, he has (in most cases) conveyed, or abandoned, to be enjoyed by others, in common with himself. The copyright, therefore, is a remnant, remainder, or reserved portion, of his original exclusive right of property in the ideas “that the book communicates,” or describes; and it is nothing else.

This attempt, on the part of the three Justices, (or certainly on the part of Willes,) to make it appear, that the right of multiplying copies of a book, was “quite a distinct thing” from all right of property in, or dominion over, the ideas, “that the book communicates,” confused and destroyed their whole argument; for it was an attempt to prove a legal impossibility, viz.: the existence of a legal right, which attached to no legal entity.

The idea, that an author could retain an exclusive right of multiplying copies of a book, after he had parted with every vestige of exclusive property in “all that the book communicated,” is a perfect absurdity.

The copyright, or the right of multiplying copies, therefore, [209] although it is not necessarily a sole and absolute right of property, in the ideas themselves, for all uses and purposes whatsoever, is, nevertheless, a sole and absolute right of property, in the ideas themselves, for a particular use and purpose, to wit: that of printing books describing them. It is not, therefore, as these Justices assumed, a mere shadow, or phantom of a right, existing independently of all exclusive right of property whatever, in the ideas themselves. It is a substantial property right, in the ideas themselves, which the book describes, and which are necessarily used in reprinting the book.

If, as these Justices held, the exclusive right of multiplying copies of the book, were a right existing independently of all exclusive right of property, in the ideas described in the book, these questions would arise, viz.: Where did this anomalous right come from? How did it originate? What legal entity does it attach to? And how came it in the possession of the author of the book, in preference to any body else? And these questions, I apprehend, would be wholly unanswerable.

5. The argument of the three Justices—or rather of two of the Justices, Willes and Mansfield—in favor of the right, were imperfect for still another reason, viz.: that their definitions of Common Law were inaccurate, and indefinite.

Thus Justice Willes said, that “private justice, moral fitness, and public convenience, when applied to a new subject, make common law without a precedent; much more, when received and approved by usage.” p. 2312.

Lord Mansfield said, “I allow them sufficient to show ‘it is agreeable to the principle of right and wrong, the fitness of things, convenience, and policy, and therefore to the common law, to protect the copy [right] before publication.’ ”

If they had said simply that natural justice was common law (in all cases whatsoever, new and old, except perhaps those very few, which have before been alluded to, where some positive-institution to the contrary has been in practical efficient operation from time immemorial)—their definition would have been correct. It would also have been definite, precise, and certain, inasmuch [210] as natural justice is a matter of science. But when they add that “moral fitness, and public convenience,” and “the fitness of things, convenience, and policy,” must conspire with “private justice,” and “the principles of right and wrong,” in order to make Common Law, they introduce confusion and uncertainty into their definition; inasmuch as “moral fitness and public convenience,” “the fitness of things, convenience, and policy,” if considered as any thing separate from natural justice, are terms that convey no precise meaning, and open the door to an endless diversity of opinion. No stronger proof of this last assertion need be offered than the great diversity of opinion that exists as to the policy, expediency, and moral fitness, of the principle of property in ideas.

These terms are also improper and unnecessary ones to be introduced into a legal definition, for the reason that, in matters of government and law, natural justice itself has the very highest degree of “moral fitness;” it subserves, in the very highest degree, the “public convenience;” and its principles are the soundest of all principles of “public policy.” The simple definition, natural justice, is therefore complete and sufficient of itself; and needs no additions or qualifications.

Aston’s definition of Common Law was better, for he held that “Right reason and natural principles [were] the only grounds of Common Law, originally applicable to this question;” that “the principles of reason, justice, and truth,” were the principles of the Common Law; that “the Common Law, now so called, is founded on the law of nature and reason;” that it is “equally comprehensive of, and co-extensive with, these principles and grounds from which it is derived;” that “the Common Law, so founded and named, is universally comprehensive, commanding what is honest, and prohibiting the contrary;” that “its precepts are, in respect to mankind, to live honestly, to hurt no one, and to give to every one his own.” p. 2337—8, 2343—4.

Justice Yates, who opposed the copyright, held nearly the same views of the Common Law, with Aston. He said:

“It was contended ‘that the claim of authors to a perpetual copyright in their works, is maintainable upon the general principles [211] of property.’ And this, I apprehend, was a necessary ground for the plaintiff to maintain; for, however peculiar the laws of this and every other country may be, with respect to territorial property, I will take upon me to say, that the law of England, with respect to all personal property, had its grand foundation in natural law.” p. 2355.

SECTION IV.: Review of the Case of Donaldson and another, vs. Becket and another.

This case came before the House of Lords, in 1774,* on an appeal from an injunction against publishing a book, whose statutory term of copyright had expired.

The Lords directed the judges to give their opinions to the House on the following questions, viz.:

1. “Whether at common law, an author of any book or literary composition had the sole right of first printing and publishing the same for sale; and might bring an action against any person who printed, published and sold the same without his consent?”

2. “If the author had such a right originally, did the law take it away, upon his printing and publishing such book or literary composition; and might any person afterward reprint and sell, for his own benefit, such book or literary composition, against the will of the author?”

3. “If such action would have lain at common law, is it taken away by the statute of 8th Anne? And is an author, by the said statute, precluded from every remedy, except on the foundation of the said statute, and on the terms and conditions prescribed thereby?”

4. “Whether the author of any literary composition and his assigns, had the sole right of printing and publishing the same in perpetuity, by the common law?”

5. “Whether this right is restrained, impeached, or taken away by the statute 8th Anne?”

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On these questions eleven of the judges delivered their opinions. Lord Mansfield, from motives of delicacy, declined giving his opinion, although it was well known that he adhered to that he had given in the case of Millar vs. Taylor.

On the first of these questions, ten of the judges answered in the affirmative, and one in the negative.

Two of the ten, however, qualified their opinion, by saying that the author of a book “could not bring an action against any person who printed, published, and sold the same, unless such person obtained the copy by fraud or violence.”

On the second question, four of the judges answered in the affirmative, and seven in the negative.

On the third question, six of the judges answered in the affirmative, and five in the negative.

On the fourth question, seven answered in the affirmative, and four in the negative.

On the fifth question, six answered in the affirmative, and five in the negative.

The result, therefore, stated in brief, was as follows:

1. Eight of the judges (including Lord Mansfield) were of the opinion that “The author of any literary composition, and his assigns, had the sole right of printing and publishing the same in perpetuity, by the common law;” and four were of a contrary opinion.

2. Six of the judges (including Lord Mansfield) were of the opinion that this common law right was not taken away by the statute 8th Anne; and six were of a contrary opinion.

After the judges had delivered their opinions, the lords reversed the decree appealed from, by a vote of twenty-two to eleven. And this decision has since stood as the law of England.

How many of those lords, who voted for the reversal, did so in the belief that there was no copyright at common law; and how many did so in the belief that the common law copyright had been taken away by the statute, does not appear. The decision, therefore, does not stand as a decision that an author had not a [213] perpetual copyright at common law; but only as a decision that, if he had such a right at common law, that right had been taken away by the statute.

The diversity of opinion, both among the judges and the lords, deprive this decision of all weight as an authority. The only things really worthy of consideration are the arguments urged on the one side and the other. These arguments were very similar to those in the case of Millar vs. Taylor; and the rights of authors were lost from substantially the same errors, inconsistencies, and deficiencies, in the arguments of their advocates, that have been pointed out in that case.

To show the views that prevailed, on both sides, regarding the most prominent points in the case, I give the following extracts.

1. On the point of similarity between a mechanical invention, and a literary composition, I give the whole of the arguments, on both sides, so far as they are reported, as follows.

Wedderburn, counsel, speaking for the copyright, made the fatal concession that the author of a mechanical invention had, at common law, no property in his invention, but only in the machines he made; and for such absurd reasons as these. He said:

“It had been contended that the inventor of an orrery was in the same predicament as an author, when he published. Such an allusion came not to the point. The first sheet of an edition, as soon as it was given impression, in a manner loaded an author with the expenses of a whole edition; and if that edition was five thousand [in] number, the author was not repaid for his labor and hazard, till the last of the five thousand was sold. The maker of an orrery was at no other trouble and charge, than the time, ingenuity, and expense, spent in making one orrery; and when he had sold that one, he was amply paid. [!!] Orrery making was an invention, and the inventor reaped the profit accruing from it. Writing a book was an invention, and some profit must accrue after publication; who should reap the benefit of it? Authors, he contended, both from principles of natural justice, and the interest of society, had the best right to the profits accruing from a publication of their ideas.” p. 965.

Thurlow, counsel, in reply, against the copyright, said:

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“With regard to the observation, that the inventor of an orrery was not at all to be compared to the inventor of a book, because he was paid for his labor when he had sold one orrery; there was not a more fallacious doctrine in the power of words. The maker of a time-piece, or an orrery, stood in the same, if not in a worse predicament, than an author. The bare invention of their machines might cost them twenty of the most laborious years in their whole life; and the expense to the first inventors in procuring, preparing, and portioning the metals, and other component parts of their machines, was too infinite to bear even for a moment the supposition that the sale of the first orrery recompensed it. And yet no man would deny that after an orrery was sold, every mechanist had a right to make another after its model.” p. 969.

Baron Eyre, giving his opinion against the copyright, “considered a book precisely upon the same footing with any other mechanical invention. In the case of mechanic inventions, ideas were in a manner embodied, so as to render them tangible and visible; a book was no more than a transcript of ideas; and whether ideas were rendered cognizable to any of the senses, by means of this or that art, of this or that contrivance, was altogether immaterial. Yet every mechanical invention was common, whilst a book was contended to be the object of exclusive property! So that Mr. Harrison, after constructing a time-piece, at the expense of forty years labor, had no method of securing an exclusive property in that invention, unless by a grant from the state. Yet if he was in a few hours to write a pamphlet, describing the properties, the utility, and construction of his time-piece, in such a pamphlet he would have a right secured by common law; though the pamphlet contained exactly the same ideas on paper, that the time-piece did in clock-work machinery. The clothing is dissimilar; the essences clothed were identically the same.

“The baron urged the exactitude of the resemblance between a book and any other mechanical invention, from various instances of agreement. On the whole, the baron contended, that a mechanic invention and a literary composition exactly agreed in point of similarity; the one therefore was no more entitled to be the object of common law property than the other; and as the common law was entirely silent with respect to what is called literary property, as ancient usage was against the supposition of such a property, and as no exclusive right of appropriating those other operations of the mind, which pass under the denomination of mechanical inventions, was vested in the inventor by the common law, the baron, for these reasons, declared himself against [215] the principle of admitting the author of a book, any more than the inventor of a piece of mechanism, to have a right at common law to the exclusive appropriation and sale of the same.” p. 974.

Justice Ashurst, giving his opinion in favor of the copyright, said:

“Since the statute of monopolies, no questions could exist about mechanical inventions. Manufactures were at a very low ebb till queen Elizabeth’s time. In the reign of James the First, the statute of monopolies was passed. Since that act no inventor could maintain an action without a patent. It is the policy of kingdoms, and preservation of trade, to exclude them.” p. 977.

Justice Aston, giving his opinion in favor of the copyright, said:

“With regard to mechanical instruments, because the act against monopolies had rendered it necessary for the inventors of them to seek security under a patent, it could be no argument why in literary property there should be no common law copyright. He thought it would be more liberal to conclude, that previous to the monopoly statute, there existed a common law right, equally to an inventor of a machine, and an author of a book.” p. 981.

Baron Perrott, speaking against the copyright, said:

“An inventor of a machine or mechanical instrument, like an author, gave his ideas to the public. Previous to publication, he possessed the jus utendi, fruendi, et disponendi, [the right of using, enjoying, and disposing of,] in as full extent as the writer of a book; and yet it never was heard that an inventor, when he sold one of his machines, or instruments, thought the purchaser, if he choose it, had not a right to make another after its model. The right of exclusively making any mechanical invention was taken away from the author or inventor by the act against monopolies of the 21st of James the First. Which act saved prerogative copyrights, and which would have mentioned what was now termed literary property, had an idea existed that there was a common law right for an author or his assigns exclusively to multiply copies.” p. 982.

Lord Chief Baron Smythe, speaking for the copyright, said:

“As to mechanical inventions, he did not know that, previous to the act of 21st James the First, [the statute against monopolies,] [216] an action would not lie against the person who pirated an invention. An orrery none but an astronomer could make; and he might fashion a second, as soon as he had seen a first; it was then, in a degree, an original work; whereas, in multiplying an author’s copy, his name, as well as his ideas, were stolen, and it was passed upon the world as the work of the original author, although he could not possibly amend any errors which might have escaped in his first edition, nor cancel any part which, subsequent to the first publication, appeared to be improper.” p. 987.

Lord Chief Justice De Grey, speaking against the copyright, said:

“Abridgments of books, translations, notes, as effectually deprive the original author of the fruit of his labors, as direct particular copies; yet they are allowable. The composers of music, the engravers of copper-plates, the inventors of machines, are all excluded from the privilege now contended for; but why, if an equitable and moral right is to be the sole foundation of it? Their genius, their study, their labor, their originality, is as great as an author’s; their inventions are as much prejudiced by copyists, and their claim, in my opinion, stands exactly on the same footing. A nice and subtle investigation may, perhaps, find out some little logical or mechanical differences, but no solid distinction in the rule of property that applies to them, can be found.” p. 990.

Lord Camden, speaking against the copyright, said:

“With respect to inventors, I can see no real and capital difference between them and authors. Their merit is equal; they are equally beneficial to society; or perhaps the inventor of some of those masterpieces of art, which have been mentioned, have there the advantage. All the judges, who have been of a different opinion, conscious of the force of the objection from the similarity of the claim, have told your lordships they did not know but that an action would lie for the exclusive property in a machine at common law, and chose to resort to the patents. It is, indeed, extraordinary that they should think so; that a right that never was heard of, could be supported by an action that never was brought. If there be such a right at common law, the crown is an usurper. But there is no such right at common law, which declares it a monopoly. No such action lies. Resort must be had to the crown [that is, to the king’s patent] in all such cases.” p. 999.

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The foregoing extracts contain all that was said in the case, or at least all that is reported, relative to the similarity between the rights of authors and inventors, to a common law right of property, in their ideas. If the advocates of the rights of authors had had the courage to advocate also the rights of inventors, as stoutly as those, who resisted the rights of authors, insisted upon the similarity of rights in the two cases, a different decision of the cause might possibly have been effected. At any rate, such an impulse would have been given to inquiry in the true direction, as would very likely have resulted ere this in the full establishment of the rights of both authors and inventors.

The only argument, given against the copyright, that had any intrinsic weight or merit, was that of Lord Chief Justice De Grey, which has already been commented upon in a former chapter;* and need not be further noticed here.

Some of Lord Camden’s arguments are worthy of notice; not however for their intrinsic weight, but because of the high judicial rank of their author; and because also they seem to have had great influence with the lords, in inducing them to vote against the copyright.

1. He held that the want of precedent to sustain the right, was fatal to it. Thus he said:

“That excellent judge, Lord Chief Justice Lee, used always to ask the counsel, after his argument was over, ‘Have you any case?’ [precedent.] I hope judges will always copy the example, and never pretend to decide upon a claim of property, without attending to the old black letter of our law; without founding their judgment upon some solid written authority, preserved in their books, or in judicial records. In this case I know there is none such to be produced.” p. 998.

And again, alluding to the idea, thrown out by Aston and Smythe, that but for the statute against monopolies, an action at common law might be sustained against one who should pirate a mechanical invention, he said:

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“It is, indeed, extraordinary that they should think so; that a right, that never was heard of, could be supported by an action that never was brought.” p. 999.

I repeat his words so far as to say, “it is, indeed, extraordinary” that an ex-Lord Chancellor should utter such opinions as these. If, as he pretends, “a case,” a precedent, is necessary to make Common Law, we are bound at once to renounce the whole body of the acknowledged Common Law as illegitimate, and declare the impossibility of there being any such thing as Common Law at all; because there was a time when a common law “case” had never been decided; when indeed a common law right had “never been heard of;” when a common law action “had never been brought;” and when, of course, according to Lord Camden’s argument, no common law court had any just authority “to decide upon a claim of property.” All common law decisions hitherto, have, therefore, on his theory, been mere usurpations, and of course can be no authority now; and all our common law rights of property, of every name and nature, of necessity fall to the ground. This is the legitimate conclusion of his argument.

This argument of the want of precedent is utterly worthless, where the case is a clear one on principle. New questions in common law—or, what, on this point is the same thing, in natural law—have been continually arising ever since mankind first had controversies with each other about their respective rights; and old ideas have given place to new ones, as knowledge has progressed. And such will continue to be the course of things as long as man is a progressive being, and has rights to be adjudicated upon. And the fact, that such or such a particular question has never arisen before, or that legal science has never heretofore been sufficiently advanced to decide it correctly, is no reason at all why the principles of justice and reason are not now the true and imperative rules for its decision. Neither the ignorance, nor the injustice of the past, has any innate authority over the present, or the future. They have not altered the nature of [219] men’s rights, nor the nature of truth, nor abolished the obligations of justice. If mankind have not a right to the benefit of all new discoveries in law, as in the other sciences, as fast as they are made, they have no right to any old discoveries of the same kind; for the latter were as illegitimate in their origin as the former; and on this principle, the law of nature would stand shorn of her authority to control either the decisions of courts, or the conduct of men.

This pretence of the necessity of a precedent, is the pretence of a pettifogger, and not the argument of a lawyer. Lord Camden himself, in another part of his speech, virtually acknowledges its unsoundness; for he says, “Our law [the common law] argues from principles, cases, and analogy.” (p. 995.) Yes, from “principles” and “analogy,” no less than from “cases.” And he should have said, “from principles and analogy,” in preference to “cases;” for wherever previous “cases” have been decided contrary to the general “principles and analogies” of the common law, courts are bound to overrule them, in all subsequent decisions.

Lord Camden’s great predecessor in the chancellorship, Lord Bacon, inculcated no such narrow and absurd ideas, as to the necessity of precedents, or their authority to deprive mankind of the benefits of whatever knowledge they might afterwards acquire. Speaking “Of Cases Omitted in Law,” he says:

“The narrow compass of man’s wisdom cannot foresee all the cases which time may produce; and therefore cases omitted and new do often arise.” He then gives rules for judging of these cases; among which rules is this. “Let reason be a fruitful, and custom a barren thing.”*

It requires no words to prove which was the greater philosopher of the two—Lord Bacon, when he said that mankind did not know every thing from the beginning, and that, in judging of new questions, reason should be allowed to be a fruitful, and custom [220] but a barren, source of authority; or Lord Camden, when he held it indispensable that we should have a precedent for every thing—or, what is virtually the same thing, that mankind have now a right to use only that knowledge, which was possessed at the origin of the race; and, in truth, not even that.

But, leaving these considerations of an abstract nature—sufficient reasons have already been given in this chapter, why inventors have never brought their common law rights before the English courts for adjudication, without supposing it to have been owing to any want of solidity in the rights themselves. And when the judges of England, for hundreds of years, have been the servile tools, and nothing but the servile tools, either of kings or parliaments, or both; and, as such, have habitually withheld all the constitutional and common law rights of the people, at the slightest bidding of arbitrary power; it ill becomes one of these judges now to offer, as an argument against the existence of one of these proscribed common law rights, the fact that the right has never been brought before themselves for adjudication, with the certainty that it would be spurned and trampled under foot by them; and with the further certainty that such a precedent, once created, would be cited, by themselves and their successors, for an indefinite period thereafter, as a sufficient warrant for similar outrages in all subsequent cases.

When English judges shall have shown sufficient reverence for that Common Law, which they have been sworn to support, to maintain it against the authority of unconstitutional legislatures and legislation, it will be quite as soon as they can, with any decency even, offer such an objection as this of Lord Camden’s. And it would be but a poor compliment to their understandings, to suppose that, even then, they would seriously entertain it; inasmuch as the question of the Common Law rights of inventors, is one, which, in the nature of things, would be likely to acquire prominence, only in such an advanced state of both civilization and freedom, (especially the latter,) as can hardly be said to [221] have ever existed in England; certainly not until within a comparatively recent period.

2. Another of Lord Camden’s arguments was this, viz.: “If there be such a right at common law, the crown is an usurper.” That is, if inventors have a common law right of property in their inventions, the crown is an usurper in granting them patents, on the assumption that they have no such rights, but can only enjoy such privileges as he, in his “gracious pleasure and condescension,” may see fit to grant them.

This argument, that “the crown is an usurper,” can hardly need an answer, in America. It certainly is not one that need frighten an American court out of its senses, or even out of its integrity; although it is one that would be very likely to frighten an English court out of both. And especially would it be quite certain to produce these effects upon such a body as the lords, who themselves, both in their legislative and judicial capacities, are, constitutionally, nothing but usurpers. They, of course, would not dare to gibbet the king, for acting as their own accomplice in usurpation. And hence the weight, which, we may reasonably presume, this argument had, in the decision of the question before them.*

But Lord Camden need not have been alarmed at the apprehension, that if inventors were allowed their common law rights, [222] the crown would, by consequence, have been proved an usurper. The granting of patents was not, originally—whatever it be now—an act of usurpation on the part of the king. It was a legitimate act of legislation, at a time when the legislative power was practically, as it always was constitutionally, vested solely in himself. And it was also such an exercise of that power, as showed quite as much regard for justice, and for the constitutional and common law rights of the people, as could reasonably be expected of him, in the dark and barbarous age, in which the granting of patents originated. It was, in short, an honest attempt to do equity—according to the degree of knowledge then existing on the subject—towards acknowledged public benefactors; and, at the same time, to promote the interests of the people, by encouraging new inventions. The patent was simply an authenticated copy of a statute, passed by the king, enacting that the inventor, or the introducer of an invention, should have an exclusive privilege to use the invention for a specific term, as a just reward for his labors, and for the benefits he had conferred upon the nation. This patent, or copy of the statute, authenticated by the king’s seal, was given to the patentee, that he might produce it in courts or elsewhere, in proof of the existence of the statute itself; the statutes not being generally published in those days, except by proclamation. And this statute, so authenticated, was then entitled to respect and observance, by the judges and juries throughout the kingdom, so far as they should think it consistent with the common law, and no further. Such was the original, constitutional nature of a patent, for a mechanical invention.

The statutes, or patents, therefore, which secured to inventors the exclusive use of their inventions, were perfectly consistent with the common law, for the term for which they were in force; and they were inconsistent with the common law only in this, that they limited the rights of the inventors to a fixed term, instead of securing them in perpetuity.

The most important—if not the only important—“usurpations” [223] there have been in the matter, have been of a more modern date, as follows. 1. The usurpations of an unconstitutional legislature—the Houses of Lords and Commons—in prohibiting the king from granting patents to inventors for any more than a limited time. 2. The usurpations of the judiciary, in holding that patents, though granted only for a brief term, were inconsistent with the common law, and therefore to be defeated, if possible, by principles of construction, which had no just application to them, and by groundless imputations of fraud, on the part of the patentee, in cases of the slightest variation from accuracy in the specification.

So far, therefore, from the king’s “usurpation” being proved, by proving the common law right of inventors, to an exclusive property in their ideas, the only way of disproving his usurpation, in granting such patents at this day, is by asserting, instead of denying, that right; and also by asserting that the patent is granted to make the right more secure than it would otherwise be.

The prerogative of granting such patents, is a mere relic of the ancient sole legislative power of the king. As such, it is perfectly constitutional. While the right, which it is used to protect, is also a perfectly constitutional one, inasmuch as it has its immutable foundations in the principles of that common, or natural law, which alone, with very few exceptions, it was the design of the English constitution to maintain.

3. Coming to the question of “policy,” Lord Camden said:

“If there be no foundation of right for this perpetuity, by the positive laws of the land, it will, I believe, find as little claim to encouragement upon public principles of sound policy, or good sense. If there be any thing in the world common to all mankind, science and learning are in their nature publici juris, [subjects of common right,] and they ought to be free and general as air or water. They forget their Creator, as well as their fellow creatures, who wish to monopolize his noblest gifts and greatest benefits. Why did we enter into society at all, but to enlighten one another’s minds, and improve our faculties, for the common welfare of the species? Those great men, those favored mortals, those sublime spirits, who share that ray of divinity which we [224] call genius, are intrusted by Providence with the delegated power of imparting to their fellow creatures that instruction which heaven meant for universal benefit; they must not be niggards to the world, or hoard up for themselves the common stock. We know what was the punishment of him who hid his talent, and Providence has taken care that there shall not be wanting the noblest motives and incentives for men of genius to communicate to the world those truths and discoveries, which are nothing if uncommunicated. Knowledge has no value or use for the solitary owner; to be enjoyed it must be communicated. ‘Scire tuum nihil est, nisi te scire hoc sciat alter.’ [Your own knowledge is nothing, unless another know that you possess it.] Glory is the reward of science, and those who deserve it, scorn all meaner views. I speak not of the scribblers for bread, who tease the press with their wretched productions; fourteen years is too long a privilege for their perishable trash. It was not for gain, that Bacon, Newton, Milton, Locke, instructed and delighted the world; it would be unworthy such men to traffic with a dirty bookseller for so much a sheet of a letter press. When the bookseller offered Milton five pound for his Paradise Lost, he did not reject it, and commit his poem to the flames; nor did he accept the miserable pittance as the reward of his labor; he knew that the real price of his work was immortality, and that posterity would pay it. Some authors are as careless about profit as others are rapacious of it; and what a situation would the public be in with regard to literature, if there were no means of compelling a second impression of a useful work to be put forth, or wait till a wife or children are to be provided for by the sale of an edition? All our learning will be locked up in the hands of the Tonsons and Lintons of the age, who will set what price upon it their avarice chooses to demand, till the public become as much their slaves, as their own hackney compilers are.” 17 Parl. Hist. 999-1000.

I doubt if such poor fustian and sophistry as this can deserve an answer, even when coming from an ex-Lord Chancellor. Yet it may not be unworthy of attention, as an index to the motives which finally controlled the decision of the Lords; for it is fair to presume that Lord Camden had at least a tolerable understanding of the intellectual and moral attributes of the body he was addressing, and of the influences most likely to determine their adjudication.

If, then, he meant to lay it down as a rule, that “public principles [225] of sound policy and good sense” require that all “those great men, those favored mortals, those sublime spirits, who share that ray of divinity, which we call genius,” should be placed without the pale of the common principles of justice, and deprived of all their natural or common law rights of property, we can have no difficulty in appreciating his ideas of “public principles of sound policy and good sense.” But if he do not contemplate this general destruction of all their common law rights of property, it is not so easy to see on what “principle” it is, that he selects their intellectual productions, as special objects of confiscation.

If there really were any “men” so “great,” any “mortals” so “favored,” any “spirits” so “sublime,” that their bodies could live on the “glory” and “immortality,” which “posterity will pay,” there might be—what there is not now—some little reason why society, while being enriched and enlightened by them, should be execused for robbing them of all other means of subsistence. But since the greatest of men, the most favored of mortals, and the sublimest of spirits, will just as soon die without eating, as any of the rest of mankind, it is quite indispensable, in order that they may live, and give the world the benefit of their labors, that, while laboring, they have some nutriment more substantial than prospective “glory” and “immortality.”

But Lord Camden assumes—as men more ignorant, and therefore more excusable, than himself, have often done—that valuable ideas cost their authors neither time nor labor; that the production of them interrupts none of those common pursuits, by which other men procure their subsistence; and hence he brands them as “niggards,” and “rapacious,” if they demand any price for the invaluable commodities they offer to mankind. Yet he well knew the injustice and falsehood of such an idea. He knew that the greatest geniuses have usually been among the greatest laborers in the world. So rarely indeed has genius produced any thing valuable without effort, that it has been a very common [226] opinion among men, that genius itself was only labor in its highest intensity.

More shameless meanness, injustice, or falsehood has seldom been seen, than in this attempt of Lord Camden to deprive the most useful and meritorious, as well as the most self-sacrificing individuals, of the benefit of the common principles of justice, in their efforts to live by performing for society the most valuable labors.

Perhaps, however—not to do him injustice—it may be thought that a clue to his reasons for this apparently arbitrary exception of intellectual property from the protection of the law, is to be found in his remark, that,

“If there be any thing in the world common to all mankind, science and learning are in their nature publici juris, [subjects of common right,] and they ought to be as free and general as air or water.”

The answer is, that there is not “any thing in the world”—not even “air or water”—that is, “in its nature,” “common to all mankind,” or “free or general,” in any such sense as he assumes it to be—that is, in any sense that forbids its being made private property to any possible extent, to which it is practicable for individuals to take exclusive possession of it.

“Air” and “water” are free and common to all mankind, only in the same sense in which land, and trees, and gold, and iron, and diamonds, and all other material things, are free and common to them. And that sense is this. Land, trees, gold, iron, and diamonds, in the state in which they originally exist in nature, to wit, unappropriated, are free and common to all mankind—that is, they are “free” to be appropriated, or made private property, by individuals; and all mankind have equal rights, and equal freedom, to appropriate them, or make them their private property. In this sense, those commodities are “free and common to all mankind,” and in no other. So soon as they are thus appropriated, they are no longer free or common to all mankind, but have become the private property of the individuals [227] so appropriating them; who thenceforth have a right of absolute and exclusive dominion over them against the world. It is precisely the same with “air and water.” In their natural condition—that is, unappropriated—they are free and common to all mankind—that is, free to be appropriated, or made private property. And all mankind have equal rights and equal freedom to appropriate, or make them their private property. In this sense, air and water are free and common to all mankind, and in no other legal sense. So soon as they are thus appropriated, they are no longer free or common to all mankind; but have become the private property of the individuals so appropriating them; who thenceforth have a right of absolute and exclusive dominion over them, against the world, until they either consent to part with the right, or until they are deprived of it by the operation of some physical law of nature which they cannot resist.

There is nothing, therefore, “in their nature,” as Lord Camden assumes, that forbids “air or water” to be made private property; and, as a matter of fact, there are perhaps no material substances in the world, that are more frequently appropriated, or made private property, than air and water. At every breath we make private property of so much air as we inhale. When we exhale it, we abandon our right of property in it. We abandon our right of property in the air we exhale, for two reasons, namely, choice, and necessity; from choice, because it is not worth preserving—air being so abundant that we have no necessity to retain any portion of it for a second use; from necessity, because we exhale it into the surrounding air, where we can no longer identify it, as that which has been ours.

We make private property of air also, when we inclose it in our dwellings, and warm it to adapt it to our comfort. We abandon our right of property in it, when we open our doors and windows to let out the air that has become impure, and to let in that which is pure.

This air, which we thus inclose in our dwellings, and, by warming or otherwise, fit for our use, is as much private property, [228] while it is thus inclosed, as the gold or the diamonds we have digged from the earth; and no man has any more right to inhale it, without our consent, or to open our doors and let it escape, than he has to steal our gold or our diamonds.

Men do not often buy and sell air, solely because it is so abundant, and so easy of acquisition by all, that it will seldom bring any price in the market; and not because, as Lord Camden assumes, there is any thing “in its nature,” that legally forbids our making merchandise of such quantities as we can take possession of.

The same is true of water as of air. Hardly any thing, except air, is more frequently made private property than water. Every time a man dips water from a spring or a stream, he makes it his private property. It at once becomes his, against the whole world besides. And no man has a right to object to its being made private property, on the ground that it is “in its nature,” free and common to all mankind. In its natural condition it is free and common to all mankind, only in the sense of being unappropriated—the property of no one—and therefore free to be appropriated by whomsoever pleases to take possession of it, and make it his property. It is only by being thus appropriated, and made private property, that it can be made useful to mankind.

The water in the ocean is free and common to all mankind, only in the sense that it is unappropriated—the property of no one—and therefore free to be appropriated by any one at his pleasure or discretion. And it is only by appropriating it, and making it private property, that it is made of any use to mankind. Thus that portion of the ocean, which a man, at any particular moment, occupies with his body, his vessel, his anchor, or his hook, is, for that moment, his private property against the world. When he removes his body, vessel, anchor, or hook, he abandons his private property in the water he once possessed. He makes this abandonment, both from choice, and from necessity; from choice, because he no longer needs that particular water for use; [229] and from necessity, because he can no longer identify it as that which had been his.

Water is not only a legitimate object of private property, and continually converted into private property, but it is, to a very considerable extent, made an article of merchandise. For example, large quantities of water are brought, in aqueducts, into cities for sale. Single individuals sometimes bring it in, in small quantities, for the same purpose. In its congealed state, it is sent, in large quantities, to distant parts of the world as merchandise. Yet nobody, not even Lord Camden, was ever foolish enough to object to the legitimacy of this commerce, on the ground that water was, “in its nature,” free and common to all mankind, in the sense of being incapable of legal appropriation.

The idea, that “air and water”—meaning thereby the great body of air and water—are the common property of all mankind—using the term property in its legal sense—is a very common, but a very erroneous one; and it is one from which many fallacious arguments are drawn, that this, that, and the other species of property ought also to be free and common to all mankind. Whereas the truth is that the great body of air and water are not property at all. They are neither the “common property of all mankind,” nor the private property of individuals. They simply exist unappropriated; free to be made property; but when appropriated by one, they are no longer free to be appropriated by another.

The remark, therefore, that air and water are “free and common to all mankind,” can never be used, with truth, to signify that one man has any more legal right to interfere with, or lay any claim to, such quantities of air or water as another man has taken possession of or appropriated, than he has to interfere with, or lay claim to, such quantities of land, gold, iron, or diamonds, as another man has appropriated.

If, therefore, when Lord Camden speaks of air and water as being, “in their nature,” free and common to all mankind, he mean that they cannot lawfully or rightfully be appropriated, or [230] made private property, he manifests a degree of ignorance, thoughtlessness, or mendacity, that is entirely disgraceful to him; since there is no legal proposition whatever, that is more entirely clear, or more universally acted upon, than that every individual has a natural right to make private property of air and water, to any possible extent that he can take possession of them, without interfering with others in the exercise of the same right. Air and water would be of no use to mankind, unless they could be made private property.

But if he only mean that air and water, unappropriated, are free and common to be appropriated, and made private property, by all mankind, then his assertion that “science and learning” ought to be equally free—that is, equally free to be appropriated, and made private property—only makes against the very point he was trying to establish, viz.: that science and learning ought not to be made private property. And there is consequently no sense whatever in his argument. It is mere idiocy.

If he mean that science and learning ought to be as free to be appropriated, or made private property, as air or water, neither authors nor inventors can object to the principle; for that is the very principle they themselves are contending for. They admit that the boundless fields of knowledge, like the boundless fields of air and water, are open and free to all mankind alike; and all they claim is, that each individual shall have an exclusive property in all the knowledge that he himself, by the exercise of his own powers, and without obstructing others in the exercise of theirs, can take exclusive possession of; that they have the same natural right to an exclusive property in their exclusive acquisitions of knowledge, which they and all other men have in their exclusive acquisitions of air, of water, of land, of iron, of gold, or of any other material commodities, which, so long as they remained unappropriated, were free and open to all mankind—that is, free and open to be appropriated; but which, when appropriated, are no longer free and open to all mankind, but are the private property of the individuals who have appropriated them. Can [231] Lord Camden, or any one else, deny that the principle is as sound, or as applicable, in the one case, as in the other?

But perhaps it may be said that Lord Camden’s remark is to be taken in still another, and an economical sense, viz.: that “science and learning” ought to be as abundant, as easy of acquisition, and therefore as cheap, as “air or water.” If this be what he means, all that need be said in reply is, that the Author of Nature happened to differ from him in opinion. If He had been of Lord Camden’s mind, as to what was best for mankind in this respect, He would undoubtedly have made all the knowledge, which men ordinarily need or desire, as abundant, as easy of acquisition by all, and consequently as cheap, as are their requisite supplies of air and water. But He has not done so. On the contrary, while He has made many kinds of knowledge very easy of acquisition, and therefore very cheap, and even valueless, as articles of merchandise, He has made other kinds attainable, in the first instance, only by great toil and effort. These being of great value to mankind, and produced only by great labor, are capable of commanding a price in the market; because it is cheaper for men to buy them than to produce them for themselves. And this price, by the laws of trade, which are but the laws of nature, will be governed—like the prices of all other commodities—by the cost of production, and the demand for use. And there is no more reason why the producers of these rare, costly, and valuable ideas, should give them to the world, and receive no compensation for the labor of producing them, than there is why the producers of any other valuable commodities should give them to the world, and receive no compensation for their labor in producing them.

But Lord Camden’s principle is, that when one man has digged deep, and toiled hard, to acquire knowledge, another man should, by law, be free to share it with him, without his consent, and without making him any compensation. Was he ever willing to apply that principle to “water?” When he had digged deep, or toiled hard, to obtain water, was he willing that another, who [232] had pursued his own pleasure or interests meanwhile, should, by law, have equal rights in it with himself, without asking his permission, or making him any compensation for his labor? Any thing but that! His principle, in regard to “water,” and to all material commodities, was—as he himself expressed it in regard to land, which is, “in its nature, as free and common to all mankind as air or water”—that “No man can set his foot upon my ground, without my license.”*

But he says, “They forget their Creator, as well as their fellow creatures, who wish to monopolize his noblest gifts and greatest benefits.”

This affectation of piety means that the producers of ideas are morally bound to give the products of their labor as freely to all mankind, as the Creator does the products of nature—that is, without money and without price. If men were like their Creator, not dependent upon their labor for subsistence, there would be some reason in such fantastical morality as this. But while the producers of ideas have bodies to be fed and clothed, it is as ridiculous to talk of their being under a moral obligation to give the products of their labor freely to all mankind, as it would be to talk of the moral obligation of the producers of food or clothing to give the products of their industry freely to all mankind. In reality, many of the producers of ideas are the greatest practical producers of food and clothing; for they supply that knowledge, which is the most efficient instrument in producing food and clothing.

Did Lord Camden, as judge or chancellor, ever act upon the principle that it was his duty to give his ideas freely to all mankind? Not he. He demanded titles, and salaries, and pensions, in exchange for his ideas; salaries and pensions too, not granted to him by voluntary contract on the part of the people who paid them—as are the prices paid to authors and inventors—but [233] extorted from them by that arbitrary government, which he ought to have resisted, and, if possible, overthrown; but of which he choose rather to make himself the instrument. It was quite consonant with his ideas of law and morality, to assist this tyrannical power in actually plundering the people of their money, that it might be paid over to himself for his own false and worthless ideas; but it was, in his view, immoral and illegal for authors and inventors to sell their ideas for what they would bring, on voluntary contract, in free and open market.

Only two days after receiving his office as Lord Chancellor, this superlative moralist and judge wrote to the minister, to have his salary, pension, and equipage money, secured to himself, and a lucrative office for his son.* And the opinion he gave, in this case of Donaldson vs. Becket, vindicating the crown against the charge of usurpation, in denying the rights of inventors, and exhorting his own fellow usurpers, the Lords, to deny and destroy the rights of authors, is a specimen of the ideas he intended to furnish the government in return. To sell himself and all his false and tyrannical political ideas to the government, was, in his opinion, a perfectly legitimate commerce; but the sale of useful knowledge to the people, was an act interdicted by law and morality. There have been many such judges and moralists as he.

But he says that men of genius “are intrusted by Providence with the delegated power of imparting to their fellow creatures that instruction, which Heaven meant for universal benefit.”

Yes, men of genius are undoubtedly designed by Providence to labor intellectually for the benefit of mankind. Yet it was [234] left for his lordship to announce the discovery of a special revelation, to the effect that it was also the design of Providence that they should live without eating; or, what is the same thing, that they should receive nothing in exchange for the products of their labor. This important revelation he thinks he has found in the parable of the slothful servant. “We know,” says he, “what was the punishment of him who hid his talent.” Selling ideas in the market, this sagacious lord holds to be equivalent to hiding them in the earth. They can be of no use to mankind, unless given to them “freely!”

Up to this time, the world had never, I believe, conceived this parable to be a rebuke for not giving away one’s talent; but only for not trading with it, or using it, in a way to bring an income. But taken in this last sense, it would not have greatly benefitted his lordship’s argument.

This new reading of the scripture, however, was quite apropos to the question before them, for the reason that English lords have, of course, been unable wholly to escape the taint of the common humanity, the common justice, and the common sense, of the common people; and there is no knowing how far their weaknesses, in those respects, might have carried them, in the adjudication of this question of intellectual property, if the conscientious and religious scruples, which their order have for ages entertained, against allowing mankind to enjoy the fruits of their labor, had not been appealed to, and fortified, by the authority of scripture.

Had this new interpretation of the parable, fallen from one of those dignitaries of the church, who occupy seats in the House of Lords, apparently to lend the light, as well as the sanction, of religion to the action of that body, we might have thought that it accorded perfectly, both with his profession, and his practice. But coming from a lay lord, and addressed to other lay lords, in their capacity of common law judges, and taken in connexion with the decision which followed, it is perhaps to be regarded only as an illustration of the sense, in which they hold Christianity to be a part of the Common Law.

[235]

But Lord Camden says further, that the producers of ideas “must not be niggards, and hoard up for themselves the common stock.”

This, we are to suppose, is but another specimen of the reasonings, by which men’s rights are determined in the House of Lords.

There would plainly be as much sense in saying that those who produce wheat, and bring it to market, and ask a price for it, are therefore “niggards to the world, and hoard up for themselves the common stock,” as there is in saying it of the producers of ideas. The producer of ideas, like the producer of wheat, brings the products of his labor to market to-day, that he may exchange them for the means of subsistence, and thus live and be able to produce other ideas to-morrow; which other ideas he will bring to market in like manner. He sells his ideas, too, or at least many of them, for one per centum of their actual value for economical purposes. If this is being a “niggard to the world, and hoarding up for himself the common stock,” it is unfortunate for the world that there have been so few such niggards in it; for it is only the want of a sufficient number of them, that has kept mankind in ignorance and poverty, and rendered them the easy dupes of such hypocrites as Camden, and the easy prey of such robbers as those to whom he was addressing his arguments.

But he says again, “What a situation would the public be in with regard to literature, if there were no means of compelling a second impression of a useful work to be put forth, or wait till a wife or children are to be provided for by the sale of an edition? All our learning will be locked up in the hands of the Tonsons and Lintons of the age, who will set what price upon it their avarice chooses to demand.”

This appalling interrogatory can perhaps be best answered by presenting another, which is at least equally alarming, and equally rational, viz.: What a situation would the public be in with regard to wheat, if there were no means of compelling the producers to bring it to market, until their wives or children were to be provided for by the sale of it? All the wheat will be locked up in the hands of the owners, who will set what price upon it their avarice chooses to demand.

[236]

The only remedy for this frightful state of things, would be, according to Lord Camden’s notions of “sound policy and good sense,” to declare that wheat ought to be as free and common to all mankind as air or water; that men forget their Creator, as well as their fellow creatures, when they claim to own the wheat they have produced by their labor; that they must not be niggards to the world, and hoard up for themselves the common stock; that they should bear in mind the punishment of him who hid his talent; that the man who freely gives away his wheat—especially if he do it in sufficient quantities to astonish, as well as to supply, the world, will be sufficiently rewarded by the sublunary “glory” and “immortality” which “posterity will pay;” and therefore it ought to be adjudged, by a nest of usurpers and tyrants, calling themselves the House of Lords, that those who produce wheat, have no exclusive right of property in it.

All this would be carrying out Lord Camden’s theory to the letter, and nothing more.

But his lordship’s resources, on this question, are not yet exhausted. He has one argument left, which perhaps overtops in dignity, as much as it overbalances in weight, all that have preceded it. It is this.

“It would be unworthy such men [as Bacon, Newton, Milton, and Locke], to traffic with a dirty bookseller!”

If these great men had been living at the time, they could not have felt otherwise than grateful for the anxiety which Lord Camden manifested for the preservation of their dignity; although they might, perhaps, have thought it was carrying the point a little too far, for him to think of taking the care of it out of their own hands. So excessive a guardianship as that, they might possibly have felt constrained to decline.

It is nevertheless true, that booksellers are—at least many of them—very “dirty” fellows. Yet, even here, there may be a question, as to who are the dirty, and who the respectable, ones. And on this point, I apprehend the world are likely to differ from his lordship, as widely perhaps as on the true interpretation of [237] scripture, or the true “principles of sound policy and good sense.” He evidently esteemed those booksellers dirty, who pay authors for their works; while the world may possibly think those the respectable, and the others the dirty ones. It will be a difficult question to settle, if it shall be found that two such authorities, as the world and his lordship, differ in regard to it.

Lord Camden doubtless thought it would be much more consistent with the true dignity of a man of genius, to live, as so many men of genius have lived, in humiliating dependence upon some lord, who should condescend to patronize him, or to become a pensioner and flatterer of the crown, than to live by selling his works to the booksellers, and through them to the people. And he attempts to screen Milton from the disgrace, which he assumes would have attached to him, if he had accepted the five pounds for his Paradise Lost, out of any regard to the worldly value of that sum. He evidently imagines that Milton must have accepted it in some poetic or figurative sense, rather than from any such vulgar motive as a consideration of how much bread or meat it would buy. But in this he is unquestionably mistaken. It is morally certain that the price of the immortal poem went to pay butchers and bakers, the same as it would have done, if it had been the earnings of a cobbler; and that he accepted the five pounds, solely because the poem would bring no more, and because the utility of even such a sum as that, was something which he could not afford to disregard.

We can imagine some very tolerable reasons why lords should not “patronize” Milton, nor kings grant him pensions; such reasons, for example, as that, notwithstanding he was a poet, he had a somewhat inveterate habit of expressing the homely opinion, that, when kings did not behave themselves well, the people ought to cut their heads off. Nothing is more natural than that this vulgar turn of mind should have injured his prospects with the great, and consequently made it necessary for him to live by his own labor, independently of their bounty. Perhaps if he had been a contemporary of Lord Camden, the latter might have taken pity on him, appreciated him, and offered to instruct [238] him in the art of living in a manner more consistent with the dignity of a gentleman. It would be interesting to know the particular way, in which his refined lordship would have introduced the subject of a royal pension, or some nobleman’s “patronage,” to the poor, but proud old Roundhead. Doubtless a prudent regard for his own dignity would have suggested to him, that such a proposition could be made with safety, only at a respectful distance from the poet’s boots.

If the scholars and poets of England, since Milton’s time, had inherited a tithe of his spirit, with but a tithe of his genius, no such body of usurpers as the House of Lords would have ever taken it upon themselves to adjudge, either that authors had no right of property in the products of their labor, or even that, if they had such rights by nature, parliament had authority to destroy them. In fact, there would, in 1774, have been no such judicial or political body as the Lords in existence.

If men ever deserved the political oppressions, to which they were subjected, there is perhaps no class of persons, who have more richly deserved to have their rights stricken down by the hand of usurpation, than those scholars of England, who have lacked the spirit and the principle to defend the constitution and liberties of their country, against the tyranny of such usurpers as the Houses of Lords and Commons.

I have now bestowed, perhaps more attention than they deserved, upon Lord Camden’s arguments in favor of what he calls those “public principles of sound policy and good sense,” which forbid that authors should be acknowledged to have any common law right of property in their ideas. Perhaps nothing could illustrate more forcibly the degradation of literature, and of literary men, than the fact that such false, frivolous, absurd, and shameless reasons could be gravely urged by an ex-Lord Chancellor, before the highest judicial tribunal of the kingdom, as arguments against the rights of intellectual men, and should apparently have produced the effects he designed by them, without bringing either upon himself or the tribunal, one effective retributory blow. It may reasonably be doubted whether, in five [239] hundred years, the House of Lords, or indeed any other judicial tribunal, have struck down a principle, that was more important, or even equally important, to the progress of mankind in wealth, civilization, and freedom. And yet the immediate victims—men too, whose attainments and habits ought to fit them peculiarly for the defence of their own and the public rights—tamely acquiesce in the wrong for four-fifths of a century.

The injustice was done, too, under circumstances of unusual insult and oppression—that is, it was done on the most palpably frivolous, false, heartless, and ridiculous pretexts—(admitting that Lord Camden’s reasons of policy produced any effect;) and by a grossly and manifestly unconstitutional tribunal, sitting in a country boasting of its freedom. Still the men, who should have been aroused, by the act, to vindicate their own rights, and the rights of their nation, have ever since chosen, neither to resent the insult, nor retaliate the injury; but rather to forego their self-respect, as well as their rights, and to flatter and fawn upon those who thus trample them and their fellow men, the learned and the ignorant, the genius and the clown, indiscriminately under foot—sparing only such men as Charles Pratt, (afterwards made Lord Camden,) who could be bribed by offices, titles, salaries, and pensions, to become their tools in the work.

If the literary men of England do not hereafter set themselves to the work of writing this unconstitutional and tyrannical court out of existence, they will deserve little sympathy in any wrongs they may suffer at its hands.

By way of offset to Lord Camden’s “public principles of sound policy and good sense,” on this subject, I here offer a single suggestion.

It has hitherto proved as bad in policy, as it is in morals, for mankind to think of getting the use of men’s ideas by robbery, instead of compensation. Men, who have ideas to impart to others, are very apt also to have ideas for their own use; and no amount of hypocritical preaching, or judicial decisions, whether they come from a Lord Chancellor, or from such a body of vampires as the English House of Lords, or from any other quarter [240] whatever, will be likely ever to persuade them, in any great numbers, to act upon the notion that it is their religious duty to die of starvation, in order that they may give their knowledge “freely to all mankind.” Their consciences are rarely so tender as to be in any danger on such a point as that. They know that they have as fair a right to acquire, by their labor, the necessaries, comforts, and even luxuries of life, as other men; and—reprehensible and lamentable as it may be and is—experience abundantly proves, that if their fellow men at large will seize the products of their intellectual toil, without making them compensation, very many of their number will sell their ideas to those who will pay—to kings, and lords, and tyrants—to aid in plundering, oppressing, and degrading their fellow men, instead of enlightening, enriching, and elevating them. And Lord Camden himself is by no means a very bad or remarkable example of this choice of alternatives, on the part of an intellectual man. He has generally been esteemed a good, rather than a bad man. Was a liberal man in his politics. His natural instincts, I think, would have much more strongly induced him to labor for mankind, than against them, if the labor could have been equally profitable to himself. And similar examples are every where thick around us. In fact, they constitute the rule, rather than the exception, in the case of intellectual men as a class.

It is poor economy, therefore, on the part of the common people, to attempt, by stealing their knowledge, instead of buying it, to defraud intellect of its wages. If they refuse to pay intellect for defending, enlightening, enriching, and elevating them, they will no doubt continue to find, as they ever hitherto have found, that intellect, by serving their oppressors, will compel them to pay for their own degradation and destruction.

Endnotes

*

Some persons object to this principle, for the reason that, as they say, a single individual might, in this way, take possession of a whole continent, if he happened to be the first discoverer; and might hold it against all the rest of the human race. But this objection arises wholly from an erroneous view of what it is, to take possession of any thing. To simply stand upon a continent, and declare one’s self the possessor of it, is not to take possession of it. One would, in that way, take possession only of what his body actually covered. To take possession of more than this, he must bestow some valuable labor upon it, such, for example, as cutting down the trees, breaking up the soil, building a hut or a house upon it, or a fence around it. In these cases, he holds the land in order to hold the labor which he has put into it, or upon it. And the land is his, so long as the labor he has expended upon it remains in a condition to be valuable for the uses for which it was expended; because it is not to be supposed that a man has abandoned the fruits of his labor so long as they remain in a state to be practically useful to him.

*

“To discover,” and “to take possession of,” an idea, are one and the same act; while to discover, and to take possession of, a material thing, are separate acts. But this difference in the two cases cannot affect the principle we are discussing.

*

Justice Yates, in the case of Millar vs. Taylor, 4 Burrows 2303.

*

There is a translation of Renouard’s Argument in the American Jurist, No. 43, (Oct. 1839,) p. 39.

*

There are doubtless exceptions to this rule, for two men have been known to invent the same thing, without any aid from each other. But such cases are very rare.

*

Millar vs. Taylor, 4 Burrows 2364—5.

*

Donaldson vs. Becket, 17 Parliamentary Hist. 991.

*

When it is said, in chapter first, page 19, that “an author sells his ideas in his volumes,” that “an editor sells his in his sheets,” &c., it is not meant that they necessarily sold an entire and unqualified right of property in their ideas; but only a partial or qualified right, viz.: a right to the mental possession and mental enjoyment of them. Whether the purchaser acquires any further right of property than this, in the ideas described in the volumes and papers, will depend on the principles laid down in this chapter.

*

It is perhaps worthy of notice, in this connexion, that a man can acquire, from a written description, the same mental possession of houses and lands, that he can of ideas. That is, he can acquire the same knowledge of houses and lands, that he can of ideas; and this knowledge of ideas is all the possession of them that he can, in any way, acquire. It would seem, therefore, that if this merely mental possession of things, which is acquired by reading about them, were of any importance, in law, it ought to have the same importance and effect, in the case of houses and lands, as in the case of ideas.

*

I shall assume in this chapter, for purposes of argument, that not more than one per centum of the wealth produced by labor-performing inventions, goes into the pockets of the inventors; or would go into their pockets, under a system of perpetual property, on their part, in their inventions. How near the truth this estimate may be, others can judge as well as myself. It is obviously sufficiently near the truth for the purposes of fair illustration.

*

I say the inventors, as a class, virtually offer to feed the people of England at one per centum upon existing prices, because I assume that each individual inventor asks, for his invention, not more than one per centum of the agricultural wealth it produces.

*

I say the inventors offer to supply the people with manufactured commodities, at the rate of one per centum on existing prices, because I assume, as before, that inventors would sell the use of their inventions, for one per centum of the wealth, which those inventions would create.

*

A day or two before handing this chapter to the printer, my eye fell upon the following article, in the New York Tribune, of Sept. 15, 1854, which fairly illustrates the wretched economy of the imperfect protection afforded to inventors. It would appear, from this article, that if the rights of inventors had been justly protected in 1824, the world would have had the benefit of an improved reaping machine, some twenty years before it did have it. If any man can tell how many thousands of millions of dollars worth of human labor would have been saved, taking the civilized world together, during those twenty years, by the use of such a machine, he will perhaps be able to form some tolerable estimate of the net profit, which the world has realized, from its ignorance, meanness, and dishonesty, in practically denying that Mr. May had any right of property in his invention. And when the calculator shall have ascertained how much clear gain the world has thus made, by keeping back, for twenty years, the use of the reaping machine, he will perhaps be able to make some conjectural computation, (if he can find figures in which to write it,) of the aggregate loss it has suffered from keeping back, in like manner, the use of, and perhaps forever suppressing, thousands, and tens of thousands, of other important inventions, which it might have had the use of during the same period, and for ages before, if its legislation had but adopted the principles of common honesty, instead of open knavery, towards inventors.

The editor of the Tribune has acquired a high reputation as a political economist, by his unwearied advocacy of restrictions on trade, as the grand instrumentality for stimulating production. Is there no sarcasm on the political economy of the age, in the fact, that such a man should draw no more important Inferences, from the incident he relates, than the merely personal one, that the Messrs. May, father and son, lost the chance of “an ample independence for them both;” and the additional one, that somebody ought to “write that most interesting and instructive of all unwritten books—the Romance and Reality of Invention,” “not only as a deserved memento of world-acknowledged merit, due as well to living as to dead, but as a stimulant to the hearts and labors of a class existing every where around us?” Strange indeed is it, that it should never occur to him that there could be any more fitting “memento of acknowledged merit,” nor any more proper or necessary “stimulant to the hearts and labors” of inventors, than a book, descriptive of their struggles and adversities. Yet, ludicrous, if not heartless and insulting, as are these inferences of the editor of the Tribune, it should be mentioned, that he is probably in advance of most public men, both in his sympathies and principles, in behalf of inventors. I submit, however, that it is not in entirely good taste for one, whose own ideas are no farther advanced on this subject, to talk quite so contemptuously of those “boorish minds,” who “refused to be convinced” by “demonstration,” and who, in its infancy, could even “nickname” a valuable invention as “Harvey’s Folly,” and “Harvey’s Great Amazement.”

“THE VICISSITUDES OF INVENTORS.

“The private history of many inventions, if fully written out, would form a volume of abundant dimensions. Its chapters would unfold a world of practical romance; the struggles of ingenious poverty, which no discouragement could paralyze; the undying perseverance of minds conscious of colossal strength; the hopes, the fears, the bitter disappointments of commanding genius; the triumphs that have sometimes crowned the labors of these patient toilers in their solitary work-shops; the brilliant recompense of mere luck or accident; the villany of confidential friends—in fact a measureless catalogue of contingencies, which seem peculiar to inventors as a class. Authors—of books only—have had their calamities collected and amplified with a touching pathos. The Pursuit of Knowledge under Difficulties, gathered up into a volume too small to embody more than a meagre fraction of its heart-depressing experiences, has fixed the attention and touched the sympathies of kindred minds, wherever its collected records have become known. Some careful hand should also gather up the Vicissitudes of Inventors, not only as a deserved memento of world-acknowledged merit, due as well to living as to dead, but as a stimulant to the hearts and labors of a class existing everywhere around us, and enlarging as the circle of the arts and sciences extends.

“Let us take a solitary instance, unknown to fame, but illustrative of the common difficulties which obstruct the path of poor and ingenious men. The whole world has become familiar with the great American Reaper, which the London Exhibition first introduced to European observation. Yet as long ago as 1824, a young boy in Washington County, New York—Harvey May, by name—conceived the idea of a machine for similar purposes. He tried his first experiment with shears, the blades of which were so curved as to present nearly the same angles of edge, from heel to point, while cutting. The following year he tried again, using a reel and sickle edge, but returned to the vibrating edges. Continuing these trials, amid a world of difficulties and opposition, the sneers and ridicule of a community of boorish minds, he at last succeeded completely. His crudely-built machine—for no one awarded him the cheap aid of sympathetic encouragement, much less practical mechanical help—extended into the grain to the right, and was mounted on the hind wheels of his father’s lumber-waggon. With large wheels and simple geering, a single horse drew the inventor and his brother on the machine, and it actually cut heavy rye at the rate of an acre an hour. Those who looked on and witnessed its marvellous performance, refused to be convinced. The science of demonstration was unknown to their vocabulary. His neighbors did condescend to grant that the whole affair was quite original, but complimented him by calling it ‘Harvey’s Folly.’ Further trials, however, only rendered the machine even more perfect, whereupon it received the further nickname of ‘Harvey’s Great Amazement.’ Mr. May, in writing recently of this promising germ of what has since unfolded into a great industrial improvement, says, with touching simplicity, that he intended taking out a patent, but ‘My father refused to help me in this; for he said the patent laws were only calculated to draw men into ruinous lawsuits. I tried to get help from others, but all refused to help me when they learned my father’s views on the patent laws.’ Thus, with the evidence of success before him, this youthful genius was compelled to see his great invention perish. Other inventors in the same prolific field, have gathered in abundant harvests of gold from the profits of their reapers. Had the over-cautious father stimulated, with judicious sympathy and advice, the genius of his promising son, the product would in all probability have been an ample independence for them both.

“We might illustrate the same course of thought by a thousand other instances equally touching, but the suggestion is sufficient. Who will write that most interesting and instructive of all unwritten books—the Romance and Reality of Invention?”

*

I have no special knowledge on the point mentioned in the text, and only give my opinion as a matter of conjecture.

*

Jones on Bailments 133.

†

1 Kent 522. 7th edition.

*

Among the exceptions referred to, are these—that a women, on marriage, shall lose the control of her property, her natural right of making contracts, &c.; that a child, born out of wedlock, shall not inherit the father’s estate; and some others not necessary to be named. These exceptions to the principles of natural law, are of such antiquity, that the time and mode of their establishment are now unknown. And no laws whatever, contrary to the law of nature, are parts of the Common Law, unless they have been in force from time immemorial. It will be shown hereafter that no immemorial law has existed in England, adverse to the rights of authors and inventors to a perpetual property in their ideas.

*

For the historical proofs that the Common Law and the English Constitution were such as have here been described, I refer the reader to my “Essay on the Trial by Jury.”

*

Wm. Blackstone 301 and 321.

*

For these and various other authorities, showing the opinions of English judges, that patents for new inventions were good at Common Law, see Hindmarch on Patents, ch. 1 and 2. Also Coke’s chapter on Monopolies, 3 Inst. 181.

*

One reason why no more progress has been made in other branches of natural law, has been, that natural law has been superseded by arbitrary legislation; and all the legal mind of England and America, has been engrossed, for centuries, in interpreting and enforcing this legislation, instead of pursuing the study of natural law as a science. Another reason is, that the progress of natural law, in any direction, is dangerous to arbitrary institutions; and therefore courts, sitting under the authority of arbitrary governments, systematically ignore all discoveries in natural law, until they have first been sanctioned by the legislative power. And this last event generally happens only when the government finds that a revolution, dangerous to its existence, is impending.

†

An English patent is granted in these supercilious and insolent terms. After reciting that the applicant has “humbly petitioned” the crown for a patent, it adds,

“And we, [the queen,] being willing to give encouragement to all arts and inventions, which may be for the public good, are graciously pleased to condescend to the petitioner’s request. Know ye, therefore, that we, of our especial grace, certain knowledge, and mere motion, have given and granted, and by these presents, for us, our heirs, and successors, do give and grant unto the said A. B., his executors, &c., our especial license, full power, sole privilege, and authority, that he the said A. B., his executors, &c., shall and lawfully may make, use, exercise, and vend his said invention,” &c.

Is it not nearly an infinite insult, that such men as Arkwright and Watt, who were of ten thousand times more value to mankind than all the kings and queens that time has ever produced, or ever will produce, should be necessitated to hold their natural rights to the products of their own labor, on such terms as these? If a greater insult can be conceived, it would seem to be, that authors, and such authors as John Milton, should be compelled to ask “license” of a king to print their own thoughts. This insult to authors is no longer practised; because the authors, with truth on their side, proved themselves stronger than the king. When inventors assert their rights in like manner, they will no longer be necessitated to accept them as grants, or favors, “graciously” bestowed on them by the government.

The Common Law never required that a freeborn Englishman should “humbly petition” the crown for the enjoyment of his natural rights of property; nor that he should ever accept those rights as a grant originating in the “gracious pleasure and condescension” of the king. And if the constitutional system of government had been preserved, such degradation, on the part of inventors, would not, at this day certainly, have been witnessed.

*

During the first twenty years of the present century there were but one hundred and three patents a year, on an average, granted for both foreign and domestic inventions. (See Pritchard’s list of Patents.) From this fact one can judge somewhat how few inventions could have been made in former times, when the population was comparatively small, and the arts had made so little comparative progress.

*

Coke’s 3 Inst. 184.

*

Hindmarch 46. 3 Car. and Payne 611.

†

Hindmarch 46. 1 Starkie’s R. 205.

*

4 Burrows 2303.

*

Chapter iv, pages 119-120-133.

*

Parliamentary History, Vol. 17, p. 981.

*

Page 68.

*

Chapter iv, page 113.

*

Chapter iv.

*

Parliamentary History, Vol. 17, p. 953.

*

Chapter iv, page 115.

*

Advancement of Learning, B. 8, Aphorisms 10 and 11.

*

I say, in the text, that “the lords, both in their legislative and judicial capacities, are, constitutionally, nothing but usurpers.”

By the English constitution, an order of nobility could exist only on the foundation of the feudal system. When that system was abolished, all distinctions of political rank, inferior to that of the king, were, constitutionally speaking, abolished with it. And all the legislative and judicial power, since exercised by the lords, as a body, has been a sheer usurpation. This usurpation was originally accomplished by them, by means of their wealth, and by conspiring with the king, the knights, and the “forty shilling freeholders,” so called (originally represented in the House of Commons); a class, whom Mackintosh designates as “a few freeholders then accounted wealthy.” (Mackintosh’s Hist. of Eng., Ch. 3.) The same kind of influences, which originally enabled them to accomplish this usurpation, have enabled them hitherto to sustain it. It never had the least authority in the constitution of the kingdom.

*

Campbell’s Lives of the Lord Chancellors, Vol. 5, p. 215. Entick vs. Carrington, 19 State Trials 1066.

*

The following is a copy of his note.

“The favors I am to request from your Grace’s despatch, are as follows.

1. My patent for the salary.

2. Patent for £1500 a year upon the Irish establishment, in case my office should determine before the tellership drops.

3. Patent for tellership for my son.

4. The equipage money; Lord Worthington tells me it is £2000. This I believe is ordered by a warrant from the Treasury to the Exchequer.”

Campbell’s Lives of the Lord Chancellors, Vol. v, p. 221.

T.13 A Plan for the Abolition of Slavery, and To the Non-Slaveholders of the South (1858).↩

Title

[13.] A Plan for the Abolition of Slavery, and To the Non-Slaveholders of the South (n.p., 1858).

- also online </titles/2181>.

Text

Abolition Plan

TO THE NON-SLAVEHOLDERS OF THE SOUTH.

We present to you herewith “A Plan for the Abolition of Slavery,” and solicit your aid to carry it into execution.

Your numbers, combined with those of the Slaves, will give you all power. You have but to use it, and the work is done.

The following self-evident principles of justice and humanity will serve as guides to the measures proper to be adopted. These principles are—

1. That the Slaves have a natural right to their liberty.

2. That they have a natural right to compensation (so far as the property of the Slaveholders and their abettors can compensate them) for the wrongs they have suffered.

3. That so long as the governments, under which they live, refuse to give them liberty or compensation, they have the right to take it by stratagem or force.

4. That it is the duty of all, who can, to assist them in such an enterprise.

In rendering this assistance, you will naturally adopt these measures.

1. To ignore and spurn the authority of all the corrupt and tyrannical political institutions, which the Slaveholders have established for the security of their crimes.

2. Soon as may be, to take the political power of your States into your own hands, and establish governments that shall punish slaveholding as a crime, and also give to the Slaves civil actions for damages for the wrongs that have already been committed against them.

3. Until such new governments shall be instituted, to recognize the Slaves as free men, and as being the rightful owners of the property, which is now held by their masters, but which would pass to them, if justice were done; to justify and assist them in every effort to acquire their liberty, and obtain possession of such property, by stratagem or force; to hire them as laborers, pay them their wages, and defend them meanwhile against their tyrants; to sell them fire-arms, and teach them the use of them; to trade with them, buying the property they may have taken from their oppressors, and paying them for it; to encourage and assist them to take possession of the lands they cultivate, and the crops they produce, and appropriate them to their own use; and in every way possible to recognize them as being now the rightful owners of the property, which justice, if administered, would give them, in compensation for the injuries they have received.

4. To form Vigilance Committees, or Leagues of Freedom, in every neighborhood or township, whose duty it shall be to stand in the stead of the government, and do that justice for the slaves, which government refuses to do; and especially to arrest, try, and chastise (with their own whips) all Slaveholders who shall beat their slaves, or restrain them of their liberty; and compel them to give deeds of emancipation, and conveyances of their property, to their slaves.

5. To treat, and teach the negroes to treat, all active abettors of the Slaveholders, as you and they treat the Slaveholders themselves, both in person and property.

Perhaps some may say that this taking of property, by the Slaves, would be stealing, and should not be encouraged. The answer is, that it would not be stealing; it would be simply taking justice into their own hands, and redressing their own wrongs. The state of Slavery is a state of war. In this case it is a just war, on the part of the negroes—a war for liberty, and the recompense of injuries; and necessity justifies them in carrying it on by the only means their oppressors have left to them. In war, the plunder of enemies is as legitimate as the killing of them; and stratagem is as legitimate as open force. The right of the Slaves, therefore, in this war, to take property, is as clear as their right to take life; and their right to do it secretly, is as clear as their right to do it openly. And as this will probably be their most effective mode of operation for the present, they ought to be taught, encouraged, and assisted to do it to the utmost, so long as they are unable to meet their enemies in the open field. And to call this taking of property stealing, is as false and unjust as it would be to call the taking of life, in just war, murder.

It is only those who have a false and superstitious reverence for the authority of governments, and have contracted the habit of thinking that the most tyrannical and iniquitous laws have the power to make that right which is naturally wrong, or that wrong which is naturally right, who will have any doubt as to the right of the Slaves (and those who would assist them) to make war, to all possible extent, upon the property of the Slaveholders and their abettors.

We are unwilling to take the responsibility of advising any general insurrection, or any taking of life, until we of the North go down to take part in it, in such numbers as to insure a certain and easy victory. We therefore advise that, for the present, operations be confined to the seizure of property, and the chastisement of individual Slaveholders, and their accomplices; and that these things be done only so far as they can be done, without too great danger to the actors.

We specially advise the flogging of individual Slaveholders. This is a case where the medical principle, that like cures like, will certainly succeed. Give the Slaveholders, then, a taste of their own whips. Spare their lives, but not their backs. The arrogance they have acquired by the use of the lash upon others, will be soon taken out of them, when the same scourge shall be applied to themselves. A band of ten or twenty determined negroes, well armed, having their rendezvous in the forests, coming out upon the plantations by day or night, seizing individual Slaveholders, stripping them, and flogging them soundly, in the presence of their own Slaves, would soon abolish Slavery over a large district.

These bands could also do a good work by kidnapping individual Slaveholders, taking them into the forest, and holding them as hostages for the good behavior of the whites remaining on the plantations, compelling them also to execute deeds of emancipation, and conveyances of their property, to their slaves. These contracts could probably never afterward be successfully disallowed on the ground of duress (especially after new governments, favorable to liberty, should be established) inasmuch as such contracts would be nothing more than justice; and men may rightfully be coerced to do justice. Such contracts would be intrinsically as valid as the treaties by which conquered nations make satisfaction for the injustice which caused the war.

The more bold and resolute Slaves should be encouraged to form themselves into bands, build forts in the forests, and there collect arms, stores, horses, every thing that will enable them to sustain themselves, and carry on their warfare upon the Slaveholders.

Another important measure, on the part of the Slaves, will be to disarm their masters, so far as that is practicable, by seizing and concealing their weapons whenever opportunity offers. They should also kill all slave-hunting dogs, and the owners too, if that should prove necessary.

Whenever the Slaves on a plantation are not powerful or courageous enough to resist, they should be encouraged to desert, in a body, temporarily, especially at harvest time, so as to cause the crops to perish for want of hands to gather them.

Many other ways will suggest themselves to you, and to the Slaves, by which the Slaveholders can be annoyed and injured, without causing any general outbreak, or shedding of blood.

Our plan then is—

1. To make war (openly or secretly as circumstances may dictate) upon the property of the Slaveholders and their abettors—not for its destruction, if that can easily be avoided, but to convert it to the use of the Slaves. If it cannot be thus converted, then we advise its destruction. Teach the Slaves to burn their masters’ buildings, to kill their cattle and horses, to conceal or destroy farming utensils, to abandon labor in seed time and harvest, and let crops perish. Make Slavery unprofitable, in this way, if it can be done in no other.

2. To make Slaveholders objects of derision and contempt, by flogging them, whenever they shall be guilty of flogging their slaves.

3. To risk no general insurrection, until we of the North go to your assistance, or you are sure of success without our aid.

4. To cultivate the friendship and confidence of the Slaves; to consult with them as to their rights and interests, and the means of promoting them; to show your interest in their welfare, and your readiness to assist them. Let them know that they have your sympathy, and it will give them courage, self-respect, and ambition, and make men of them; infinitely better men to live by, as neighbors and friends, than the indolent, arrogant, selfish, heartless, domineering robbers and tyrants, who now keep both yourselves and the Slaves in subjection, and look with contempt upon all who live by honest labor.

5. To change your political institutions soon as possible. And in the meantime give never a vote to a Slaveholder; pay no taxes to their government, if you can either resist or evade them; as witnesses and jurors, give no testimony, and no verdicts, in support of any Slaveholding claims; perform no military, patrol, or police service; mob Slaveholding courts, gaols, and sheriffs; do nothing, in short, for sustaining Slavery, but every thing you safely and rightfully can, publicly and privately, for its overthrow.

While rascals of the South! Willing tools of the Slaveholders! You, who drive Slaves to their labor, hunt them with dogs, and flog them for pay, without asking any questions! We have a word specially for you. You are one of the main pillars of the Slave system. You stand ready to do all that vile and inhuman work, which must be done by somebody, but which the more decent Slaveholders themselves will not do. Yet we have heard one good report even of you. It is, that you have no such prejudices against color, nor against liberty, as that you would not as willingly earn money by helping a Slave to Canada, as by catching a fugitive and returning him to his master. If you are thus indifferent as to whom you serve, we advise you henceforth to serve the Slaves, instead of their masters. Turn about, and help the robbed to rob their robbers. The former can afford to pay you better than the latter. Help them to get possession of the property which is rightfully their due, and they can afford to give you liberal commissions. Help them flog individual Slaveholders, and they can afford to pay you ten times as much as you ever received for flogging Slaves. Help them to kidnap the Slaveholders, and they can afford to pay you more than you now get for catching fugitive Slaves. Be true to the Slaves, and we hope they will pay you well for your services. Be false to them, and we hope they will kill you.

Lawyers of the South! You can, if you will, exert a potent influence for good, in this matter. If, in the true spirit of law as a science, you shall see a man in the most crushed of human beings; and, recognizing his right to obtain justice by such means as may be in his power, you shall take the side of the oppressed, in this controversy, and teach them to trample on their tyrants, and vindicate their manhood—if you do this, and then aid in establishing new institutions, based upon liberty, equality, and right, you will have the satisfaction of doing your part towards bringing into life a great, free, and happy people, where now all is crime, tyranny, degradation, and death. If, on the contrary, you shall take the side of the Slaveholders, and continue to be—as, professionally, under Slave institutions, you must forever be—the degraded, pettifogging pimps, hirelings, and tools of a few soulless robbers of their species—denying continually the authority of justice, and the rights of humanity—if you shall do this, we need not attempt to tell you what your true rank will be in the scale of lawyers, statesmen, patriots, or men.

Merchants of the South! We hope you will deliberately consider this matter, and make up your minds whether the Slaves have the right to take the property of their masters. In compensation for the injuries they have suffered. If you decide that they have that right, we hope you will act accordingly, and will not hesitate to buy of them cotton, or any other property which they may have taken from their masters; and give them, in exchange, weapons, or any other articles they may need. If you will but do this, you will soon put an end to Slavery.

Non Slaveholders generally of the South! If it is right for the Slaves to take the property of their masters, to compensate their wrongs, it is right for you to help them. Your numbers, compared with those of the Slaveholders, are as five or six to one. It will be perfectly easy for you, by combining with the Slaves, to put them in possession of the plantations on which they labor, and of all the property upon them. They could afford to pay you well for doing them such a service. They could afford to let you share with them in the division of the property taken. We hope you will adopt this measure. It will not only be right in itself, it will be the noblest act of your lives, provided you do not take too large a share to yourselves; and provided also that you afterwards faithfully protect the Slaves in their liberty, and the property assigned to them.

Finally, we say to all, correspond with us of the North. Let each person who receives or sees one of these sheets, send his letters to the one who sent it—with liberty to publish them in the northern papers. This correspondence, we are confident, will be a more interesting literature than the South has ever furnished; and will enlist the feelings of northern people to such a degree, that we shall be induced to go, in large numbers, to your assistance, whenever you shall need us.

[2]

A PLAN FOR THE ABOLITION OF SLAVERY.

When a human being is set upon by a robber, ravisher, murderer, or tyrant of any kind, it is the duty of the bystanders to go to his or her rescue, by force, if need be.

In general, nothing will excuse men in the non-performance of this duty, except the pressure of higher duties, (if such there be,) inability to afford relief, or too great danger to themselves or others.

This duty being naturally inherent in human relations and necessities, governments and laws are of no authority in opposition to it. If they interpose themselves, they must be trampled under foot without ceremony, as we would trample under foot laws that should forbid us to rescue men from wild beasts, or from burning buildings.

On this principle, it is the duty of the non-slaveholders of this country, in their private capacity as individuals—without asking the permission, or waiting the movements, of the government—to go to the rescue of the Slaves from the hands of their oppressors.

This duty is so self-evident and natural a one, that he who pretends to doubt it, should be regarded either as seeking to evade it, or as himself a servile and ignorant slave of corrupt institutions or customs.

Holding these opinions, we propose to act upon them. And we invite all other citizens of the United States to join us in the enterprise. To enable them to judge of its feasibility, we lay before them the following programme of measures, which, we think, ought to be adopted, and would be successful.

1. The formation of associations, throughout the country, of all persons who are willing to pledge themselves publicly to favor the enterprise, and render assistance and support, of any kind, to it.

2. Establishing or sustaining papers to advocate the enterprise.

3. Refusing to vote for any person for any civil or military office whatever, who is not publicly committed to the enterprise.

4. Raising money and military equipments.

5. Forming and disciplining such military companies as may volunteer for actual service.

6. Detaching the non-slaveholders of the South from all alliance with the Slaveholders, and inducing them to co-operate with us, by appeals to their safety, interest, honor, justice, and humanity.

7. Informing the Slaves (by emissaries to be sent among them, or through the non-slaveholders of the South) of the plan of emancipation, that they may be prepared to co-operate at the proper time.

8. To encourage emigration to the South, of persons favoring the movement.

9. When the preceding preliminaries shall have sufficiently prepared the way, then to land military forces (at numerous points at the same time) in the South, who shall raise the standard of freedom, and call to it the slaves, and such free persons as may be willing to join it.

10. If emancipation shall be accomplished only by actual hostilities, then, as all the laws of war, of nature, and of justice, will require that the emancipated Slaves shall be compensated for their previous wrongs, we avow it our purpose to make such compensation, so far as the property of the Slaveholders and their abettors can compensate them. And we avow our intention to make known this determination to the Slaves beforehand, with a view to give them courage and self-respect, to nerve them to look boldly into the eyes of their tyrants, and to give them true ideas of the relations of justice existing between themselves and their oppressors.

11. To remain in the South, after emancipation, until we shall have established, or have seen established, such governments as will secure the future freedom of the persons emancipated.

And we anticipate that the public avowal of these measures, and our open and zealous preparation for them, will have the effect, within some reasonable time—we trust within a few years at farthest—to detach the government and the country at large from the interests of the Slaveholders; to destroy the security and value of Slave property; to annihilate the commercial credit of the Slaveholders; and finally to accomplish the extinction of Slavery. We hope it may be without blood.

If it be objected that this scheme proposes war, we confess the fact. It does propose war—private war indeed—but, nevertheless, war, if that should prove necessary. And our answer to the objection is, that in revolutions of this nature, it is necessary that private individuals should take the first steps. The tea must be thrown overboard, the Bastile must be torn down, the first gun must be fired, by private persons, before a new government can be organized, or the old one be forced (for nothing but danger to itself will force it) to adopt the measures which the insurgents have in view.

If the American governments, State or national, would abolish Slavery, we would leave the work in their hands. But as they do not, and apparently will not, we propose to force them to do it, or to do it ourselves in defiance of them.

If any considerable number of the American people will join us, the work will be an easy and bloodless one; for Slavery can live only in quiet, and in the sympathy or subjection of all around it.

[The following note is to be addressed to some person at the South, and signed by the person sending it, giving his own residence.]

Sir:

Please accept, and exhibit to your neighbors, this copy of a document, which we are intending to distribute very extensively through the South, and which, we trust, will give birth to a movement, that shall result not only in the freedom of the blacks, but also in the political, pecuniary, educational, moral, and social advantage of the present non-slaveholding whites. Please let me hear, from you often, informing me of the progress of the work. Direct to me at

WE, the subscribers, residents of the Town of in the County of in the State of believing in the principles, and approving generally of the measures, set forth in the foregoing “Plan for the Abolition of Slavery,” and in the accompanying address “To the Non-Slaveholders of the South,” hereby unite ourselves in an Association to be called the League of Freedom in the Town of for the purpose of aiding to carry said plan into effect. And we hereby severally declare it to be our sincere intention to co-operate faithfully with each other, and with all other associations within the United States, having the same purpose in view, and adopting the same platform of principles and measures.

T.14 Address of the Free Constitutionalists to the People of the United States (1860).↩

Title

[14.] Address of the Free Constitutionalists to the People of the United States (Boston: Thayer & Eldridge, 1860).

- also online </titles/2230>.

Text

A Few friends of freedom, who believe the Constitution of the United States to be a sufficient warrant for giving liberty to all the people of the United States, make the following appeal against any support being given to the Republican Party at the ensuing election.

Boston,

September, 1860

.

NOTE TO SECOND EDITION.

Although this address was published previous to the late presidential election, and was designed to have an effect upon it, it nevertheless contains constitutional opinions, which are deemed of permanent importance, and worthy of preservation. The opinions it expresses in regard to the Republican party will also be pertinent so long as that party shall occupy the grounds it has hitherto done.

Boston,

November, 1860

.

[3]

ADDRESS.

I.

The real question, that is now convulsing the nation, is not—as the Republican party would have us believe—whether slaves shall be carried from the States into the Territories? but whether anywhere, within the limits of the Union, one man shall be the property of another?

Whether a man, who is confessedly to be held as property, shall be so held in one place, rather than in another? in a State, rather than in a Territory? is a frivolous and impertinent question, in which the man himself can have no interest, and which is unworthy of a moment’s consideration at this time, if not at all times. If he is to be a slave at all, the locality in which he is to be held, is a matter of no importance to him, and of little or no importance to the nation at large, or any of its people.

If there are to be slaves in the country, a humane man, instead of feeling himself degraded by their presence, would desire to have them in his neighborhood, that he might give them his sympathy, and if possible ameliorate their condition. And the man, who, like the Republican party, consents to the existence of slavery, so long as the slaves are but kept out of his sight, is at heart a tyrant and a brute. And if, at the same time, like the more conspicuous members of that party, he makes loud professions of devotion to liberty and humanity, he thereby just as loudly proclaims himself a hypocrite. And those Republican politicians, who, instead of insisting upon the liberation of the slaves, maintain, under the name of State Rights, the inviolability [4] of the slaveholder’s right of property in his slaves, in the States, and yet claim to be friends of liberty, because they cry, “Keep the slaves where they are;” “No removal of them into the Territories;” “Bring them not into our neighborhood,”—are either smitten with stupidity, as with a disease, or, what is more probable, are nothing else than selfish, cowardly, hypocritical, and unprincipled men, who, for the sake of gaining or retaining power, are simply making a useless noise about nothing, with the purpose of diverting men’s minds from the true issue, and of thus postponing the inevitable contest, which every honest and brave man ought to be ready and eager to meet at once.

II.

We repeat, that the true issue before the country—the one which sooner or later must be met—is nothing less than this: Shall any portion of the people of the United States be held as property at all?

So far as the practical solution of this question depends upon existing political institutions, it depends mainly upon the constitution of the United States.

If the constitution of the United States—“the supreme law of the land”—declares A to be a citizen of the United States (we use the term citizen in its technical sense) then, constitutionally speaking, he is a citizen of the United States everywhere throughout the United States,—“any thing in the constitution or laws of any State to the contrary notwithstanding;” and no State law or constitution can depose him from that status, or deprive him of the enjoyment of the least of those rights, which the national constitution guarantees to the citizens of the United States.

If, on the other hand, that same “supreme law” declares him to be property, then, constitutionally speaking, he is property everywhere under that law; and his owner may, by virtue of that law, carry him, as property, into any and every State in the Union, and there hold him as a slave forever,—“any thing in the constitutions or laws of such States to the contrary notwithstanding.”

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There can, therefore, be no such distinction made between the States, as that of free and slave States. All are alike free, or all are alike slave, States. They must all necessarily be either the one or the other; since the constitution of the United States, being “the supreme law” over all alike, must necessarily determine, in all alike, the status of each individual therein, relative to that “supreme law.” In other words, the constitution of the United States, and not any constitutions or laws of the States, must determine, in the case of each and every individual, whether he be a citizen of the United States, and entitled to the benefits and protection of the national government, or not. If it determines that any particular person is a citizen of the United States, entitled to the benefits and protection of the national government, then certainly he cannot be deprived of such citizenship, or of the protection and benefits which that citizenship implies, by any subordinate or State government; for, in that case, the constitution of the United States would not be “the supreme law of the land.” If, on the contrary, the constitution of the United States determines that any particular individual (native or naturalized) is not a citizen of the United States, nor entitled to the benefits and protection of the national government, it can do so only because it has itself declared him to be property; since that is the only cause that can prevent his being a citizen of the United States, and entitled, as such citizen, to the benefits and protection of the government of the United States. The declaration of no subordinate law, that he is property, can break the force of that “supreme law,” which declares everybody (native and naturalized) a citizen, whom it does not itself declare to be a slave.

The government of the United States cannot act directly upon the State governments, as governments, requiring them to do this, and forbidding them to do that. It must, therefore, act directly upon individuals; else it cannot act at all. It is practically a government only so far as it does operate upon individuals. It must necessarily know, by virtue of the United States constitution, the individuals upon whom it is to operate; otherwise it would be in the situation of a government not knowing its own citizens, and consequently not knowing to whom its own duties were due.

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The rights, which the general government secures to the people, are as much personal rights, and come home to each separate individual as directly and fully as do the rights secured to them by the State governments. And the rights secured to the people by the national government, as much imply personal liberty, on the part of the people, as do the rights secured to them by the State governments; for, without personal liberty, the former rights can no more be enjoyed than the latter. Hence the indispensable necessity that the general government should know, for itself, independently of the State governments, who are, and who are not (if any are not) citizens of the United States; for otherwise, we repeat, it cannot know to whom its own duties are due.

To say that it rests with the State governments to decide upon whom the United States government shall act, or upon whom it shall confer its protection or benefits, is equivalent to saying that “the supreme law” is dependent upon the arbitrary will of subordinate laws, for permission to operate at all as a law. It is consequently equivalent to saying that the subordinate law may nullify the supreme law, and exclude it from a State altogether, by simply declaring that no persons whatever, within the State, shall be citizens of the United States; and consequently that there shall be no persons, within the State, upon whom the supreme law can operate, or upon whom it shall confer its benefits.

We repeat the proposition, that, if the State constitutions or laws can determine who may, and who may not, be citizens of the United States, and enjoy the benefits of the United States government, each State may nullify the constitution, government, and laws of the United States, within such State, by declaring that there shall be, within the State, no citizens of the United States, to enjoy those benefits, or upon whom the laws of the United States shall operate.

It is, therefore, indispensable to the existence and operation of the government of the United States, that the constitution of the United States shall itself determine upon whom the United States government shall operate, and who are its citizens, “any [7] thing in the constitutions or laws of the States to the contrary notwithstanding;” and that the State laws and constitutions shall be allowed to have nothing to do with the matter.

To say that a State can make a man a slave, is only another mode of saying that a State can deprive the United States of a citizen, and abolish the government of the United States, so far as that citizen is concerned. And to say that a State can deprive the United States of one citizen, is equivalent to saying that a State can deprive the government of the United States of all its citizens, within the State. And to say that a State can deprive the government of the United States of all its citizens, within the State, is equivalent to saying that the State can entirely abolish the United States government, within such State. This is the necessary conclusion of the doctrine, that the States can make a slave of any individual, who would otherwise be a citizen of the United States.

If all the people of the States were made slaves, plainly the United States government would have no citizens, upon whom it could operate; and it would, therefore, be virtually abolished. And, in just so far as the people of the United States are made slaves, in just so far is the United States government abolished.

This whole theory, therefore, that the States have a right to make slaves of the people of the United States, is nothing less than a theory that the States have the right to abolish the government of the United States, by withdrawing individuals from the operation of its laws.

To say, as is constantly done, that the United States constitution “recognizes,” as slaves, those whom the States may declare to be slaves, is equivalent to charging the constitution with the absurdity of recognizing the right of the States to make slaves of the citizens of the United States. And to say that the constitution of the United States recognizes the right of the States to make slaves of the citizens of the United States, is equivalent to charging it with the absurdity of actually recognizing the right of each separate State to abolish the government of the United States, within such State.

It therefore results that the constitution of the United States, [8] “the supreme law of the land,” must necessarily fix the status of every individual relatively to that law; and that, in fixing the status of each and every individual, relatively to that law—that is, in determining whether an individual shall be a citizen of the United States or not,—it necessarily fixes his status as a freeman, or a slave.

And it necessarily does this independently of, and in defiance of, any subordinate or State law; for otherwise it could not be “supreme.”

To say that the national constitution is “the supreme law of the land,” and yet that it depends upon each of thirty-three State governments to say upon whom that supreme law shall operate, or whom it shall protect, is as absurd as it would be to say that one man is an absolute monarch over thirty-three States, and yet that he is wholly dependent upon the consent of thirty-three subordinate princes, for permission to rule over his own subjects.

If the constitution, laws, and government of the United States are to be limited, in their operation within each State, to such individuals as the States respectively may designate, then each State may, so far as its own territory is concerned, determine who may, and who may not, send and receive letters by the United States mail; who may, and who may not, go into a United States custom-house for purposes of commerce; who may, and who may not, go into a United States court-house; and so on. If this were the true relation between our general and State governments, then the United States constitution, instead of declaring that “this constitution, and the laws of the United States, which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land, and the judges in every State shall be bound thereby, any thing in the constitution or laws of any State to the contrary notwithstanding,” ought to have declared that this constitution, and the laws and treaties made by the United States in pursuance thereof, shall have effect, within each State, only so far as such State shall consent, or only upon such individuals as such State shall designate.

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III.

Another proof that the general government must determine for itself, independently of the State governments, who are, and who are not, citizens of the United States, is found in that provision of the constitution, which declares that “the United States shall guarantee to every State of this Union a republican form of government.”

Although the constitution presumes that the State governments will be representative governments, yet this provision for “a republican form of government” certainly requires that the United States shall guarantee to the States something more than a mere representative government; for a government may be a representative government, and yet the constituent body—or the body enjoying the right of suffrage—be so small, and the principles of the government so exclusive and arbitrary, as to make the government a perfect tyranny, as to the great body of the people. A guaranty, therefore, of a representative government simply, would have been of no practical value to the people.

It is plain, too, from another part of the constitution, that the constitution does not mean to imply that a representative form of government is necessarily a republican form of government; because if it did, it would have made some specific provision as to the extent of the suffrage to be enjoyed by the constituent body. Whereas it leaves that matter to be regulated at the discretion of the States respectively.*

It is certain, therefore, that the “republican form of government,” which the United States are bound to guarantee to the States, is something essentially different from, and more than, a representative government, representing such portions only of the whole people as may chance to get the power of a State into their hands, wielding it arbitrarily for their own purposes.

What, then, is implied in this “republican form of government?” [10] This certainly, if no more, is implied—for this must necessarily be implied in the very terms, “a republican form of government,”—viz., that at least all the members of the republic shall enjoy the protection of the laws.

Whatever other disagreements there may be in men’s minds, as to the essential requisites of “a republican form of government,” certainly no man in his senses can deny so self-evident a proposition as this,—that such a government necessarily implies that all the acknowledged members of the republic must be under the protection of the laws.

This being admitted, it follows that the United States must guarantee to each State a government, that shall give the protection of the laws to all the acknowledged members or citizens of the State.

But who are the acknowledged members or citizens of a State? We answer, that, whomsoever else they may, or may not, include, they must certainly include all the citizens of the United States, within the State. This must necessarily be so; because it would be absurd to suppose that those people, in the various States, who united to form the national government, and thereby made themselves citizens of the United States, would also unite to guarantee a republican form of government for each of the separate States, unless they themselves were personally to have the benefit of this guaranty. It certainly cannot be supposed that they would be so foolish and suicidal as to unite to guarantee to others a government within the States, the benefits of which could be denied to themselves, or the power of which could be turned against themselves for purposes of oppression.

This guaranty, then, on the part of the United States, of a “republican form of government” for each State, is a guaranty of a government, under which at least all the citizens of the United States, within the State, shall have the protection of the laws.

From this proposition it follows inevitably that the United States government must determine, independently of the State government, who are the citizens of the United States, within a State; for, otherwise, it could not know when it had fulfilled this guaranty to them of the protection of a republican form of government. [11] The guaranty itself might be wholly or partially defeated, at the pleasure of the State government, if it were left to the State government itself to determine who were, and who were not, among those citizens of the United States, within the State, for whose benefit this guaranty had been made. And the State government might very likely have great motive to defeat the guaranty, either in whole or in part.

It must be borne in mind that this guaranty of a republican form of government to the citizens of the United States, within a State, is a guaranty against the oppressions of any anti-republican form of government, that may succeed in obtaining power in a State. Yet clearly the United States could not protect its own citizens against such anti-republican government within the States, unless it could determine, independently of the State governments, who its own citizens, within the States, were.

We insist that this argument is entirely conclusive to prove that the United States Government must determine, for itself, who are its own citizens within the respective States; and that the constitutions and laws of the States themselves can have nothing whatever to do with the matter.

IV.

Still further proof that the constitution of the United States, and not the constitution or laws of the States, controls the citizenship of every person born in the country, is found in the fact that a simple act of congress is acknowledged by all to be sufficient, in defiance of all State laws and constitutions, to confer the privilege of United States citizenship upon persons of foreign birth. It would certainly be very absurd to give to congress such a power in regard to foreigners, if neither the United States constitution, nor the United States government had any similar power in regard to the natives of the country; for, in that case, the constitution would do more for foreigners than for natives.

V.

We therefore hold it demonstrable, at least, if not self-evident, that the constitution of the United States, “the supreme [12] law of the land,” must, simply by virtue of its supremacy, fix the status of every individual in the United States, independently of the State governments; that it must operate directly upon each and every individual, native or naturalized, declaring him entitled, as a citizen of the United States, to the protection and benefits of the national government, or declaring him to be property, subject only to the will of his owner, and therefore entitled to no personal protection at all, either from the general or State governments.

VI.

If it rests with the State governments to say whether the natives of the country shall be citizens of the United States, and have the protection of the national government, or be property, subject only to the will of their owners, then certainly it rests equally with the State governments to say whether naturalized persons shall be citizens or slaves; for naturalization by the United States government can at most but put the persons naturalized on a level with the natives. And that is all that the principle of naturalization implies.

This question therefore, as to the power of the States to convert men into property, is not one that concerns the natives of the country alone. It concerns all immigrants as well; since the general government can certainly have no more power to protect immigrants against being reduced to property, than it has to protect those born on the soil.

VII.

There are, then, three decisive proofs that the United States government must determine for itself, independently of the State governments, who are, and who are not (if any are not) citizens of the United States.

The first of these proofs is, that otherwise the United States government could not know its own citizens, or consequently know to whom its own proper and ordinary duties were due.

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The second proof is, that otherwise the United States government could not know when it had fulfilled its guaranty of “a republican form of government” to the citizens of the United States, within the States respectively.

The third proof is, that otherwise the United States constitution and laws could either do more for foreigners (by naturalization) than they can do for those born on the soil; or else naturalization itself, by the United States government, would be an utterly useless process for protecting the persons naturalized against being reduced to property by the State government.

VIII.

Assuming it now to be settled, that the constitution of the United States fixes the status of every person, as a citizen or a slave; and that it does so, “any thing in the constitution or laws of any State to the contrary notwithstanding;” let us ascertain what its decision on this point is. To do so, we have only to ascertain by and for whom the constitution of the United States was established. This the instrument itself has explicitly informed us. It declares itself to have been established by “the people of the United States,” for the benefit of “themselves and their posterity.” From this declaration of the constitution itself there can be no appeal. And the instrument is to be interpreted throughout consistently with this declaration. Thus interpreted, it implies that all the then “people of the United States,” with their “posterity,” were to be citizens of the United States, and, as such, to have the benefit and protection of the general government; and consequently that none of them could be lawfully reduced to the condition of property. It also authorizes congress to naturalize all persons of foreign birth, coming into the country, without discriminating between those that may come in voluntarily, and those that may be brought in against their will. It also authorizes Congress “to punish offences against the law of nations;” and thus authorizes the punishment of all attempts to enslave the people of other nations, whether they come here voluntarily, or are brought here [14] by force. It also, without making any discrimination as to persons, authorizes the writ of habeas corpus, which denies the right of property in man. It also requires the United States to “guarantee to every State in the Union a republican form of government;” under which at least all the citizens of the United States, within the State, shall have the protection of the laws. In these various ways, the constitution of the United States, “the supreme law of the land,” has made the principle of property in man impossible anywhere within the United States; and has empowered the general government to maintain that principle, in opposition to any subordinate or State government.

We are aware that the supreme court of the United States, in the Dred Scott case, have asserted that the phrase, “the people of the United States,” did not mean all the people, but only all the white people, of the United States. And they attempt to fortify this opinion by saying that the Declaration of Independence itself did not mean to assert that “all men were created equal,” but only that all white men were created equal. To this view of the case we will, at this time, offer no other answer than this: that, if this famous clause of the Declaration of Independence is to be interpreted according to this opinion of the supreme court, the whole instrument must also be interpreted in accordance with it; and the necessary consequence would then be, that the Declaration of Independence absolved only the white people of the country from their allegiance to the English crown, leaving the black people still subject to that allegiance, and entitled to corresponding protection. Thus Queen Victoria would have now, in our midst, four millions of subjects, whose rights she ought at once to take care of, as she would undoubtedly be very willing to do.

We are also aware, that, although “the idea that there could be property in man” was studiously excluded from the constitution itself, it is nevertheless historically known that an understanding existed, outside of the constitution, among some of the framers, and other politicians of that day, that, if the honest character of the instrument itself should be successful in securing its adoption by the people, these framers and others would then use [15] their influence to give to the instrument an interpretation favorable to the maintenance of slavery. And we are aware that it is now claimed that this outside understanding ought to be substituted, as it hitherto has been, for the instrument itself, and acknowledged as the real constitution, so far as slavery is concerned.

Our answer on this point is,—that this outside understanding could have existed among but a small portion of the whole people; that they dared not incorporate it in the constitution itself; that, instead of being any part of the constitution itself, it was but a traitorous conspiracy against the very constitution, which they, with others, induced the people of the United States to adopt; that it could have had no legal effect or validity, even among those who were actually parties to it; and that we, of this day, would not only be slaves, but idiots, if we were to allow the criminal purposes of these men to be substituted for the constitution; and thus suffer ourselves, in effect, to be governed by a set of dead traitors and tyrants, who no longer have any rights in this world; who, when living, dared put only honest purposes into the constitution; and who, if now living, would deserve to be punished for their treason and their crimes, rather than reverenced as patriots and statesmen, and taken as authority as to the true meaning of the constitution.

The fraudulent interpretation given to the constitution at large, in respect to slavery, has been accomplished mainly by means of the fraudulent interpretation given to the one word “free,” in the clause relative to representation and direct taxation. The conspirators against freedom, with their dupes, have, from the foundation of the government, claimed that this word was used to describe a free person, as distinguished from a slave. Where as it had been used in England for centuries, and in this country from its first settlement, to describe a native or naturalized person, as distinguished from an alien. Thus our colonial charters guaranteed that persons born in the colonies should “be free and natural subjects, as if born in the realm of England.” When the troubles arose between this and the mother country, in regard to taxation, our fathers insisted that they were “free [16] British subjects,” and therefore could not be taxed without their consent. And, up to the Revolution, the words free and freemen, if not the only words used, were the words principally used, to designate native or naturalized persons, as distinguished from aliens.

After the Revolution, the word “free” continued to be used in this political sense, through the country generally. And, at the time the constitution of the United States was adopted, it was so used in the constitution of Georgia, Art. XI.; in the general naturalization law of Georgia, passed Feb. 7, 1785, Sec. 2; in a statute of Georgia, passed Feb. 22, 1785, granting lands to the Count D’Estaing, and making him “a free citizen” of the State; in the constitution of South Carolina, Sec. 13; in a statute of South Carolina, passed March 27, 1787, naturalizing Hugh Alexander Nixon; in the constitution of North Carolina, Sec. 40; in the constitution of Pennsylvania, Sec. 42; in numerous acts of the legislature of Massachusetts, from the year 1784 to 1789, naturalizing the individuals named in them; in the charters of Rhode Island and Connecticut, then continued in force as constitutions; in the Articles of Confederation, Art. IV., Sec. 1; and in the Ordinance of 1787. The statutes and constitutions of several of the States used the words freeman and freemen in a nearly similar, if not in precisely the same, sense.

Usage, therefore,—even the usage of the then strongest slaveholding States themselves—and all legal rules of interpretation applicable to the case—and especially that controlling rule, which requires a meaning favorable to justice, rather than injustice, to be given to the words of all legal instruments whatsoever—required that the word “free,” in the constitutional provision relative to representation and direct taxation, should be understood in this political sense, to distinguish the native and naturalized inhabitants of the country from aliens, and not to distinguish free persons from slaves.

But slavery, which can be maintained only by force and fraud, has hitherto succeeded in palming off upon the country a false interpretation of the word “free.” And it is only by giving a [17] fraudulent meaning to the word “free,” that men have been made to believe that the constitution recognized the legality of slavery. Without the aid of this fraud, the other clauses, now held to refer to slaves, could probably never have had such a meaning fastened upon them; since there is nothing in their language that justifies such a meaning.

If we wish to enjoy any liberty ourselves, or do any thing for the liberation of others, it is time for us to emancipate ourselves from our intellectual and moral bondage to the frauds and crimes of dead slaveholders and their accomplices, and either read and execute our constitution as it is, or tear it in pieces. If the language of our constitution is not to be considered as conveying its true meaning, nor interpreted by the same rules by which all our other legal instruments are interpreted; if it is to be presumed, as it ever heretofore has been, that neither honest men, nor honest motives could have had any part in the formation or adoption of the constitution; but we are to search, outside of the instrument, for the private motives of every robber, kidnapper, hypocrite, scoundrel, and tyrant, who lived at the time it was adopted, and accept those motives, in place of those written in the instrument itself, as the only lawful principles of the government,—if such is the true mode of ascertaining the legal import of written constitutions, the sooner they are all given to the flames, the better it will be for the liberties of mankind, and the better we shall vindicate our own claims to the possession of common honesty and common sense. If we dare not correct the frauds of the past, and interpret our constitution by the same rules by which it ought to have been interpreted from the first,—if, in other words, we dare not decide for ourselves what the true principles of our constitution are, and whether those principles have been obeyed or violated by those appointed to administer it—we are ourselves wretched cowards and slaves, fit to be used as instruments for enslaving each other.

But, independently of the constitution of the United States, we know that slavery has never had any constitutional existence in this country, for these reasons:—

1. The colonial charters, the constitutional law of the colonies, [18] required the legislation of the colonies to “be consonant to reason, and conformable, as nearly as circumstances would allow, to the laws, customs, and rights of the realm of England.” This made slavery illegal up to the time of the Revolution.

2. Of all the State constitutions established and existing in 1787 or 1789, when the constitution of the United States was framed and adopted, not one established or authorized slavery. It was, therefore, impossible that the slavery then existing could have been legal.

3. Even of the statute law of the States, on the subject of slavery, in 1787 and 1789 (admitting such statute law to be, as it really was not, constitutional), none described the persons to be enslaved with such accuracy as that many, if indeed any, individuals could ever have been identified by it as slaves.

On the 19th of August, 1850, Senator Mason, of Virginia, confessed, in the Senate of the United States, that, so far as he knew, slavery had never been established by positive law in a single State in the Union. And in the United States House of Representatives, on the 14th day of March last, Mr. Curry, of Alabama, said,—

“No law, I believe, is found on our statute books authorizing the introduction of slavery; and, if positive precept is essential to the valid existence of slavery, the tenure by which our slaves are held is illegal and uncertain.”

He also, in the same speech, said,—

“It has been frequently stated in congress, that slavery was not introduced into a single British colony by authority of law; and that there is not a statute in any slaveholding State legalizing African slavery, or ‘constituting the original basis and foundation of title to slave property.’ ”

And he made no denial of the truth of this statement.

Thus we have abundant evidence that slavery had never had any legal existence in the country, up to the adoption of the constitution of the United States. And, if it had no legal existence at the time of the adoption of the United States constitution, that constitution necessarily made citizens of all the then people of the United States; for there can be no question that it made citizens of all, unless of such as were then legally held in bondage.

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But, even if the constitutions and statute-books of every State had legalized slavery in the most unequivocal manner, the constitution of the United States would nevertheless have given freedom to all; because it made “the people of the United States,” without discrimination, citizens of the United States; and was thenceforth to be “the supreme law of the land,” “any thing” then existing in, as well as ever afterwards to be incorporated into, “the constitution or laws of any State to the contrary notwithstanding.”

The adoption of a new constitution is a revolution; and the object of revolutions is to get rid of, and not to perpetuate, old abuses and wrongs. All new constitutions, therefore, should be construed as favorably as possible for the accomplishment of that end. For this reason, in construing the constitution of the United States, no notice can be taken of (with the view of perpetuating) any abuses or crimes tolerated, or even authorized, by the then existing State governments.

What excuse, then, has any one for saying, that, constitutionally speaking, our country is not a free one? free for the whole human race? and especially for all born on the soil?

IX.

The palpable truth is, that the four millions of human beings now held in bondage in this country are, in the view of the constitution of the United States, full citizens of the United States, entitled, without any qualification, abatement, or discrimination whatever, to all the rights, privileges, and protection which that constitution guarantees to the white citizens of the United States, and that their citizenship has been withheld from them only by ignorance, and fraud, and force.

Such being the truth in regard to this portion of the citizens of the United States, it is the constitutional duty of both the general and State governments to protect them in their personal liberty, and in all the other rights which those governments secure to the other citizens of the United States.

It is as much the constitutional duty of the general government, [20] as of the State governments, to protect the citizens of the United States in their personal liberty; for if it cannot secure to them their personal liberty, it can secure to them no other of the rights or privileges which it is bound to secure to them.

To enable the general government to secure to the people their personal liberty, it is supplied with all necessary powers. It is authorized to use the writ of habeas corpus, which of itself is sufficient to set at liberty all persons illegally restrained. It is authorized to arm and discipline the people as militia, and thus enable them to do something towards defending their own liberty. It is authorized “to make all laws which shall be necessary and proper for carrying into execution” the powers specifically enumerated. That is to say, it is authorized “to make all laws which shall be necessary and proper for carrying” home to each individual every right and every privilege which the constitution designs to secure to him; and the United States courts are required to take cognizance “of all cases in law and equity arising under this constitution, the laws of the United States, and treaties made, or which shall be made, under their authority.” In other words, they are authorized to take cognizance of all cases in which the question to be tried is the right which any individual has under the constitution, laws, or treaties of the United States. The United States are also bound to guarantee to all the citizens of the United States, within the States, the benefits of a republican form of government. There is, then, obviously no lack of powers delegated to the general government, to secure the personal liberty of all its citizens.

That it is as much the duty of the general, as of the State, governments to secure the personal liberty of the people of the United States, will be obvious from the following considerations:—

The people of the United States live under, and are citizens of, two governments, the general and the State governments. These two governments are mainly independent of each other; having, for the most part, distinct powers, distinct spheres of action, and owing distinct duties to the citizen. The purpose of the general [21] government is to secure to the individual the enjoyment of a certain enumerated class of rights and privileges; and the object of the State governments is to secure him in the enjoyment of certain other rights and privileges. But both governments have at least one duty in common, viz., that of securing personal liberty to the citizen. This must necessarily be a duty common to both governments, because the enjoyment of each of the classes of rights and privileges before mentioned, to wit, those that are to be secured by the general government, and those that are to be secured by the State governments, necessarily imply the possession of personal liberty on his part; since without this liberty, none of the other rights or privileges to be secured to him by either government, can be enjoyed. It is necessary, therefore, that each government should have the right to secure his liberty to him, else it cannot secure to him the other rights and privileges which it is bound to secure to him. It is as necessary that the general government should have power to secure to him personal liberty, in order that he may enjoy all the other rights and privileges which the general government is bound to secure to him, as it is that the State governments should have power to secure his personal liberty, in order that he may enjoy all the other rights and privileges which it is the duty of the State governments to secure to him. It would be absurd to say that the general government is bound to secure to him certain rights and privileges, which implied the possession of personal liberty on his part, as an indispensable pre-requisite to his enjoyment of them, and yet that it had no power of its own to secure his liberty; for that would be equivalent to saying that the general government could not perform its own duties to the citizen, unless the State governments should have first placed him in a condition to have those duties performed,—a thing which the State governments might neglect or refuse to do.

The State governments have evidently no more right to interfere to prevent the citizen’s enjoyment of the rights and privileges intended to be secured to him by the general government, than the general government has to interfere to prevent his enjoyment of the rights and privileges intended to be secured [22] to him by the State governments. For example, the State governments have no more right to prevent his going into the post-offices, custom-houses, and court-houses, which the general government has provided for his benefit, than the general government has to prevent his travelling on the highways, or going into the schools, or court-houses, which the State governments have provided for his benefit.

This proposition seems to us so manifestly true as to need no elaboration. And yet, if either of these governments can reduce him to slavery, it can deprive him of all the rights and privileges which the other government is designed to secure to him. In other words, it can deprive that other government of a citizen, and thus abolish that other government itself, so far as that citizen is concerned. Certainly a State government has no more power to do this wrong towards the national government, than the national government has to do a similar wrong towards a State government. In short, neither government has any constitutional power to deprive the other of a citizen, by making him a slave.

Furthermore, each of these two governments has an equal right to defend their common citizens against being enslaved by the other. If, for example, the general government were to attempt to enslave its citizens within a State, the State government would clearly have the right to defend them against such enslavement; because they are its citizens as well as citizens of the United States. And, for the same reason, if a State government attempt to enslave its citizens within the United States, the general government clearly has the same right to resist such enslavement, that the State government would have in the other case; because they are citizens of the United States, as well as of the State.

This power of each government to resist the enslavement of their common citizens by the other, is clearly a power necessary for its self-preservation; a power that must, of necessity, belong to every government that has the power of maintaining its own existence. It must, therefore, as much belong to the general as to the State governments.

[23]

Still further: The principal, if not the sole object of our having two governments for the same citizen, would be entirely defeated, if each government had not an equal right to defend him against enslavement by the other. What is the grand object of having two governments over the same citizen? It is, that, if either government prove oppressive, he may fly for protection to the other. This right of flying from the oppression of one government to the protection of the other, makes it more difficult for him to be oppressed, than if he had no alternative but submission to a single government. This certainly is the only important, if not the only possible, advantage of our double system of government. Yet if either of these two governments can enslave their common citizen, and the other has no right to interfere for his protection, the principal, if not the only, benefit of our having two governments, is lost.

But our governments, instead of regarding this great and primary motive for their separate existence, have hitherto ignored it, and acted upon the theory, that it is the duty of each to go to the assistance of the other, when the latter finds its own strength inadequate to the accomplishment of its tyrannical purposes. This we see in the case of fugitive slaves. When a citizen of the United States, reduced to slavery by a State government, or by a private individual with the consent and co-operation of the State government, makes his escape beyond the jurisdiction and power of the State government, the United States government pursues him, recaptures him, and restores him to his tyrants. Thus the citizen, instead of finding his security in the double system of government under which he lives, finds in it only a double power of oppression united against him. What grosser violation of all the rational and legitimate purposes of our double system of government can be conceived of than this?

If these views are correct, it is just as much the constitutional duty, and just as clearly the constitutional right, of the general government to protect the people of the United States against enslavement by the State governments, as it is the constitutional duty and right of the State governments, to protect the same people against enslavement by the general government. [24] The general government is as much set as a guard and a shield against enslavement by the State governments, as the latter are as guards and shields against enslavement by the former.

This view, too, of the object to be accomplished by our double system of government,—viz., the greater security of the citizen against the oppression of his government,—presents, more clearly perhaps than has before been done, the necessity that the general government should determine for itself, independently of the State governments, who are its own citizens, and who are entitled to its protection; for otherwise the general government could have power to protect against a State government only those whom the State government should consent to have thus protected against itself. It would be an absurdity to say that the general government was established to protect the people against the State governments, and yet that it is left to the State governments themselves to say whom the general government may thus protect. To allow the State governments the power to say whom the general government may, and whom it may not, protect against themselves (the State governments), would be depriving the general government of all power to protect any. It would be like allowing a man to protect, against a wolf, all lambs except those whom the wolf should choose to devour.

The conclusion necessarily is, that the general government must determine for itself, independently of the State governments, who are its citizens, and whom it will protect; and, if the general government makes this determination, it can, under the constitution of the United States, make no other determination than that all the native and naturalized inhabitants of the United States are its citizens, and entitled to its protection.

X.

There is still another point of great practical importance to be considered. It is this: If those now held in bondage in this country are, in the view of “the supreme law of the land,” citizens of the United States, entitled to the full privileges of citizenship equally with all the other citizens of the United States, [25] then it is not only the constitutional right and duty of both the general and State governments to protect them in the enjoyment of all their rights as citizens, but it is also not merely a moral duty, but a strictly legal and constitutional right, of all the other citizens of the country to go, in their private capacity as individuals, to the rescue of those enslaved.

It is as much a legal right of one citizen to rescue another from the hands of a kidnapper, as to rescue him or her from a robber, ravisher, or assassin. And all the force necessary for the accomplishment of the object may be lawfully used.

When the government fails to protect the people against robbers, kidnappers, ravishers, and murderers, it is not only a legal right, but an imperative moral duty, of the people to take their mutual defence into their own hands. And the constitution recognizes this right, when it declares that “the right of the people to keep and bear arms shall not be infringed;” for “the right of the people to keep and bear arms” implies their right to use them when necessary for their protection.*

We claim it as a legal and constitutional right to travel in all parts of our common country, and to perform the common offices of humanity towards all whom we may find needing them. And if, in our travels, we chance to see a fellow-man in the hands of a kidnapper or slaveholder, we claim the right to rescue him, at any necessary cost to the kidnapper. And, if any part of our country be unsafe for single travellers, or small companies of travellers, we claim the right to go in companies numerous enough to make ourselves safe, and to enable us to rescue all whom we may find needing our assistance.

And it is the legal duty of both the United States and all [26] State courts—judges and juries—to protect us in the exercise of these rights.

XI.

We call particular attention to the duties of juries in this matter. We believe in that noblest, and incomparably most valuable, of all the judicial opinions ever rendered by the Supreme Court of the United States, in which they declared, by the mouth of John Jay, the first, and great, and honest Chief-Justice, that even in civil suits (as well as criminal) juries have a right to judge of the law as well as the fact.*

We also believe with the United States House of Representatives, who, in 1804, by a vote of 73 yeas to 32 nays, resolved to impeach Samuel Chase, one of the Justices of the Supreme Court of the United States, for, as they said, “endeavoring [in the trial of John Fries for treason] to wrest from the jury their indisputable right to hear argument, and determine upon the question of law, as well as the question of fact, involved in the verdict, which they were required to give,” and declared such conduct “irregular,” and “as dangerous to our liberties as [27] it is novel to our laws and usages;” and that on “the rights of juries [to determine the law, as well as the fact] ultimately rest the liberty and safety of the American people.”

We believe more than this. We believe that jurors, under our constitution, not only have the right to judge what the laws are, and whether they are consistent with the constitution, but that they have all the ancient and common-law right of jurors to judge of the justice of all laws whatsoever, which they are called upon to assist in enforcing, and to hold all of them invalid which conflict with their own ideas of justice. And that they are under no legal or moral obligation to hold valid every iniquitous statute, which they may suppose the letter of the constitution can possibly be interpreted to cover. It is their duty, as it is the duty of congresses and judges, to strive to see how much justice, and not how much injustice, the constitution can be made to authorize.

We believe that juries, and not congresses and judges, are the palladium of our liberties. We do not at all admit, as is now almost universally assumed to be the fact, that the people of this nation have ever given their rights and liberties into the sole keeping of legislators and judges. We hold that the assumption of the supreme court of the United States to decide, authoritatively for the people of this country, what their rights and liberties are, and what is the true meaning of the constitution, is an assumption of absolute power—an entire and flagrant usurpation—authorized by no word or syllable of the constitution; and that it should not be submitted to for a moment, unless we all of us design to be slaves.

We believe, too, that the practice of selecting jurors by judges and marshals, the servile and corrupt instruments of the government, who will of course select only those known to be favorable to the tyrannical measures of the government, is as utterly unconstitutional, as it necessarily must be destructive of liberty. We believe that juries should be, in fact, what they are in theory, viz., a fair epitome or representation of “the country,” or people at large; and that to make them so, they must be selected by lot, or otherwise, from the whole body of [28] male adults, without any choice or interference by the government, or any of its officers; and that when selected, no judge or other officer of the government can have any authority to question them as to whether they are in favor of, or opposed to, the laws that are to be put in issue.

In short, we believe it to be the purpose of our systems of government to maintain in force only those principles of justice which the people generally can understand, and in which they are agreed; and not to invest one portion of the people, either minority or majority, with unlimited power over the others.

Evidently the only tribunal known to our constitution, and to be relied on for the maintenance of such principles, is the jury.

We, therefore, hold that all legislative enactments and judicial opinions should be held subordinate to that general public conscience, which is presumed to be represented in the jury-box, by twelve men, taken indiscriminately from the whole people, and capable of giving judgments against persons or property only when they act with entire unanimity. And we believe it to be the primary and capital object of our constitutions thus “to get twelve honest men into a jury-box,” to do justice, according to their own notions of it, between man and man, and to see that only such measures of government shall be enforced as they shall all deem just and proper.

We believe that, under this system of trial by jury, it will be safe for one human being to go to the rescue of another from the hands of kidnappers, ravishers, and slaveholders. We believe, also, that a government, so powerful and so tyrannical as to restrain men from the performance of these primary duties of humanity and justice, ought not to be suffered to exist.

XII.

Turning now from our constitution, as it is in theory, and looking at our government, as it is in practice, what do we find? Do we find our national government securing to all its citizens the rights which it is constitutionally bound to secure to them? No. It does not know, nor even profess to know, for [29] itself, who its own citizens are. It does not even profess to have any citizens, except such as the separate States may see fit to allow it to have. It dares not perform the first political duty towards the people of the United States individually, without first humbly asking the permission of the State governments. It ventures timidly, and hat in hand, within each State, as if fearful of being treated as an intruder, and obsequiously inquires if the State government will be pleased to allow “the supreme law of the land” the privilege of having a few citizens within the State, to save it from falling into contempt, and becoming a dead letter? Shamefacedly confessing its own barrenness, it simply offers itself as a dry nurse to any political children whom the States may see fit to commit partially to its care. Some of the States, confiding in its subserviency and desire to please, graciously suffer the forlorn and harmless creature to busy itself in various subordinate services, such as carrying letters, &c., for all their citizens. Others, less gracious towards it, or less disposed to allow their citizens the luxury of such a servant, give it strict orders to do nothing for these, those, and the others of their people—the exceptions amounting, in some States, to one half of the whole population. And the submissive creature follows these instructions to the letter, living, as it does, in perpetual fear lest the slightest transgression, on its part, should be followed by its summary dismissal from the political household. The only dignity left it is its name. It still calls itself the United States Government; fancies it has citizens of its own, whom it protects; plumes itself, in the eyes of the world, on its greatness and strength; talks contemptuously, and even indignantly, of those governments that suffer their subjects to be oppressed; and ostentatiously proffers its protection to those of all lands who will accept it. Yet all the while the affrighted and imbecile thing sees its own citizens snatched away from it, at the rate of a hundred thousand per annum, by the State governments, and dares neither lift its finger, nor raise its voice, to save one of them from the auctioncer’s block, the slave-driver’s whip, the ravisher’s lust, the kidnapper’s rapacity, or the ruffian’s violence. The number of its living citizens (to say nothing of the dead) of [30] whom it has thus been robbed, amounts at this day to some four millions; and the number doubles in every twenty-five years. Nevertheless, its greatest anxiety still is lest its servility and acquiescence shall not be so complete as to satisfy these kidnappers of its citizens. The only symptom of courage it dares ever exhibit, as against a State, is when it attempts some rapacious or unequal taxation, or commits the unnatural crime of pursuing its own flying citizens, not to protect them, but to subject them again to the tyranny from which they have once escaped.

XIII.

While the government of the nation is thus prostrate and degraded, the people of the nation—at least that portion of them who show themselves in political organizations—instead of being alive to the authority of “the supreme law of the land,” and the rights of the people under it, are divided into four wretched, infamous factions, all of whom agree in the political absurdity, that the status of a man, relative to “the supreme law of the land,” is fixed by some subordinate law; that the rights of a man under the constitution of the United States are fixed by the constitutions and laws of the separate States. All of them agree, therefore, that the States may convert at least four millions citizens of the United States into property, with their posterity through all time. All of them agree in, and proclaim, the inviolability of property in man, within the United States, where alone the United States government has any jurisdiction of the question; and disagree with each other only as to the inviolability of property in man, outside of the United States, where the United States have no political jurisdiction at all.

XIV.

We repeat that the United States has no political jurisdiction at all, outside of the United States. By this we mean that it has no political jurisdiction over people inhabiting the new countries west of the United States, which the United States has hitherto [31] assumed to govern, under the name of “Territories.” And we feel bound to make this assertion good.

Where does the constitution grant congress any power to govern any other people than those of the United States? Even the war-making power would not authorize us to hold a conquered people in subjection indefinitely, but only so long as they should remain enemies, or refuse to do justice. The treaty-making power is no power to make treaties adverse to the natural rights of mankind. It, therefore, includes no power to buy and sell mankind, with the territories on which they live. It no more implies a power, on our part, to purchase foreign people, and govern them as subjects, than it implies a power to sell a part of our own people to another nation, to be governed as subjects.

The only other power which can be claimed as authorizing such a government, is granted in the following words:

“The congress shall have power to dispose of, and make all needful rules and regulations respecting, the territory [land] or other property, belonging to the United States.”

Here is no grant of general political power over people, either within or without the United States; but only a power to control and dispose of, as property, the land—for “territory” is but land—and other property, belonging to the United States.

To make this idea more evident, let us divide the provision into two parts, and read them separately as follows:

1. “The congress shall have power to dispose of the territory [land] or other property, belonging to the United States.”

Here plainly is no grant of political power over people.

2. “The congress shall have power to make all needful rules and regulations respecting the territory [land] or other property belonging to the United States.”

Here is plainly no more grant of political power in connection with the land, than in connection with any “other property” belonging to the United States.

The power to “make all needful rules and regulations respecting land or other property belonging to the United States,” is no grant of general political power over people.

The power granted is only such a degree of power over land [32] and other property belonging to the United States, as may be necessary to secure such land and other property to the uses of the United States.

That this power is not one to establish any organized government over people, is proved by the fact that the power is certainly as ample in regard to “territory and other property,” within any of the United States, as to territory and other property, outside of the United States. If, therefore, the power included a power to set up an organized government or territory outside of the United States, it would equally include a power to set up an organized government within each State, to the exclusion of the State authority, wherever the United States had “territory or other property” within a State. But nobody ever dreamed that the power authorized any such political monstrosity as this.

There is nothing in the language of the constitution, that implies that the land or other property spoken of, is outside of the United States. And as ours is distinctly a government of the United States, and not of other countries, the legal presumption is that the land and other property—more especially the land—belonging to the United States, is to be found within the United States, and not in other countries.

The United States have no rightful ownership of the unoccupied lands west of the United States. It is against the law of nature, and therefore impossible, that they should have any such ownership. Land is a part of the natural wealth of the world, created for the sustenance of mankind, and offered by the Creator as a free gift to those, and those only, who take actual possession of it. And actual possession means either actually living upon it, or improving it, by cutting down the trees, breaking up the soil, throwing a fence around it, or bestowing other useful labor upon it. Nothing short of this actual possession can give any one a rightful ownership of wilderness lands, or justify him in withholding it from those who wish to occupy it. Governments, which are but associations of individuals, can no more acquire any rightful ownership in wild lands, without this actual possession, than single individuals can do so. Until such lands are wanted [33] for actual use, they must remain free and open for anybody and everybody, who chooses, to take possession of, and occupy them. Governments have no more right to assume the ownership of these lands, and demand a price for them, than they have to assume the ownership of the atmosphere, or the sunshine, and demand a price for them. They have no more right to claim the ownership of such lands, than of the birds and quadrupeds that inhabit them; or than they have to claim property in the ocean, and to demand a price of all who either sail upon it, or take fish out of it.

It is no answer to say that our government bought these lands of France or Mexico, for neither France nor Mexico had any rightful property in them, and could, therefore, convey no rightful title to them. Even in lands purchased of the Indians, the United States acquire no rightful property, except only in such as the latter actually cultivated, or occupied as habitations. Those which they merely roamed over in search of game, they had no exclusive property in, and could accordingly convey none.

The United States, therefore, have no rightful property in wild lands, even within the United States. Still less, if possible, have they any such property in wild lands outside of the United States.

There is nothing in the constitution that implies that the United States have any property in wild lands, either within or without the United States. “The territory [land] or other property belonging to the United States,” spoken of in the constitution, must be presumed to be such land and other property as the United States can rightfully own; and not such as they may simply assume to own, in violation of the law of nature, and the natural rights of mankind.

There is just as much authority given to congress, by the constitution, to assume the ownership of the atmosphere, both within and without the United States, and “to dispose of, and make all needful rules and regulations respecting” it, as there is for their assuming such a power over wild lands, either within or without the United States.

This power granted to congress must be construed consistently, and only consistently, with the law of nature, if that be possible, and with the general purposes of the government. It [34] must, therefore, if possible, be construed as applying to occupied, instead of wild lands, and to those lying within, rather than to those lying beyond, the geographical limits of the United States. And this is possible. “The power to dispose of, and make all needful rules and regulations respecting the territory [land] and other property belonging to the United States,” and lying and being within the United States, is a power constantly needed in carrying on the daily operations of the government. It is needed in regard to every post-office, court-house, custom-house, or other real or personal property, whether absolutely owned, or temporarily occupied, by the United States. The power applies as well to lands and buildings temporarily leased, as to those absolutely owned; because a lease is a partial ownership.

The constitution specially provides that “over all places purchased by the consent of the legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings, congress shall have power to exercise exclusive legislation.” But inasmuch as the States might not give their consent—and could not even be expected to give their consent—to this “exclusive legislation” over all the “places” which the United States might purchase (or lease) for post-offices, court-houses, and “other needful buildings,” it was necessary that congress, instead of a “power to exercise exclusive legislation” over such “places,” should have power—without excluding the general jurisdiction of the States—“to make all needful rules and regulations respecting the territory [land, “places”] or other property” thus owned or occupied by the United States, in order to secure them to the uses, for which the United States designed them. Without such a power, the United States eould not establish even a post-office, without first getting the consent of the legislature of the State in which it was to be established.

We have, therefore, no need—in order to find “territory” [land, “places”] for this power to apply to—to assume that the United States, in violation of the law of nature, are the owners of wild lands, either within or without the United States. Still less have we need to assume that our government has power to [35] exercise absolute political authority over peoples outside of the United States, in violation of the natural right of all men to govern themselves.

Peoples living outside of the United States, are, to us, foreign nations, to all intents and purposes. And it is of no importance whether those peoples are many or few; whether those countries are thinly or densely populated; whether the countries are contiguous to, or distant from the United States. In either case they are alike independent of us. Whether they are well, or ill governed, or have no government at all, is, politically speaking, no concern of ours.

Peoples settling on the lands west of the United States, are therefore, so far as we are concerned, independent nations, over whom we have no more political jurisdiction, than over the people of Canada, or England, or France, or Japan. Whether they have any organized governments at all, is no affair of ours, any more than whether the Indian tribes have, or have not, organized governments.

The fact that any of these peoples were once citizens of the United States, does not affect the question. We acknowledge and maintain the natural right of all men to renounce their country. And when our people leave their country, by making their permanent homes beyond its limits, they do renounce it. And if they ever wish to come into the Union, they must be admitted as States, the same as any other nation, that should wish to come into the Union, would have to do.

For these reasons we have, constitutionally, no political jurisdiction whatever over those countries west of the United States, which we are in the habit of governing under the name of “Territories.”*

[36]

XV.

If any of our citizens are carried off by force into those countries, and there held as slaves, we have the right, by force of arms, if need be, to compel their restoration, the same as if they [37] had been carried into any other country. And that is all the political power which our constitution gives us over slavery in those countries. We have no more power to assume general [38] political jurisdiction there, in order to prevent our people being carried there as slaves, than we have to assume similar jurisdiction over any other parts of the earth, in order to prevent our people being carried into them as slaves.

XVI.

Whether, therefore, property in man be, or be not, lawful in the United States, we have no general political jurisdiction over it outside of the United States. And we have no more jurisdiction over it in the territories, or countries west of the United States, than we have in any other territories or countries in the world, outside of the United States.

XVII.

If any portion of our people are, in the view of our constitution, lawful property within the United States, then, constitutionally speaking, their owners have the right to carry them out of the United States into any other part of the world, and there hold them, or lose them, according to the laws that prevail there. If, on the other hand, no part of our people are, in the view of the constitution, lawful property within the United States, then, constitutionally speaking, we are bound to prevent any of them being carried out of the country as slaves, no matter what part of the world they may be carried to. And this is all we have to do with slavery outside of the United States.

XVIII.

Neither has congress any authority to determine the question whether new States shall be admitted into the Union as slaveholding or as non-slaveholding States. All new States admitted into the Union must come into it subject to the constitution of the United States as “the supreme law.” If this “supreme law” declares one man to be the property of another, then, constitutionally speaking, he is and must be such property as [39] much in the new States as in the old; and congress has no power to prevent it. If, on the other hand, that supreme law declares that there is no property in man, then congress has no power to set aside this supreme law in favor of any new State, any more than in favor of any of the old ones.

XIX.

Finally, even if it were admitted that congress has power under the constitution to govern countries outside of the United States, under the name of “territories,” still the law of property, as established by the constitution within the United States, would necessarily be the law of those territories; for the constitution would be as much the supreme law of the territories as it is of the United States. If, therefore, the constitution makes a man property within the United States, it would necessarily make him property in the territories. If, on the other hand, the constitution makes every man free within the United States, it would necessarily make every man free in the territories.

XX.

Whether, therefore, we have or have not political jurisdiction over the “territories,” so called, the whole question of slavery, so far as our government is concerned, must be settled by determining whether the constitution of the United States, “the supreme law of the land,” does or does not make a man a slave within the United States. If it does make him a slave anywhere within the United States, it makes him a slave everywhere within the United States—in old States and new States—and also in the territories, if our government has political jurisdiction over the territories. If, on the other hand, the constitution makes everybody free within the United States, it makes everybody free also in the territories, if our government has jurisdiction there.

[40]

XXI.

In short, we have one “supreme law” on this point, extending over all the States, and over any other countries (if any others there be) subject to the jurisdiction of the constitution. And when we shall have determined whether that supreme law makes a man property or not, either in Massachusetts or Carolina, we shall have determined it for all other localities, whether States or territories, within which the constitution now is, or ever shall be, the “supreme law.”

XXII.

There is, therefore, no room or basis under the constitution for the four different factions that now exist in this country, in regard to slavery, either in the States, or in the territories. There is room only for this single question, viz.: Does the Constitution of the United States, “the supreme law of the land,” make one man the property of another? All who take the affirmative of this question, and intend to live up to that principle, are bound, in consistency, to unite for the maintenance of it in all the States, and in all the territories (if the government has jurisdiction in the territories). All those who take the negative of the same question, and intend to live up to that principle, are bound, in consistency, to unite their forces for carrying that principle into effect throughout the United States, and throughout the territories (if congress has jurisdiction over the territories). And there is no middle ground whatever, on which any man can consistently stand, between these two directly antagonistic positions.

We ask all the people of the United States to take their position distinctly on the one side or the other of this question, at the ensuing election; and not to waste their energies or influence upon any of the frivolous and groundless issues, which divide the four different factions now contending for possession of the government.

[41]

XXIII.

Of all these factions, the Republican is the most thoroughly senseless, baseless, aimless, inconsistent, and insincere. It has no constitutional principles to stand upon, and it lives up to no moral ones. It aims at nothing for freedom, and is sure to accomplish it. The other factions have at least the merits of frankness and consistency. They are openly on the side of slavery, and make no hypocritical grimaces at supporting it. The Republicans, on the other hand, are double-faced, double-tongued, hypocritical, and inconsistent to the last degree. We speak now of their presses and public men. Duplicity and deceit seem to be regarded by them as their only available capital. This results from the fact that the faction consists of two wings, one favorable to liberty, the other to slavery; neither of them alone strong enough for success; and neither of them honest enough to submit to present defeat for their principles. How to keep these two wings together until they shall have succeeded in clutching the spoils and power of office, is the great problem with the managers. The plan adopted is, to make, on the one hand, the most desperate efforts to prove that their consciences and all their moral sentiments are opposed to slavery, and that they will do every thing they constitutionally can, against it; and, on the other, to make equally desperate efforts to prove that they have the most sacred reverence for the constitution, and that the constitution gives them no power whatever to interfere with slavery in the States. So they cry to one wing of their party, “Put us in power, and we will do every thing we constitutionally can for liberty.” To the other wing, they cry, “Put us in power. You can do it with perfect safety to slavery—for constitutionally we can do nothing against it, where it is.”

It is lucky for these Jesuitical demagogues that there happen to be, bordering upon the United States, certain wilderness regions, over which the United States have hitherto usurped jurisdiction. This gives them an opportunity to make a show of living up to their professions, by appearing to carry on a terrific war against slavery, outside the United States, where it is not; [42] while, within the United States, “where it is,” they have no political quarrel with it whatever, but only make a pretence of having very violent moral sentiments.

Outside of the United States, where slavery is not, and where the United States really have no jurisdiction, the battle is made, by these men, to appear to be a real battle of statutes, at least, if not of principles. Within the United States, where slavery is, and where the United States have jurisdiction, the contest is plainly a mere contest of hypocrisy, rhetoric, and fustian, and a selfish struggle for the honors and spoils of office.

In this warfare, in which it is understood that slavery is not to be hurt, the weapons employed are mostly absurd, bombastic, and fraudulent watchwords, in preference to any constitutional principles, that might be dangerous to the object assailed. Among the watchwords are these: “Freedom National, Slavery Sectional;” “Free Labor and Free Men;” “Non-extension of Slavery;” “Down with the Slave Oligarchy,” &c., &c. All these, as used by the Republicans, are either simple absurdities, or fair-sounding falsehoods.

Take, for example, “Freedom National, Slavery Sectional.” This is both an absurdity and a falsehood, on its face; for how can freedom be national, so long as any section of the nation can be given up to slavery? “Freedom National,” to have any sense, implies a paramount law for freedom pervading the whole nation; and is inconsistent with the idea that slavery can be legal in so much even as a section of the nation. But, in the mouths of the Republicans, “Freedom National, Slavery Sectional,” means simply that, for territory outside of the United States, there is a paramount national law, that requires, or at least permits, liberty; while, within the United States, this national law is, or legally may be, overborne by local or sectional laws; and thus the entire territory of the nation be given up to “sectional slavery.”

If there be any territory, within the United States, in regard to which this assumed national law of freedom is paramount, it can be, at most, only the District of Columbia, and a few places occupied as forts, arsenals, &c., over which congress have “exclusive [43] legislation,”—places which are but as pin-points on the map of the nation.

And yet this false, absurd, self-contradictory, and ridiculous motto, which really means nothing for freedom, but gives up the whole nation to slavery, if the sections (States) so choose, has already had a long life, as expressing one of the cardinal principles of the Republican faction.

The motto, “Free Labor and Free Men,” in the mouths of the Republicans, is as false and Jesuitical as “Freedom National, and Slavery Sectional.” In the mouths of honest men, it would imply that they were intent upon giving freedom to labor and men, that now are not free. But in the mouths of Republicans, it only means that they are looking after the interests of the labor and the men, that are already free; and that, as for the the labor and the men, that are not free, they may remain in bondage for ever, for aught the Republicans will ever do to help them out of it.

This false, heartless, and infamous watchword—for it deserves no milder description—has also had a long life, as expressing a cardinal principle of the party.

But “The Non-Extension of Slavery” is the transcendant principle of these pretended advocates of liberty. It is in this sign they expect to conquer. What does it mean, or amount to? Does it mean the non-extension of slavery in point of time? No; for slavery may be extended through all time, without obstruction from them. Does it mean that slavery shall not be extended to new victims? No; for they consent that it may be extended to all the natural increase of the existing slaves, until at least the 850,000 square miles, now occupied by slavery, shall be filled with slaves to its utmost capacity.

What, then, is the extension to which they are so violently opposed? Why, it is only this: If a slave is carried by his owner from one place to another, that is an extension of slavery!

To continue a man and his posterity in slavery through all time, in one locality, is no extension of slavery, within the Republican meaning of the term. But to remove him from that locality to another, is an “extension of slavery” too horrible for these devotees of liberty to think of.

[44]

But these Republicans, either foolishly or fraudulently, encourage the idea, that if slavery can but be confined within the space it now occupies, it will soon die out; whereas, in truth, so far as mere space is concerned, it probably has enough already for it to live and flourish in for two, three, or five hundred years.

“Down with the Slave Oligarchy,” would, to the minds of most men, convey the idea of an intention to overthrow the power of the slaveholders, by annihilating their right of property in their slaves. But in the creed of the Republicans, “Down with the Slave Oligarchy” means no such thing. It means only that the slaveholders shall not have so much influence in the administration of the national government, and especially that they shall not have so large a share of the national offices, as they have hitherto had the address to secure! And these wise Republicans imagine they can overthrow the slave oligarchy, and destroy their influence in the government, at the same time that they (the Republicans) maintain the inviolability of the three or four thousand millions of dollars of property in men, on which the slave oligarchy rest, and whence all their influence is derived.

But suppose the slave oligarchy can be overthrown, after this plan of the Republicans, what right have the latter, as consistent men, acting under the constitution, and pledged to its support, to attempt to overthrow the slave oligarchy, so long as they (the Republicans) concede that the oligarchy are not violating the constitution, by holding their fellow-men as property? According to the Republican interpretation of the constitution, the slave oligarchy are just as good citizens of the United States, exercising only their constitutional rights, as are the Republicans themselves. Indeed, there would be nothing inconsistent in the entire slave oligarchy being members of the Republican faction, in full communion. There is nothing in the political creed of the latter, that really need stick at all in the throats of the former; and the Republicans themselves, or, at least, a large portion of them, would, no doubt, be very much delighted by such an accession to their numbers.

“The Suppression of the Slave Trade” appears to be becoming one of their party watchwords. But, if southern juries will neither indict, nor convict, how is the slave trade to be suppressed? [45] and how can the Republicans ask or expect southern juries to indict, or convict, for bringing slaves from Africa, so long as they (the Republicans) concede the right of property in four millions of native Americans? There is plainly no consistent way whatever, of suppressing the slave trade, except by giving freedom to the slaves already in the country, and all that may be brought in, and thus putting an end to the slave market. And there is, probably, no other possible way of suppressing it. Certainly, there is no other possible way of suppressing it, unless by such an enormous expenditure as the nation will never be likely to incur. “The Suppression of the Slave Trade” may, therefore, fairly be set down as another of the fraudulent watchwords of the Republican faction.

Still another specimen of the hypocrisy of this faction, is to be found in its name. It has taken to itself the name of Republican. They are great sticklers for the constitution, and many, or most, of them “strict constructionists,” at that. The word, “Republican,” is found but once in the constitution, and we are bound to presume that this constitutional party have chosen their name with reference to the signification of that word in the constitution. But do they propose “to guaranty to every State in this Union a republican form of government?”—a government that shall secure to all the citizens of the United States, within the States, the protection of the laws? And do they propose that the United States government shall ascertain for itself, independently of the State governments, who its own citizens are, within the States, that it may fulfil this guaranty to them? Not at all. So far from it, they hold, in the language of the Chicago platform, that—

“The maintenance inviolate of the rights of the States, and, especially, the right of each State to order and control its own domestic institutions, according to its own judgment exclusively, is essential to that balance of power, on which the perfection and endurance of our political faith depend; and we denounce the lawless invasion, by armed force, of any State or Territory, no matter under what pretext, as among the gravest of crimes.”

This means, if it means any thing, that the “Slave Oligarchy,” or any other body of men, however small, who may chance to get the power of a State into their hands, may reduce anybody [46] and everybody, black and white, to slavery, without interference from the general government; and that for private persons to go to the rescue of their fellow-men, from these robbers, ravishers, and kidnappers, would be “among the gravest of crimes.”

This is giving to slavery more than it ever asked. Even the Dred Scott judges themselves set up no such claim for it as this. Their opinion admits that whites are citizens of the United States, and, because they are such, cannot be enslaved by the States. Those judges are, in fact, “non-extensionists,” and have a much better claim to that title than the Republicans; for they conceded that slavery could not be extended beyond the limits of a single race; whereas the Republicans acknowledge no such, or any other, limit to slavery in the States; or what is the same thing, to slavery in the United States.

We believe that no body even of southern men, respectable either for numbers, or as representatives of southern sentiment, have ever attempted to carry this doctrine of State Rights to such lengths, in behalf of slavery, as it is here conceded to them by the pretended friends of liberty. In fact, these men have been attempting, for years, to rival, at least, if not to outdo, even southern men, in their advocacy of this trumpery doctrine of “State Rights.” And they have at length succeeded in absolutely outdoing them. And their motive has been, that they might gain the reputation of being champions of liberty at the north, and at the same time avoid the necessity of performing any service for liberty at the south, where alone any real service was needed.

It is of no avail, as a defence for the Republicans, to say, that, in another resolution, at Chicago, they declared—

“That the maintenance of the principles promulgated in the Declaration of Independence, and embodied in the federal constitution, is essential to the preservation of our Republican institutions; that the federal constitution, the rights of the States, and the union of the States, must and shall be preserved; and that we re-assert ‘these truths to be self-evident,—that all men are created equal; that they are endowed by their Creator with certain inalienable 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.’ ”

[47]

It is of no avail that they declare these principles, in one breath, when, in the next, they declare the unlimited right of the States to reduce men to bondage. That they should assert such opposite principles, only proves what unblushing hypocrites and liars they are; and that they are ready to assert any principles whatever, from the extreme of liberty, to the extreme of slavery, if they can thereby conciliate or deceive the two opposite wings of their faction, and keep them together until their object of gaining possession of the government of the country shall be attained.

We have recently been told, on high Republican authority, that slavery is a “five-headed enormity.” Well, be it so. How do the Republicans propose to combat this “five-headed enormity?” We think we have shown that they propose to combat it only by an imposture, that is at least twelve-headed. This twelve-headed imposture consists of these twelve separate impostures, to wit:—

1. The imposture of “Freedom National, and Slavery Sectional.” That is to say, national freedom outside of the nation, and sectional slavery all over the nation itself, if the separate sections (States) shall so choose.

2. The imposture of “Free Labor and Free Men.” That is to say, seeking the interests alone of the labor and the men, that are already free; and leaving the labor and the men, that are not free, to their fate.

3. The imposture of “Non-Extension of Slavery.” That is to say, extending slavery through all time, and to as many new victims as the States respectively may choose; and “non-extending” it only by not removing the slaves from one place to another; but confining them within the narrow precincts of 850,000 square miles, where it is to be presumed, they will soon die out from compression, suffocation, or some other equally probable cause.

4. The imposture of “Down with the Slave Oligarchy.” That is to say, maintaining the slaveholders’ right of property in their slaves, but depriving them of the political influence which that property naturally gives them.

[48]

5. The imposture of “The Suppression of the Slave Trade.” That is to say, the suppression of the slave trade by statutes, which slaveholding juries are expected to execute; the suppression of the slave trade, while the slave markets are kept open; the suppression of the slave trade in native Africans, while maintaining the slavery of native Americans.

6. The imposture of a party, calling itself “Republican,” and professing to be a strictly constitutional party; and yet refusing to perform the only duty which the constitution enjoins under the specific name of “Republican.”

7. The imposture of declaring that the constitution of the United States can be “the supreme law of the land,” and yet have no effect in fixing the political status of the people.

8. The imposture of “State Rights.” That is to say, the imposture of declaring that the States can reduce everybody, or anybody, to slavery, and thus deprive them of all rights under the national government; and yet the national government have no right to interfere for their protection.

9. The imposture of assuming that a government, which purports to be distinctly the government of the United States, and of no other country or people on earth, should have (as the Republicans claim) so much more political power over countries and peoples outside of the United States, than it has over those within the United States.

10. The imposture of assuming that the Republicans or any body else can make great conquests for liberty, and at the same time do nothing at all to the injury of slavery.

11. The consummate imposture of supposing that rhetoric, and fustian, and bombast, are the only weapons necessary to rid the earth of tyrants.

12. The transcendent imposture of supposing that the Republican party itself is, or ever has been, any thing else than an imposture.

We could probably find still other “heads” of this Republican imposture, if we had leisure and inclination to search for them. But, however many we might find, we should undoubtedly find them all filled with the same kind of emptiness as those we have enumerated.

[49]

But infidelity to their own convictions of the true character of the constitution of the United States, in its relation to slavery, is the crowning inconsistency, hypocrisy, and crime of large numbers, at least, of the Republican faction.

There is no reason to doubt that very large numbers of that wing of the party, which is sincerely favorable to liberty, including a due proportion of their public men, believe that the constitution of the United States is not only free itself from the stain of slavery, but that it gives liberty to all “the people of the United States,” “any thing in the constitutions or laws of the States to the contrary notwithstanding.”

Of the public men, who hold this belief, there is much evidence before the public, tending to prove—probably sufficient rationally to prove—that William H. Seward is one; that such has been his belief for many years; and that he has intended to avow it, and act upon it, so soon as he could do so with safety to his political aspirations. Nevertheless, such was the unprincipled character of the faction on whom he relied for his aggrandizement, and such the unprincipled character of the man himself (notwithstanding he has been supposed to combine more ability, courage, and integrity, than any other man of the faction) that, on the 29th of February last, he was weak and wicked enough, in view of his political exigencies, not only to ignore all constitutional opinions favorable to liberty, but virtually to ignore all the moral sentiments he had ever professed on the subject. With a deliberate heartlessness, so monstrous as to be disgusting, he treated of four millions of human beings—having the same natural rights with himself—and having also, in his own estimation (as we think) equal political rights with himself, under the constitution he had sworn to support—we say he heartlessly treated of these four millions of men, and their posterity, as so much capital—not, perhaps, the best form of capital—but whether, or not, the best form of capital, was for the owners to judge, and for experience to determine. And if, before this experiment should be closed, anybody should presume to recognize them as men, and attempt to convert them from capital into men; or recognize them as citizens of the United States, and go to [50] their rescue (as any one, on the hypothesis of their being such citizens, might legally do) such a person, said Mr. Seward, must necessarily, and may justly, be hung.

Thus this shameless man stood out, and stripped himself before the eyes of all people, and labored, in their presence, to cover himself all over with this moral and political filth, in order to deaden the hated odors of liberty, humanity, and justice, which he feared might be still clinging to him, as relics of his former professions (and principles, if he ever had any), and thereby fit himself, if possible, to become the candidate of his faction. And the infamous character of the faction itself is to be inferred from the fact, that all this self-defilement, on his part, was unsuccessful to secure for him their confidence. They feared that at least the smell of liberty might still be upon him; and, therefore, fixed their choice upon one, who, if not more clear of all real love for freedom, was at least less suspected of any such disqualification.

What we have supposed to be true of Mr. Seward, we have good reason to believe to be also true of several, perhaps many, other Republican members of congress, viz., that, believing the slaves in this country to be, in the view of the constitution of the United States, full citizens of the United States, equally with themselves, they nevertheless, for the sake of gaining power, publicly acknowledge and declare their enslavement to be constitutional, and that the general government has no authority to liberate them.

We think the friends of liberty, in every congressional district, should look sharply after their representatives on this point. We do not wish to send men to congress, who will belie the constitution, they swear to support. We do not even wish to send them there to give us essays on the moral nature of slavery. We understand that matter already. But, as John Brown would say, we want men there, who, believing the constitution gives liberty to all, will put the thing through.

We understand the reasons given, in private, by these men, why they do not declare that slavery is unconstitutional, and that the general government has power to abolish it, to be, That the people are not ready for it! That the Republicans must first get [51] possession of the government! That is to say, these men must persist in their false asseverations, that the general government has no power to abolish slavery; that they, if placed in possession of that government, never will abolish it; but will, on the contrary, sustain it in the States where it is—they must persist in these asseverations, until they get the general government into their hands; then, as they wish it to be inferred, they will avow the fraud by which they obtained their power; will take it for granted that the people are ready to be informed what the constitutional law of the country really is; and will proceed to put it into execution, by giving liberty to all!

Spirits of Hampden, and Pym, and Sidney, and Elliot; of Otis, and Jefferson, and the Adamses! Did you, in the full possession of freedom of speech and the press; with steam and electricity to carry your words to the people; with boundless wealth, the moral sentiments of the world, and the constitutional law of your countries, on your side—did you, under such circumstances as these, resist tyranny, by asserting it to be legal, and swearing that you would support it, where it prevailed? and declaring that you would only oppose its extension into new regions? Did you do all this under the pretence that the people were not ready for the truth? that you must get possession of all the high places of power, before you could do or say any thing for freedom? and that, when you should have obtained these places, you would declare the frauds and perjuries you had committed to gain them? and would then become traitors to tyranny, and faithful to freedom? Was it by such ways as these, that you prepared the hearts of the people to stand by you in the great struggles which you saw before you? Or did you not rather, in the midst of poverty; with feeble means of communication and concert; and with dungeons and scaffolds before your eyes, proclaim, with all your strength, that tyranny, in its veriest strongholds, was but an usurpation? confident in the truth, that, next to the law of nature, the constitutional law of your countries was the strongest weapon you could use in behalf of liberty? and that fraud, and falsehood, and perjury were instruments as useless and suicidal as they were base?

[52]

Tell us, also, are the men we now have among us, the Sewards, and Chases, and Sumners, and Greeleys, and Lincolns, and Hales—are these, and such men as these, your legitimate successors? If they are, why have not mankind spit upon your memories?

XXIV.

It is abundantly evident, from what has now been said, that the constitution of the United States, “the supreme law of the land,” must necessarily fix the status of every individual, within the United States, either as a free person, or a slave; and that it must do this, “any thing in the constitution or laws of any State to the contrary notwithstanding.” It is also abundantly evident that, if any person be made free by that supreme law, he is free everywhere under that law; and that, if any one be made a slave by that law, then, constitutionally speaking, he is a slave everywhere under that law; and his owner may carry him, and hold him, as property, wherever he pleases, within the United States, free of all responsibility to the constitutions or laws of the States.

It is also evident that, if the United States constitution itself makes a man slave, the general government, no more than the State governments, can give him his freedom.

The real issue, then, before the country, is, whether slavery is lawful everywhere within the United States, with no power, either in the general or State governments, to prohibit it, without an amendment to the constitution of the United States? or whether it be unlawful everywhere, within the United States, and it be the duty of both the general and State governments to prohibit it?

We entreat all, who act politically under the constitution of the United States, to keep this issue distinctly in view, and to hold all men and all parties strictly to it; and to give no vote, and no word of sympathy or support, to any man, or body of men, who either evade it, or hesitate, or equivocate about it. Above all, give no vote or support to those public men, who give their rant, [53] declamation, and pretended moral sentiments to liberty, and, at the same time, give over to slavery the constitution of the country, and their oaths to support it. These men are practically the best supporters of slavery there now are in the country. They do it a service, which no other men can. From the confidence reposed in their professions, they have power to deceive honest men as to their rights and duties under the constitution, and thus hold them back from any direct assault, political or otherwise. And this power they are exerting to their utmost for the security of slavery. The open friends of slavery have nearly or quite lost all power of this kind. They have also deprived themselves of nearly all moral sympathy and support. By their indiscreet and head-long zeal for slavery, they long ago disgusted everybody but themselves. They have now succeeded in disgusting even themselves, especially in the north. Their ranks are broken, their minds disaffected, and both their moral and political power in a great measure wasted away. Should any one of the factions, into which they are divided, succeed in filling the executive department of the government, that acquisition will give them no real power in the country. Their possession of that department, therefore, is not a thing to be dreaded. Better, far better, that the presidency should be in the hands of an open, but powerless enemy of liberty, than in those of a powerful, but false, perjured, and traitorous friend.

We, therefore, entreat that all, who give their votes at all, at the ensuing election, will give them unequivocally for freedom. It will not be necessary that they should wait for, or that there should be, any national nomination of candidates. It will be sufficient that, in each State, electoral candidates be named. If any of them should be chosen, they can give their votes (as the constitution contemplated they would give them), for the persons they shall think most worthy.

But if, as is very likely to be the result, no one of these electoral candidates should be chosen, the votes given for them will nevertheless not have been thrown away. The great object is to procure the defeat of the Republicans. If defeated on the sixth of November, the faction itself will be extinct on the seventh. Those [54] of its members who intend to support slavery, will then go over openly into its ranks; while those who intend to support liberty, will come unmistakably to her side. She will then know her friends from her foes. And thenceforth the issue will be distinctly made up, whether this be, or be not, a free country for all? And this one issue will hold its place before the country, until it shall be decided in favor of freedom.

Endnotes

*

“The House of Representatives shall be composed of members, chosen every second year by the people of the several States; and the electors in each State shall have the requisite qualifications for electors of the most numerous branch of the State legislature.”—Art. I., sec. 2.

*

If, instead of going to the rescue of a fellow-citizen, whom we see set upon by a robber, ravisher, kidnapper, or murderer, we connive at the crime, either by declaring the act legal, or encouraging the idea that it can be committed with impunity, we thereby make ourselves accomplices in the crime. By this rule, if the persons enslaved in this country are, in the view of the United States Constitution, citizens of the United States, equally with the other citizens of the United States, and we nevertheless connive at and encourage their enslavement, either by declaring it legal, or by holding out the hope that it can be done with impunity, we are, not merely in the view of the moral law, but in the view of the constitution of the United States, criminal accomplices in their enslavement.

*

This being a case, in which a State was a party, it was tried by jury in the Supreme Court of the United States. From the preliminary remarks of the Chief-Justice, it will be seen that the judges were unanimous in the opinion given. He said:

“It is fortunate on the present, as it must be on every occasion, to find the opinion of the court unanimous. We entertain no diversity of sentiment; and we have experienced no difficulty in uniting in the charge, which it is my province to deliver. . . . .

“It may not be amiss here, gentlemen, to remind you of the good old rule, that on questions of fact, it is province of the jury, on questions of law, it is the province of the court, to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law, as well as the fact, in controversy. On this, and on every other occasion, however, we have no doubt you will pay that respect which is due to the opinion of the court; for, as on the one hand, it is presumed that juries are the best judges of facts, it is, on the other hand, presumable that the court are the best judges of law. But still both objects are lawfully within your power of decision.” (State of Georgia, vs. Brailsford; III. Dallas, Rep. 1.)

This was in the year 1794.

*

This question of the power of congress to govern countries outside of the United States, has been twice before the supreme court of the United States. In both cases, although the court declared that “the possession of the power was unquestioned,” their efforts to show in what part of the constitution the power was to be found, seemed to be very unsatisfactory, even to themselves.

In the first case, the court said:—

“In the meantime, Florida continues to be a territory of the United States, governed by virtue of that clause in the constitution, which empowers congress ‘to make all needful rules and regulations respecting the territory, or other property of the United States.’

“Perhaps the power of governing a territory belonging to the United States, which has not, by becoming a State, acquired the means of self-government, may result necessarily from the facts, that it is not within the jurisdiction of any particular State, and is within the power and jurisdiction of the United States. The right to govern, may be the inevitable consequence of the right to acquire, territory. Whichever may be the source whence the power is derived, the possession of it is unquestioned.” (Am. Ins. Co. vs. Canter; I. Peters, 542.)

Here three possible sources of the power are suggested; but which one of the three is the true source, the court seem wholly unable to decide. It would seem to have been much more in keeping with judicial propriety and integrity, to have definitely determined the source of the power, before declaring that “whichever may be the source whence the power is derived, the possession of it is unquestioned.” How the court can say that “the possession of a power is unquestioned,” so long as they are unable to determine in what part of the constitution the power is to be found, is, to say the least of it, very mysterious. Nothing, evidently, short of that infallible discernment, which supreme courts assume to possess, could authorize them to affirm thus positively the existence of a power, the source of which they could not discover.

We assume that it has already been shown that the first of these suggestions, viz., that the power to govern territory, outside of the United States, is included in “the power to dispose of, and make all needful rules and regulations respecting the territory, or other property belonging to the United States,” is wholly unfounded.

The second suggestion, viz., that the power “may result necessarily from the facts that the territory is not within the jurisdiction of any particular State, and is within the power and jurisdiction of the United States,” assumes the whole point in dispute, which is—whether territory and people, outside of the United States, are “within the power and jurisdiction of the United States.”

The third suggestion, viz., that “the right to govern, may be the inevitable consequence of the right to acquire, territory,” again assumes the whole point in dispute, which is—whether the United States have the right to acquire—that is, to purchase—territory and peoples outside of the United States.

It is plainly against the law of nature, and therefore impossible, for governments to acquire any rightful ownership of wilderness lands, and withhold them from, or demand a price for them of, those persons, who wish to take actual possession of them, and cultivate them. As it is impossible for any nation to have any rightful property in wild lands, it is impossible for one nation to convey any such ownership to another. It is, therefore, impossible that the United States can “acquire”—that is, purchase—any such ownership.

It is also against nature, and therefore impossible, that any government should own its people, as property, and have the right to dispose of them, as property. It is, therefore, impossible that the United States can “acquire,” by treaty, any ownership of people outside of the United States, or consequently any right to govern them.

In the case of Dred Scott, the same question came again before the court. And the court (19 Howard, 443) cited and adopted the opinion previously given, viz., that “whichever may be the source whence the power is derived, the possession of it is unquestioned.” But they offered no new argument in its support, except the intimation (p. 447) that the power to admit new States into the Union might “authorize the acquisition of territory, not fit for admission at the time, but to be admitted as soon as its population and situation entitle it to admission.”

But there would be just as much reason in saying that, because A has the right to admit B as a partner in business, therefore he has a right to buy him, and hold him as a slave, until he is fit to be admitted as a partner.

The court confess (p. 446) that—

“There is certainly no power given by the constitution to the federal government to establish or maintain colonies, bordering on the United States, or at a distance, to be ruled and governed at its own pleasure; nor to enlarge its own territorial limits in any way, except by the admission of new States. . . . No power is given to acquire a territory to be held and governed permanently in that character.”

But they say (p. 447) that—

“It [the territory] is acquired to become a State, and not to be held as a colony, and governed by congress with absolute authority; and as the propriety of admitting a new State is committed to the sound discretion of congress, the power to acquire territory for that purpose, to be held by the United States until it is in a suitable condition to become a State, upon an equal footing with the other States, must rest upon the same discretion. It is a question for the political department of the government, and not for the judicial; and whatever the political department of the government shall recognize as within the limits of the United States, the judicial department is also bound to recognize, and to administer in it the laws of the United States,” &c. &c.

This pretence of the court, that although the United States have no power to buy territory, and govern it as a colony for ever, they nevertheless have a right to buy it and govern it as a colony, until congress, in the exercise of its discretion, shall see fit to admit it as a State, is an entire fabrication and fraud. There is nothing whatever, in the constitution, that requires congress ever to admit a territory as a State. And if congress have authority to buy territory, and govern it as a colony at all, they have a right to hold it, and govern it as a colony for ever.

The truth is, that all our constitutional law on this subject—that is to say, all the constitutional law that has been practically acted upon by congress—instead of being found in our own constitution, is found only where nearly all the rest of our constitutional law is found, viz., in the tyrannical practices of other governments; and especially in the tyrannical practices of the English Government. Because other governments usurp the ownership of wild lands, and demand a price for them, our government does the same. Because other governments have colonies, and govern them against their will, our government usurps authority to do the same. And because other nations claim to own their colonies as property, and assume to sell them as such, our government claims the right to buy any that may be in the market. When, in truth, it has no more right to buy the people of other nations, than to sell those of our own.

T.15 The Unconstitutionality of Slavery (1860).↩

Title

[15.] The Unconstitutionality of Slavery (Boston: Bela Marsh, 1860).

- also online </titles/2206>.

Text

CONTENTS OF PART FIRST.

- CHAPTER I.—WHAT IS LAW? - - - - - - page 5

- CHAPTER II.—WRITTEN CONSTITUTIONS, - - - - 15

- CHAPTER III.—THE COLONIAL CHARTERS, - - - - 21

- CHAPTER IV.—COLONIAL STATUTES, - - - - - 32

- CHAPTER V.—THE DECLARATION OF INDEPENDENCE, - 36

- CHAPTER VI.—THE STATE CONSTITUTIONS OF 1789. MEANING OF THE WORD “FREE,” } - 39

- CHAPTER VII.—THE ARTICLES OF CONFEDERATION, - 51

- CHAPTER VIII.—THE CONSTITUTION OF THE UNITED STATES, 54

- CHAPTER IX.—THE INTENTIONS OF THE CONVENTION, - 114

- CHAPTER X.—THE PRACTICE OF THE GOVERNMENT, - 123

- CHAPTER XI.—THE UNDERSTANDING OF THE PEOPLE, - 124

- CHAPTER XII.—THE STATE CONSTITUTIONS OF 1845, - 126

- CHAPTER XIII.—THE CHILDREN OF SLAVES ARE BORN FREE, 129

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☞ Appendix A. has been added to the former edition of this work; also the second note on page 264.

[5]

THE UNCONSTITUTIONALITY OF SLAVERY.

CHAPTER I.: WHAT IS LAW?

Before examining the language of the Constitution, in regard to Slavery, let us obtain a view of the principles, by virtue of which law arises out of those constitutions and compacts, by which people agree to establish government.

To do this it is necessary to define the term law. Popular opinions are very loose and indefinite, both as to the true definition of law, and also as to the principle, by virtue of which law results from the compacts or contracts of mankind with each other.

What then is Law? That law, I mean, which, and which only, judicial tribunals are morally bound, under all circumstances, to declare and sustain?

In answering this question, I shall attempt to show that law is an intelligible principle of right, necessarily resulting from the nature of man; and not an arbitrary rule, that can be established by mere will, numbers or power.

To determine whether this proposition be correct, we must look at the general signification of the term law.

The true and general meaning of it, is that natural, permanent, unalterable principle, which governs any particular thing or class of things. The principle is strictly a natural one; and the term applies to every natural principle, whether mental, moral or physical. Thus we speak of the laws of mind; meaning thereby those natural, universal and necessary principles, according to which mind acts, or by which it is governed. We speak too of the moral law; which is merely an universal principle of moral obligation, that arises out of the nature of men, and their relations to each [6] other, and to other things—and is consequently as unalterable as the nature of men. And it is solely because it is unalterable in its nature, and universal in its application, that it is denominated law. If it were changeable, partial or arbitrary, it would be no law. Thus we speak of physical laws; of the laws, for instance, that govern the solar system; of the laws of motion, the laws of gravitation, the laws of light, &c., &c.—Also the laws that govern the vegetable and animal kingdoms, in all their various departments: among which laws may be named, for example, the one that like produces like. Unless the operation of this principle were uniform, universal and necessary, it would be no law.

Law, then, applied to any object or thing whatever, signifies a natural, unalterable, universal principle, governing such object or thing. Any rule, not existing in the nature of things, or that is not permanent, universal and inflexible in its application, is no law, according to any correct definition of the term law.

What, then, is that natural, universal, impartial and inflexible principle, which, under all circumstances, necessarily fixes, determines, defines and governs the civil rights of men? Those rights of person, property, &c., which one human being has, as against other human beings?

I shall define it to be simply the rule, principle, obligation or requirement of natural justice.

This rule, principle, obligation or requirement of natural justice, has its origin in the natural rights of individuals, results necessarily from them, keeps them ever in view as its end and purpose, secures their enjoyment, and forbids their violation. It also secures all those acquisitions of property, privilege and claim, which men have a natural right to make by labor and contract.

Such is the true meaning of the term law, as applied to the civil rights of men. And I doubt if any other definition of law can be given, that will prove correct in every, or necessarily in any possible case. The very idea of law originates in men’s natural rights. There is no other standard, than natural rights, by which civil law can be measured. Law has always been the name of that rule or principle of justice, which protects those rights. Thus we speak of natural law. Natural law, in fact, constitutes the great body of the law that is professedly administered by judicial tribunals: and it always necessarily must be—for it is impossible to anticipate a thousandth part of the cases that arise, so as to enact a special law for them. Wherever the cases have [7] not been thus anticipated, the natural law prevails. We thus politically and judicially recognize the principle of law as originating in the nature and rights of men. By recognizing it as originating in the nature of men, we recognize it as a principle, that is necessarily as immutable, and as indestructible as the nature of man. We also, in the same way, recognize the impartiality and universality of its application.

If, then, law be a natural principle—one necessarily resulting from the very nature of man, and capable of being destroyed or changed only by destroying or changing the nature of man—it necessarily follows that it must be of higher and more inflexible obligation than any other rule of conduct, which the arbitrary will of any man, or combination of men, may attempt to establish. Certainly no rule can be of such high, universal and inflexible obligation, as that, which, if observed, secures the rights, the safety and liberty of all.

Natural law, then, is the paramount law. And, being the paramount law, it is necessarily the only law: for, being applicable to every possible case that can arise touching the rights of men, any other principle or rule, that should arbitrarily be applied to those rights, would necessarily conflict with it. And, as a merely arbitrary, partial and temporary rule must, of necessity, be of less obligation than a natural, permanent, equal and universal one, the arbitrary one becomes, in reality, of no obligation at all, when the two come in collision. Consequently there is, and can be, correctly speaking, no law but natural law. There is no other principle or rule, applicable to the rights of men, that is obligatory in comparison with this, in any case whatever. And this natural law is no other than that rule of natural justice, which results either directly from men’s natural rights, or from such acquisitions as they have a natural right to make, or from such contracts as they have a natural right to enter into.

Natural law recognizes the validity of all contracts which men have a natural right to make, and which justice requires to be fulfilled: such, for example, as contracts that render equivalent for equivalent, and are at the same time consistent with morality, the natural rights of men, and those rights of property, privilege, &c., which men have a natural right to acquire by labor and contract.

Natural law, therefore, inasmuch as it recognizes the natural right of men to enter into obligatory contracts, permits the formation of government, founded on contract, as all our governments [8] profess to be. But in order that the contract of government may be valid and lawful, it must purport to authorize nothing inconsistent with natural justice, and men’s natural rights. It cannot lawfully authorize government to destroy or take from men their natural rights: for natural rights are inalienable, and can no more be surrendered to government—which is but an association or individuals—than to a single individual. They are a necessary attribute of man’s nature; and he can no more part with them—to government or anybody else—than with his nature itself. But the contract of government may lawfully authorize the adoption of means—not inconsistent with natural justice—for the better protection of men’s natural rights. And this is the legitimate and true object of government. And rules and statutes, not inconsistent with natural justice and men’s natural rights, if enacted by such government, are binding, on the ground of contract, upon those who are parties to the contract, which creates the government, and authorizes it to pass rules and statutes to carry out its objects.*

But natural law tries the contract of government, and declares it lawful or unlawful, obligatory or invalid, by the same rules by which it tries all other contracts between man and man. A contract for the establishment of government, being nothing but a voluntary contract between individuals for their mutual benefit, differs, in nothing that is essential to its validity from any other contract between man and man, or between nation and nation. If two individuals enter into a contract to commit trespass, theft, robbery or murder upon a third, the contract is unlawful and void, simply because it is a contract to violate natural justice, or men’s natural rights. If two nations enter into a treaty, that they will unite in plundering, enslaving or destroying a third, the treaty is unlawful, void and of no obligation, simply because it is contrary [9] to justice and men’s natural rights. On the same principle, if the majority, however large, of the people of a country, enter into a contract of government, called a constitution, by which they agree to aid, abet or accomplish any kind of injustice, or to destroy or invade the natural rights of any person or persons whatsoever, whether such persons be parties to the compact or not, this contract of government is unlawful and void—and for the same reason that a treaty between two nations for a similar purpose, or a contract of the same nature between two individuals, is unlawful and void. Such a contract of government has no moral sanction. It confers no rightful authority upon those appointed to administer it. It confers no legal or moral rights, and imposes no legal or moral obligation upon the people who are parties to it. The only duties, which any one can owe to it, or to the government established under color of its authority, are disobedience, resistance, destruction.

Judicial tribunals, sitting under the authority of this unlawful contract or constitution, are bound, equally with other men, to declare it, and all unjust enactments passed by the government in pursuance of it, unlawful and void. These judicial tribunals cannot, by accepting office under a government, rid themselves of that paramount obligation, that all men are under, to declare, if they declare anything, that justice is law; that government can have no lawful powers, except those with which it has been invested by lawful contract; and that an unlawful contract for the establishment of government, is as unlawful and void as any other contract to do injustice.

No oaths, which judicial or other officers may take, to carry out and support an unlawful contract or constitution of government, are of any moral obligation. It is immoral to take such oaths, and it is criminal to fulfil them. They are, both in morals and law, like the oaths which individual pirates, thieves and bandits give to their confederates, as an assurance of their fidelity to the purposes for which they are associated. No man has any moral right to assume such oaths; they impose no obligation upon those who do assume them; they afford no moral justification for official acts, in themselves unjust, done in pursuance of them.

If these doctrines are correct, then those contracts of government, state and national, which we call constitutions, are void, and unlawful, so far as they purport to authorize, (if any of them do authorize,) anything in violation of natural justice, or the natural [10] rights of any man or class of men whatsoever. And all judicial tribunals are bound, by the highest obligations that can rest upon them, to declare that these contracts, in all such particulars, (if any such there be,) are void, and not law. And all agents, legislative, executive, judicial and popular, who voluntarily lend their aid to the execution of any of the unlawful purposes of the government, are as much personally guilty, according to all the moral and legal principles, by which crime, in its essential character, is measured, as though they performed the same acts independently, and of their own volition.

Such is the true character and definition of law. Yet, instead of being allowed to signify, as it in reality does, that natural, universal and inflexible principle, which has its origin in the nature of man, keeps pace everywhere with the rights of man, as their shield and protector, binds alike governments and men, weighs by the same standard the acts of communities and individuals, and is paramount in its obligation to any other requirement which can be imposed upon men—instead, I say, of the term law being allowed to signify, as it really does, this immutable and overruling principle of natural justice, it has come to be applied to mere arbitrary rules of conduct, prescribed by individuals, or combinations of individuals, self-styled governments, who have no other title to the prerogative of establishing such rules, than is given them by the possession or command of sufficient physical power to coerce submission to them.

The injustice of these rules, however palpable and atrocious it may be, has not deterred their authors from dignifying them with the name of law. And, what is much more to be deplored, such has been the superstition of the people, and such their blind veneration for physical power, that this injustice has not opened their eyes to the distinction between law and force, between the sacred requirements of natural justice, and the criminal exactions of unrestrained selfishness and power. They have thus not only suffered the name of law to be stolen, and applied to crime as a cloak to conceal its true nature, but they have rendered homage and obedience to crime, under the name of law, until the very name of law, instead of signifying, in their minds, an immutable principle of right, has come to signify little more than an arbitrary command of power, without reference to its justice or its injustice, its innocence or its criminality. And now, commands the most criminal, if christened with the name of law, obtain nearly as ready an [11] obedience, oftentimes a more ready obedience, than law and justice itself. This superstition, on the part of the people, which has thus allowed force and crime to usurp the name and occupy the throne of justice and law, is hardly paralleled in its grossness, even by that superstition, which, in darker ages of the world, has allowed falsehood, absurdity and cruelty to usurp the name and the throne of religion.

But I am aware that other definitions of law, widely different from that I have given, have been attempted—definitions too, which practically obtain, to a great extent, in our judicial tribunals, and in all the departments of government. But these other definitions are nevertheless, all, in themselves, uncertain, indefinite, mutable; and therefore incapable of being standards, by a reference to which the question of law, or no law, can be determined. Law, as defined by them, is capricious, arbitrary, unstable; is based upon no fixed principle; results from no established fact; is susceptible of only a limited, partial and arbitrary application; possesses no intrinsic authority; does not, in itself, recognize any moral principle; does not necessarily confer upon, or even acknowledge in individuals, any moral or civil rights; or impose upon them any moral obligation.

For example. One of these definitions—one that probably embraces the essence of all the rest—is this:

That “law is a rule of civil conduct, prescribed by the supreme power of a state, commanding what its subjects are to do, and prohibiting what they are to forbear.”—Noah Webster.

In this definition, hardly anything, that is essential to the idea of law, is made certain. Let us see. It says that,

“Law is a rule of civil conduct, prescribed by the supreme power of a state.”

What is the “supreme power,” that is here spoken of, as the fountain of law? Is it the supreme physical power? Or the largest concentration of physical power, whether it exist in one man or in a combination of men? Such is undoubtedly its meaning. And if such be its meaning, then the law is uncertain; for it is oftentimes uncertain where, or in what man, or body of men, in a state, the greatest amount of physical power is concentrated. Whenever a state should be divided into factions, no one having the supremacy of all the rest, law would not merely be inefficient, but the very principle of law itself would be actually extinguished. And men would have no “rule of civil conduct.” This result alone is sufficient to condemn this definition.

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Again. If physical power be the fountain of law, then law and force are synonymous terms. Or, perhaps, rather, law would be the result of a combination of will and force; of will, united with a physical power sufficient to compel obedience to it, but not necessarily having any moral character whatever.

Are we prepared to admit the principle, that there is no real distinction between law and force? If not, we must reject this definition.

It is true that law may, in many cases, depend upon force as the means of its practical efficiency. But are law and force therefore identical in their essence?

According to this definition, too, a command to do injustice, is as much law, as a command to do justice. All that is necessary, according to this definition, to make the command a law, is that it issue from a will that is supported by physical force sufficient to coerce obedience.

Again. If mere will and power are sufficient, of themselves, to establish law—legitimate law—such law as judicial tribunals are morally bound, or even have a moral right to enforce—then it follows that wherever will and power are united, and continue united until they are successful in the accomplishment of any particular object, to which they are directed, they constitute the only legitimate law of that case, and judicial tribunals can take cognizance of no other.

And it makes no difference, on this principle, whether this combination of will and power be found in a single individual, or in a community of an hundred millions of individuals.—The numbers concerned do not alter the rule—otherwise law would be the result of numbers, instead of “supreme power.” It is therefore sufficient to comply with this definition, that the power be equal to the accomplishment of the object. And the will and power of one man are therefore as competent to make the law relative to any acts which he is able to execute, as the will and power of millions of men are to make the law relative to any acts which they are able to accomplish.

On this principle, then—that mere will and power are competent to establish the law that is to govern an act, without reference to the justice or injustice of the act itself, the will and power of any single individual to commit theft, would be sufficient to make theft lawful, as lawful as is any other act of injustice, which the will and power of communities, or large bodies of men, may be [13] united to accomplish. And judicial tribunals are as much bound to recognize, as lawful, any act of injustice or crime, which the will and power of a single individual may have succeeded in accomplishing, as they are to recognize as lawful any act of injustice, which large and organized bodies of men, self-styled governments, may accomplish.

But, perhaps it will be said that the soundness of this definition depends upon the use of the word “state”—and that it therefore makes a distinction between “the supreme power of a state,” over a particular act, and the power of an individual over the same act.

But this addition of the word “state,” in reality leaves the definition just where it would have been without it. For what is “a state?” It is just what, and only what, the will and power of individuals may arbitrarily establish.

There is nothing fixed in the nature, character or boundaries of “a state.” Will and power may alter them at pleasure. The will and power of Nicholas, and that will and power which he has concentrated around, or rather within himself, establishes all Russia, both in Europe and Asia, as “a state.” By the same rule, the will and power of the owner of an acre of ground, may establish that acre as a state, and make his will and power, for the time being, supreme and lawful within it.

The will and power, also, that established “a state” yesterday, may be overcome to-day by an adverse will and power, that shall abolish that state, and incorporate it into another, over which this latter will and power shall to-day be “supreme.” And this latter will and power may also to-morrow be overcome by still another will and power mightier than they.

“A state,” then, is nothing fixed, permanent or certain in its nature. It is simply the boundaries, within which any single combination or concentration of will and power are efficient, or irresistible, for the time being.

This is the only true definition that can be given of “a state.” It is merely an arbitrary name given to the territorial limits of power. And if such be its true character, then it would follow, that the boundaries, though but two feet square, within which the will and power of a single individual are, for the time being, supreme, or irresistible, are, for all legal purposes, “a state”—and his will and power constitute, for the time being, the law within those limits; and his acts are, therefore, for the time being, [14] as necessarily lawful, without respect to their intrinsic justice or injustice, as are the acts of larger bodies of men, within those limits where their will and power are supreme and irresistible.

If, then, law really be what this definition would make it, merely “a rule of civil conduct prescribed by the supreme power of a state”—it would follow, as a necessary consequence, that law is synonymous merely with will and force, wherever they are combined and in successful operation, for the present moment.

Under this definition, law offers no permanent guaranty for the safety, liberty, rights or happiness of any one. It licenses all possible crime, violence and wrong, both by governments and individuals. The definition was obviously invented by, and is suited merely to gloss over the purposes of, arbitrary power. We are therefore compelled to reject it, and to seek another, that shall make law less capricious, less uncertain, less arbitrary, more just, more safe to the rights of all, more permanent. And if we seek another, where shall we find it, unless we adopt the one first given, viz., that law is the rule, principle, obligation or requirement of natural justice?

Adopt this definition, and law becomes simple, intelligible, scientific; always consistent with itself; always harmonizing with morals, reason and truth. Reject this definition, and law is no longer a science: but a chaos of crude, conflicting and arbitrary edicts, unknown perchance to either morals, justice, reason or truth, and fleeting and capricious as the impulses of will, interest and power.

If, then, law really be nothing other than the rule, principle obligation or requirement of natural justice, it follows that government can have no powers except such as individuals may rightfully delegate to it: that no law, inconsistent with men’s natural rights, can arise out of any contract or compact of government: that constitutional law, under any form of government, consists only of those principles of the written constitution, that are consistent with natural law, and man’s natural rights; and that any other principles, that may be expressed by the letter of any constitution, are void and not law, and all judicial tribunals are bound to declare them so.

Though this doctrine may make sad havoc with constitutions and statute books, it is nevertheless law. It fixes and determines the real rights of all men; and its demands are as imperious as any that can exist under the name of law.

[15]

It is possible, perhaps, that this doctrine would spare enough of our existing constitutions, to save our governments from the necessity of a new organization. But whatever else it might spare, one thing it would not spare. It would spare no vestige of that system of human slavery, which now claims to exist by authority of law.*

CHAPTER II.: WRITTEN CONSTITUTIONS.

Taking it for granted that it has now been shown that no rule of civil conduct, that is inconsistent with the natural rights of men, can be rightfully established by government, or consequently be made obligatory as law, either upon the people, or upon judicial tribunals—let us now proceed to test the legality of slavery by those written constitutions of government, which judicial tribunals actually recognize as authoritative.

In making this examination, however, I shall not insist upon the principle of the preceding chapter, that there can be no law [16] contrary to natural right; but shall admit, for the sake of the argument, that there may be such laws. I shall only claim that in the interpretation of all statutes and constitutions, the ordinary legal [17] rules of interpretation be observed. The most important of these rules, and the one to which it will be necessary constantly to refer, is the one that all language must be construed “strictly” in favor [18] of natural right. The rule is laid down by the Supreme Court of the United States in these words, to wit:

“Where rights are infringed, where fundamental principles are [19] overthrown, where the general system of the laws is departed from, the legislative intention must be expressed with irresistible clearness, to induce a court of justice to suppose a design to effect such objects.”*

[20]

It will probably appear from this examination of the written constitutions, that slavery neither has, nor ever had any constitutional existence in this country; that it has always been a mere abuse, sustained, in the first instance, merely by the common consent of the strongest party, without any law on the subject, and, in the second place, by a few unconstitutional enactments, made in defiance of the plainest provisions of their fundamental law.

For the more convenient consideration of this point, we will divide the constitutional history of the country into three periods; the first embracing the time from the first settlement of the country up to the Declaration of Independence; the second embracing the time from the Declaration of Independence to the adoption of the Constitution of the United States in 1789; and the third embracing all the time since the adoption of the Constitution of the United States.

Let us now consider the first period; that is, from the settlement of the country, to the Declaration of Independence.

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CHAPTER III.: THE COLONIAL CHARTERS.

When our ancestors came to this country, they brought with them the common law of England, including the writ of habeas corpus, (the essential principle of which, as will hereafter be shown, is to deny the right of property in man,) the trial by jury, and the other great principles of liberty, which prevail in England, and which have made it impossible that her soil should be trod by the foot of a slave.

These principles were incorporated into all the charters, granted to the colonies, (if all those charters were like those I have examined, and I have examined nearly all of them.)—The general provisions of those charters, as will be seen from the extracts given in the note, were, that the laws of the colonies should “not be repugnant or contrary, but, as nearly as circumstances would allow, conformable to the laws, statutes and rights of our kingdom of England.”*

[22]

Those charters were the fundamental constitutions of the colonies, with some immaterial exceptions, up to the time of the revolution; as much so as our national and state constitutions are now the fundamental laws of our governments.

The authority of these charters, during their continuance, and the general authority of the common law, prior to the revolution, have been recognized by the Supreme Court of the United States.*

[23]

No one of all these charters that I have examined—and I have examined nearly all of them—contained the least intimation that slavery had, or could have any legal existence under them. Slavery was therefore as much unconstitutional in the colonies, as it was in England.

It was decided by the Court of King’s Bench in England—Lord Mansfield being Chief Justice—before our revolution, and while the English Charters were the fundamental law of the colonies—that the principles of English liberty were so plainly incompatible with slavery, that even if a slaveholder, from another part of the world, brought his slave into England—though only for a temporary purpose, and with no intention of remaining—he nevertheless thereby gave the slave his liberty.

Previous to this decision, the privilege of bringing slaves into England, for temporary purposes, and of carrying them away, had long been tolerated.

This decision was given in the year 1772.* And for aught I see, it was equally obligatory in this country as in England, and must have freed every slave in this country, if the question had then been raised here. But the slave knew not his rights, and had no one to raise the question for him.

The fact, that slavery was tolerated in the colonies, is no evidence of its legality; for slavery was tolerated, to a certain extent, in England, (as we have already seen,) for many years previous to the decision just cited—that is, the holders of slaves from abroad were allowed to bring their slaves into England, hold them during their stay there, and carry them away when they went. But the toleration of this practice did not make it lawful, notwithstanding all customs, not palpably and grossly contrary to the principles of English liberty, have great weight, in England, in establishing law.

The fact, that England tolerated, (i. e. did not punish criminally,) the African slave-trade at that time, could not legally establish slavery in the colonies, any more than it did in England—especially in defiance of the positive requirements of the charters, that the colonial legislation should be consonant to reason, and not repugnant to the laws of England.

Besides, the mere toleration of the slave trade could not make slavery itself—the right of property in man—lawful anywhere; [24] not even on board the slave ship. Toleration of a wrong is not law. And especially the toleration of a wrong, (i. e. the bare omission to punish it criminally,) does not legalize one’s claim to property obtained by such wrong. Even if a wrong can be legalized at all, so as to enable one to acquire rights of property by such wrong, it can be done only by an explicit and positive provision.

The English statutes, on the subject of the slave trade, (so far as I have seen,) never attempted to legalize the right of property in man, in any of the thirteen North American colonies. It is doubtful whether they ever attempted to do it anywhere else. It is also doubtful whether Parliament had the power—or perhaps rather it is certain that they had not the power—to legalize it anywhere, if they had attempted to do so.* And the cautious and curious phraseology of their statutes on the subject, indicates plainly that they themselves either doubted their power to legalize it, or feared to exercise it. They have therefore chosen to connive at slavery, to insinuate, intimate, and imply their approbation of it, rather than risk an affirmative enactment declaring that one man may be the property of another. But Lord Mansfield said, in Somerset’s case, that slavery was “so odious that nothing can be suffered to support it, but positive law.” No such positive law (I presume) was ever passed by Parliament—certainly not with reference to any of these thirteen colonies.

The statute of 1788, (which I have not seen,) in regard to the slave trade, may perhaps have relieved those engaged in it, in certain cases, from their liability to be punished criminally for the act. But there is a great difference between a statute, that should merely screen a person from punishment for a crime, and one that should legalize his right to property acquired by the crime. Besides, this act was passed after the separation between America and England, and therefore could have done nothing towards legalizing slavery in the United States, even if it had legalized it in the English dominions.

The statutes of 1750, (23, George 2d, Ch. 31,) may have possibly authorized, by implication, (so far as Parliament could thus authorize,) the colonial governments, (if governments they could be called,) on the coast of Africa, to allow slavery under [25] certain circumstances, and within the “settlements” on that coast. But, if it did, it was at most a grant of a merely local authority. It gave no authority to carry slaves from the African coast. But even if it had purported distinctly to authorize the slave trade from Africa to America, and to legalize the right of property in the particular slaves thereafter brought from Africa to America, it would nevertheless have done nothing towards legalizing the right of property in the slaves that had been brought to, and born in, the colonies for an hundred and thirty years previous to the statute. Neither the statute, nor any right of property acquired under it, (in the individual slaves thereafterwards brought from Africa,) would therefore avail anything for the legality of slavery in this country now; because the descendants of those brought from Africa under the act, cannot now be distinguished from the descendants of those who had, for the hundred and thirty years previous, been held in bondage without law.

But the presumption is, that, even after this statute was passed in 1750, if the slave trader’s right of property in the slave he was bringing to America, could have been brought before an English court for adjudication, the same principles would have been held to apply to it, as would have applied to a case arising within the island of Great Britain. And it must therefore always have been held by English courts, (in consistency with the decisions in Somerset’s case,) that the slave trader had no legal ownership of his slave. And if the slave trader had no legal right of property in his slave, he could transfer no legal right of property to a purchaser in the colonies. Consequently the slavery of those that were brought into the colonies after the statute of 1750, was equally illegal with that of those who had been brought in before.*

[26]

The conclusion or the whole matter is, that until some reason appears against them, we are bound by the decision of the King’s [27] Bench in 1772, and the colonial charters. That decision declared that there was, at that time, in England, no right of property in [28] man, (notwithstanding the English government had for a long time connived at the slave trade.)—The colonial charters required [29] the legislation of the colonies to be “consonant to reason, and not repugnant or contrary, but conformable, or agreeable, as nearly as [30] circumstances would allow, to the laws, statutes and rights of the realm of England.” That decision, then, if correct, settled the [31] law both for England and the colonies. And if so, there was no constitutional slavery in the colonies up to the time of the revolution.

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CHAPTER IV.: COLONIAL STATUTES.

But the colonial legislation on the subject of slavery, was not only void as being forbidden by the colonial charters, but in many of the colonies it was void for another reason, viz., that it did not sufficiently define the persons who might be made slaves.

Slavery, if it can be legalized at all, can be legalized only by positive legislation. Natural law gives it no aid. Custom imparts to it no legal sanction. This was the doctrine of the King’s Bench in Somerset’s case, as it is the doctrine of common sense. Lord Mansfield said, “So high an act of dominion must be recognized by the law of the country where it is used. * * * The state of slavery is of such a nature, that it is incapable of being introduced on any reasons, moral or political—but only positive law, which preserves its force long after the reasons, occasion, and time itself from whence it was created, is erased from the memory. It is so odious that nothing can be suffered to support it but positive law.”

Slavery, then, being the creature of positive legislation alone, can be created only by legislation that shall so particularly describe the persons to be made slaves, that they may be distinguished from all others. If there be any doubt left by the letter of the law, as to the persons to be made slaves, the efficacy of all other slave legislation is defeated simply by that uncertainty.

In several of the colonies, including some of those where slaves were most numerous, there were either no laws at all defining the persons who might be made slaves, or the laws, which attempted to define them, were so loosely framed that it cannot now be known who are the descendants of those designated as slaves, and who of those held in slavery without any color of law. As the presumption must—under the United States constitution—and indeed under the state constitutions also—be always in favor of liberty, it would probably now be impossible for a slaveholder to prove, in one case in an hundred, that his slave was descended, (through the maternal line, according to the slave code,) from any one who was originally a slave within the description given by the statutes.

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When slavery was first introduced into the country, there were no laws at all on the subject. Men bought slaves of the slave traders, as they would have bought horses; and held them, and compelled them to labor, as they would have done horses, that is, by brute force. By common consent among the white race, this practice was tolerated without any law. At length slaves had in this way become so numerous, that some regulations became necessary, and the colonial governments began to pass statutes, which assumed the existence of slaves, although no laws defining the persons who might be made slaves, had ever been enacted. For instance, they passed statutes for the summary trial and punishment of slaves; statutes permitting the masters to chastise and baptize their slaves,* and providing that baptism should not be considered, in law, an emancipation of them. Yet all the while no act had been passed declaring who might be slaves. Possession was apparently all the evidence that public sentiment [34] demanded, of a master’s property in his slave. Under such a code, multitudes, who had either never been purchased as slaves, or who had once been emancipated, were doubtless seized and reduced to servitude by individual rapacity, without any more public cognizance of the act, than if the person so seized had been a stray sheep.

Virginia. Incredible as it may seem, slavery had existed in Virginia fifty years before even a statute was passed for the purpose of declaring who might be slaves; and then the persons were so described as to make the designation of no legal effect, at least as against Africans generally. And it was not until seventy-eight years more, (an hundred and twenty-eight years in all,) that any act was passed that would cover the case of the Africans generally, and make them slaves. Slavery was introduced in 1620, but no act was passed even purporting to declare who might be slaves, until 1670. In that year a statute was passed in these words: “That all servants, not being Christians, imported into this country by shipping, shall be slaves for their lives.”*

This word “servants” of course legally describes individuals known as such to the laws, and distinguished as such from other persons generally. But no class of Africans “imported,” were known as “servants,” as distinguished from Africans generally, or in any manner to bring them within the legal description of “servants,” as here used. In 1682 and in 1705 acts were again passed declaring “that all servants,” &c., imported, should be slaves. And it was not until 1748, after slavery had existed an hundred and twenty-eight years, that this description was changed for the following:

“That all persons, who have been or shall be imported into this colony,” &c., &c., shall be slaves.†

In 1776, the only statute in Virginia, under which the slaveholders could make any claim at all to their slaves, was passed as late as 1753, (one hundred and thirty-three years after slavery had been introduced;) all prior acts having been then repealed, without saving the rights acquired under them.‡

[35]

Even if the colonial charters had contained no express prohibition upon slave laws, it would nevertheless be absurd to pretend that the colonial legislature had power, in 1753, to look back an hundred and thirty-three years, and arbitrarily reduce to slavery all colored persons that had been imported into, or born in the colony within that time. If they could not do this, then it follows that all the colored persons in Virginia, up to 1753, (only twenty-three years before the revolution,) and all their descendants to the present time, were and are free; and they cannot now be distinguished from the descendants of those subsequently imported. Under the presumption—furnished by the constitution of the United States—that all are free, few or no exceptions could now be proved.

In North Carolina no general law at all was passed, prior to the revolution, declaring who might be slaves—(See Iredell’s statutes, revised by Martin.)

In South Carolina, the only statutes, prior to the revolution, that attempted to designate the slaves, was passed in 1740—after slavery had for a long time existed. And even this statute, in reality, defined nothing; for the whole purport of it was, to declare that all negroes, Indians, mulattoes and mestizoes, except those who were then free, should be slaves. Inasmuch as no prior statute had ever been passed, declaring who should be slaves, all were legally free; and therefore all came within the exception in favor of free persons.*

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The same law, in nearly the same words, was passed in Georgia, in 1770.

These were the only general statutes, under which slaves were held in those four States, (Virginia, North Carolina, South Carolina and Georgia,) at the time of the revolution. They would all, for the reasons given, have amounted to nothing, as a foundation for the slavery now existing in those states, even if they had not been specially prohibited by their charters.

CHAPTER V.: THE DECLARATION OF INDEPENDENCE.

Admitting, for the sake of the argument, that prior to the revolution, slavery had a constitutional existence, (so far as it is possible that crime can have such an existence,) was it not abolished by the declaration of independence?

The declaration was certainly the constitutional law of this country for certain purposes. For example, it absolved the people from their allegiance to the English crown. It would have been so declared by the judicial tribunals of this country, if an American, during the revolutionary war, or since, had been tried for treason to the crown. If, then, the declaration were the constitutional law of the country for that purpose, was it not also constitutional law for the purpose of recognizing and establishing, as law, the natural and inalienable right of individuals to life, liberty, and the pursuit of happiness? The lawfulness of the act of absolving [37] themselves from their allegiance to the crown, was avowed by the people of the country—and that too in the same instrument that declared the absolution—to rest entirely upon, and to be only a consequence of the natural right of all men to life, liberty, and the pursuit of happiness. If, then, the act of absolution was lawful, does it not necessarily follow that the principles that legalized the act, were also law? And if the country ratified the act of absolution, did they not also necessarily ratify and acknowledge the principles which they declared legalized the act?

It is sufficient for our purpose, if it be admitted that this principle was the law of the country at that particular time, (1776)—even though it had continued to be the law for only a year, or even a day. For if it were the law of the country even for a day, it freed every slave in the country—(if there were, as we say there were not, any legal slaves then in the country.) And the burden would then be upon the slaveholder to show that slavery had since been constitutionally established. And to show this, he must show an express constitutional designation of the particular individuals, who have since been made slaves. Without such particular designation of the individuals to be made slaves, (and not even the present constitutions of the slave States make any such designation,) all constitutional provisions, purporting to authorize slavery, are indefinite, and uncertain in their application, and for that reason void.

But again. The people of this country—in the very instrument by which they first announced their independent political existence, and first asserted their right to establish governments of their own—declared that the natural and inalienable right of all men to life, liberty, and the pursuit of happiness, was a “self-evident truth.”

Now, all “self-evident truths,” except such as may be explicitly, or by necessary implication, denied, (and no government has a right to deny any of them,) enter into, are taken for granted by, und constitute an essential part of all constitutions, compacts, and systems of government whatsoever. Otherwise it would be impossible for any systematic government to be established; for it must obviously be impossible to make an actual enumeration of all the “self-evident truths,” that are to be taken into account in the administration of such a government. This is more especially true of governments founded, like ours, upon contract. It is clearly impossible, in a contract of government, to enumerate all [38] the “self-evident truths” which must be acted upon in the administration of law. And therefore they are all taken for granted unless particular ones be plainly denied.

This principle, that all “self-evident truths,” though not enumerated, make a part of all laws and contracts, unless clearly denied, is not only indispensable to the very existence of civil society, but it is even indispensable to the administration of justice in every individual case or suit, that may arise, out of contract or otherwise, between individuals. It would be impossible for individuals to make contracts at all, if it were necessary for them to enumerate all the “self-evident truths,” that might have a bearing upon their construction before a judicial tribunal. All such truths are therefore taken for granted. And it is the same in all compacts of government, unless particular truths are plainly denied. And governments, no more than individuals, have a right to deny them in any case. To deny, in any case, that “self-evident truths” are a part of the law, is equivalent to asserting that “self-evident falsehood” is law.

If, then, it be a “self-evident truth,” that all men have a natural and inalienable right to life, liberty, and the pursuit of happiness, that truth constitutes a part of all our laws and all our constitutions, unless it have been unequivocally and authoritatively denied.

It will hereafter be shown that this “self-evident truth” has never been denied by the people of this country, in their fundamental constitution, or in any other explicit or authoritative manner. On the contrary, it has been reiterated, by them, annually, daily and hourly, for the last sixty-nine years, in almost every possible way, and in the most solemn possible manner. On the 4th of July, ’76, they collectively asserted it, as their justification and authority for an act the most momentous and responsible of any in the history of the country. And this assertion has never been retracted by us as a people. We have virtually reasserted the same truth in nearly every state constitution since adopted. We have virtually reasserted it in the national constitution. It is a truth that lives on the tongues and in the hearts of all. It is true we have, in our practice, been so unjust as to withhold the benefits of this truth from a certain class of our fellow-men. But even in this respect, this truth has but shared the common fate of other truths. They are generally allowed but a partial application. Still, this truth itself, as a truth, has never been denied by us, as a people, in any authentic form, or otherwise than impliedly [39] by our practice in particular cases. If it have, say when and where. If it have not, it is still law; and courts are bound to administer it, as law, impartially to all.

Our courts would want no other authority than this truth, thus acknowledged, for setting at liberty any individual, other than one having negro blood, whom our governments, state or national, should assume to authorize another individual to enslave. Why then, do they not apply the same law in behalf of the African? Certainly not because it is not as much the law of his case, as of others. But it is simply because they will not. It is because the courts are parties to an understanding, prevailing among the white race, but expressed in no authentic constitutional form, that the negro may be deprived of his rights at the pleasure of avarice and power. And they carry out this unexpressed understanding in defiance of, and suffer it to prevail over, all our constitutional principles of government—all our authentic, avowed, open and fundamental law.

CHAPTER VI.: THE STATE CONSTITUTIONS OF 1789.

Of all the state constitutions, that were in force at the adoption of the constitution of the United States, in 1789, not one of them established, or recognized slavery.

All those parts of the state constitutions, (i. e. of the old thirteen states,) that recognize and attempt to sanction slavery, have been inserted, by amendments, since the adoption of the constitution of the United States.

All the states, except Rhode Island and Connecticut, formed constitutions prior to 1789. Those two states went on, beyond this period, under their old charters.*

[40]

The eleven constitutions formed, were all democratic in their general character. The most of them eminently so. They generally recognized, in some form or other, the natural rights of men, as one of the fundamental principles of the government. Several of them asserted these rights in the most emphatic and authoritative manner. Most or all of them had also specific provisions incompatible with slavery. Not one of them had any specific recognition of the existence of slavery. Not one of them granted any specific authority for its continuance.

The only provisions or words in any of them, that could be claimed by anybody as recognitions of slavery, are the following, viz.:

1. The use of the words “our negroes” in the preamble to the constitution of Virginia.

2. The mention of “slaves” in the preamble to the constitution of Pennsylvania.

3. The provisions, in some of the constitutions, for continuing in force the laws that had previously been “in force” in the colonies, except when altered by, or incompatible with the new constitution.

4. The use, in several of the constitutions, of the words “free” and “freemen.”

As each of these terms and clauses may be claimed by some persons as recognitions of slavery, they are worthy of particular notice.

1. The preamble to the frame of government of the constitution of Virginia speaks of negroes in this connexion, to wit: It charges George the Third, among other things, with “prompting our negroes to rise in arms among us, those very negroes, whom, by an inhuman use of his negative, he hath refused us permission to exclude by law.”

Here is no assertion that these “negroes” were slaves; but only that they were a class of people whom the Virginians did not wish to have in the state, in any capacity—whom they wished “to exclude by law.” The language, considered as legal language, no more implies that they were slaves, than the charge of having prompted “our women, children, farmers, mechanics, or our people with red hair, or our people with blue eyes, or our Dutchmen, or our Irishmen to rise in arms among us,” would have implied that those portions of the people of Virginia were slaves. And especially when it is considered that slavery had had no prior [41] legal existence, this reference to “negroes” authorizes no legal inference whatever in regard to slavery.

The rest of the Virginia constitution is eminently democratic. The bill of rights declares “that all men are by nature equally free and independent, and have certain inherent rights,” * * “namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.”

2. The preamble to the Pennsylvania constitution used the word “slaves” in this connexion. It recited that the king of Great Britain had employed against the inhabitants of that commonwealth, “foreign mercenaries, savages and slaves.”

This is no acknowledgment that they themselves had any slaves of their own; much less that they were going to continue their slavery; for the constitution contained provisions plainly incompatible with that. Such, for instance, is the following, which constitutes the first article of the “Declaration of Rights of the Inhabitants,” (i. e. of all the inhabitants) “of the state of Pennsylvania.”

“1. That all men are born equally free and independent, and have certain natural, inherent and inalienable rights, among which are, the enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety.”

The 46th section of the frame of government is in these words.

“The Declaration of Rights is hereby declared to be a part of the constitution of this commonwealth, and ought never to be violated on any pretence whatever.”

Slavery was clearly impossible under these two constitutional provisions, to say nothing of others.

3. Several of the constitutions provide that all the laws of the colonies, previously “in force” should continue in force until repealed, unless repugnant to some of the principles of the constitutions themselves.

Maryland, New York, New Jersey, South Carolina, and perhaps one or two others had provisions of this character. North Carolina had none, Georgia none, Virginia none. The slave laws of these three latter states, then, necessarily fell to the ground on this change of government.

Maryland, New York, New Jersey and South Carolina had acts upon their statute books, assuming the existence of slavery, and [42] pretending to legislate in regard to it; and it may perhaps be argued that those laws were continued in force under the provision referred to. But those acts do not come within the above description of “laws in force”—and for this reason, viz., the acts were originally unconstitutional and void, as being against the charters, under which they were passed; and therefore never had been legally “in force,” however they might have been actually carried into execution as a matter of might, or of pretended law, by the white race.

This objection applies to the slave acts of all the colonies None of them could be continued under this provision.—None of them, legally speaking, were “laws in force.”

But in particular states there were still other reasons against the colonial slave acts being valid under the new constitutions. For instance: South Carolina had no statute (as has before been mentioned) that designated her slaves with such particularity as to distinguish them from free persons; and for that reason none of her slave statutes were legally “in force.”

New Jersey also was in the same situation. She had slave statutes; but none designating the slaves so as to distinguish them from the rest of her population. She had also one or more specific provisions in her constitution incompatible with slavery, to wit: “That the common law of England * * * * * shall remain in force, until altered by a future law of the legislature; such parts only as are repugnant to the rights and privileges contained in this charter.” (Sec. 22.)

Maryland had also, in her new constitution, a specific provision incompatible with the acts on her colonial statute book in regard to slavery, to wit:

“Sec. 3. That the inhabitants”—mark the word, for it includes all the inhabitants—“that the inhabitants of Maryland are entitled to the common law of England, and the trial by jury, according to the course of that law,” &c.

This guaranty, of “the common law of England” to all “the inhabitants of Maryland,” without discrimination, is incompatible with any slave acts that existed on the statute book; and the latter would therefore have become void under the constitution, even if they had not been previously void under the colonial charter.

4. Several of these state constitutions have used the words “free” and “freemen.”

For instance: That of South Carolina provided, (Sec. 13.) [43] that the electors of that state should be “free white men.” That of Georgia (Art. 11,) and that of North Carolina (Art. 40,) use the term “free citizen.” That of Pennsylvania (Sec. 42,) has the term “free denizen.”

These four instances are the only ones I have found in all the eleven constitutions, where any class of persons are designated by the term “free.” And it will be seen hereafter, from the connexion and manner in which the word is used, in these four cases, that it implies no recognition of slavery.

Several of the constitutions, to wit, those of Georgia, South Carolina, North Carolina, Maryland, Delaware, Pennsylvania, New York—but not Virginia, New Jersey, Massachusetts or New Hampshire—repeatedly use the word “freeman” or “freemen,” when describing the electors, or other members of the state.

The only questions that can arise from the use of these words “free” and “freeman,” are these, viz.: Are they used as the correlatives, or opposites of slaves? Or are they used in that political sense, in which they are used in the common law of England, and in which they had been used in the colonial charters, viz., to describe those persons possessed of the privilege of citizenship, or some corporate franchise, as distinguished from aliens, and those not enjoying franchises, although free from personal slavery?

If it be answered, that they are used in the sense first mentioned, to wit, as the correlatives or opposites of slavery—then it would be argued that they involved a recognition, at least, of the existence of slavery.

But this argument—whatever it might be worth to support an implied admission of the actual existence of slavery—would be entirely insufficient to support an implied admission either of its legal, or its continued existence. Slavery is so entirely contrary to natural right; so entirely destitute of authority from natural law; so palpably inconsistent with all the legitimate objects of government, that nothing but express and explicit provision can be recognized, in law, as giving it any sanction. No hints, insinuations, or unnecessary implications can give any ground for so glaring a departure from, and violation of all the other, the general and the legitimate principles of the government. If, then, it were admitted that the words “free” and “freemen” were used as the correlatives of slaves, still, of themselves, the words would give no direct or sufficient authority for laws establishing or continuing slavery. To call one man free, gives no legal authority for making [44] another man a slave. And if, as in the case of these constitutions, no express authority for slavery were given, slavery would be as much unconstitutional as though these words had not been used. The use of these words in that sense, in a constitution, under which all persons are presumed to be free, would involve no absurdity, although it might be gratuitous and unnecessary.

It is a rule of law, in the construction of all statutes, contracts and legal instruments whatsoever—that is, those which courts design, not to invalidate, but to enforce—that where words are susceptible of two meanings, one consistent, and the other inconsistent, with liberty, justice and right, that sense is always to be adopted, which is consistent with right, unless there be something in other parts of the instrument sufficient to prove that the other is the true meaning. In the case of no one of all these early state constitutions, is there anything in the other parts of them, to show that these words “free” and “freemen” are used as the correlatives of slavery. The rule of law, therefore, is imperative, that they must be regarded in the sense consistent with liberty and right.

If this rule, that requires courts to give an innocent construction to all words that are susceptible of it, were not imperative, courts might, at their own pleasure, pervert the honest meaning of the most honest statutes and contracts, into something dishonest, for there are almost always words used in the most honest legislation, and in the most honest contracts, that, by implication or otherwise, are capable of conveying more than one meaning, and even a dishonest meaning. If courts could lawfully depart from the rule, that requires them to attribute an honest meaning to all language that is susceptible of such a meaning, it would be nearly impossible to frame either a statute or a contract, which the judiciary might not lawfully pervert to some purpose of injustice. There would obviously be no security for the honest administration of any honest law or contract whatsoever.

This rule applies as well to constitutions as to contracts and statutes; for constitutions are but contracts between the people, whereby they grant authority to, and establish law for the government.

What other meaning, then, than as correlatives of slavery, are the words “free” and “freemen” susceptible of, as they are used in the early state constitutions?

Among the definitions given by Noah Webster are these:

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“Freeman. One who enjoys, or is entitled to a franchise or peculiar privilege; as the freemen of a city or state.”

“Free. invested with franchises; enjoying certain immunities; with of—as a man free of the city of London.”

“Possessing without vassalage, or slavish conditions; as a man free of his farm.”

In England, and in the English law throughout, as it existed before and since the emigration of our ancestors to this country, the words “free” and “freemen” were political terms in the most common use; and employed to designate persons enjoying some franchise or privilege, from the most important one of general citizenship in the nation, to the most insignificant one in any incorporated city, town or company. For instance: A man was said to be a “free British subject”—meaning thereby that he was a naturalized or native born citizen of the British government, as distinguished from an alien, or person neither naturalized nor native born.

Again. A man was said to be “free of a particular trade in the city of London”—meaning thereby, that by the bye-laws of the city of London, he was permitted to follow that trade—a privilege which others could not have without having served an apprenticeship in the city, or having purchased the privilege of the city government.

The terms “free” and “freemen” were used with reference to a great variety of privileges, which, in England, were granted to one man, and not to another. Thus members of incorporated companies were called “freemen of the company,” or “free members of the company;” and were said to be “free of the said company.” The citizens of an incorporated city were called “the freemen of the city,” as “freemen of the city of London.”

In Jacobs’ Law Dictionary the following definitions, among others, are given of the word “freeman.”

“Freeman—liber homo.” * * “In the distinction of a freeman from a vassal under the feudal policy, liber homo was commonly opposed to vassus, or vassalus; the former denoting an allodial proprietor; the latter one who held of a superior.”

“The title of a freeman is also given to any one admitted to the freedom of a corporate town, or of any other corporate body, consisting, among other members, of those called freemen.”

“There are three ways to be a freeman of London; by servitude of an apprenticeship; by birthright, as being the son of a [46] freeman; and by redemption, i. e. by purchase, under an order of the court of aldermen.”

“The customs of the city of London shall be tried by the certificate of the Mayor and Aldermen, * * * as the custom of distributing the effects of freemen deceased: of enrolling apprentices, or that he who is free of one trade may use another.”

“Elections of aldermen and common-councilmen are to be by freemen householders.”

“An agreement on marriage, that the husband shall take up the freedom of London, binds the distribution of the effects.”

The foregoing and other illustrations of the use of the words “free” and “freemen,” may be found in Jacob’s Law Dictionary, under the head of Freeman, London, &c.

And this use of these words has been common in the English laws for centuries. The term “freeman” is used in Magna Charta, (1215). The English statutes abound with the terms, in reference to almost every franchise or peculiar privilege, from the highest to the lowest, known to the English laws. It would be perfectly proper, and in consonance with the legal meaning and common understanding of the term, to say of Victoria, that “she is free of the throne of England,” and of a cobbler, that he “is free of his trade in the city of London.”

But the more common and important signification of the words is to designate the citizens, native or naturalized, and those specially entitled, as a matter of political and acknowledged right, to participate in, or be protected by the government, as distinguished from aliens, or persons attainted, or deprived of their political privileges as members of the state. Thus they use the term “free British subject”—“freeman of the realm,” &c. In short, the terms, when used in political papers, have a meaning very nearly, if not entirely synonymous, with that which we, in this country, now give to the word citizen.

But throughout the English law, and among all the variety of ways, in which the words “free” and “freemen” are used, as legal terms, they are never used as the correlatives, or opposites of slaves or slavery—and for the reason that they have in England no such persons or institutions, known to their laws, as slaves or slavery. The use of the words “free” and “freemen,” therefore, do not in England at all imply the existence of slaves or slavery.

This use of the words “free” and “freemen,” which is common to the English law, was introduced into this country at its first settlement, [47] in all, or very nearly all the colonial charters, patents, &c., and continued in use, in this sense, until the time of the revolution; and, of course, until the adoption of the first state constitutions.*

The persons and companies, to whom the colonial charters were granted, and those who were afterwards to be admitted as their associates, were described as “freemen of said colony,” “freemen of said province,” “freemen of said company,” “freemen of the said company and body politick,” &c. (See charter of Rhode Island.)

Many, if not all the charters had a provision similar in substance to the following in the charter to Rhode Island, viz.:

“That all and every the subjects of us, our heirs and successors,” (i. e. of the king of England granting the charter,) “which are already planted and settled within our said colony of Providence Plantations, or which shall hereafter go to inhabit within the said colony, and all and every of their children which have been born there, or which shall happen hereafter to be born there, or on the sea going thither, or returning from thence, shall have and enjoy all liberties and immunities of free and natural subjects, within any of the dominions of us, our heirs and successors, to all intents, constructions and purposes whatsoever, as if they and every of them were born within the realm of England.”

The following enactment of William Penn, as proprietary and Governor of the Province of Pennsylvania and its territories, illustrates one of the common uses of the word “freeman,” as known to the English law, and as used in this country prior to the revolution—that is, as distinguishing a native born citizen, and one capable of holding real estate, &c., from a foreigner, not naturalized, and on that account subject to certain disabilities, such as being incompetent to hold real estate.

“And forasmuch as it is apparent that the just encouragement of the inhabitants of the province, and territories thereunto belonging, is likely to be an effectual way for the improvement thereof; and since some of the people that live therein and are likely to come thereunto, are foreigners, and so not freemen, according to the acceptation of the laws of England, the consequences of which may prove very detrimental to them in their estates and traffic, [48] and so injurious to the prosperity of this province and territories thereof. Be it enacted, by the proprietary and governor of the province and counties aforesaid, by and with the advice and consent of the deputies of the freemen thereof, in assembly met, That all persons who are strangers and foreigners, that do now inhabit this province and counties aforesaid, that hold land in fee in the same, according to the law of a freeman, and who shall solemnly promise, within three months after the publication thereof, in their respective county courts where they live, upon record, faith and allegiance to the king of England and his heirs and successors, and fidelity and lawful obedience to the said William Penn, proprietary and governor of the said province and territories, and his heirs and assigns, according to the king’s letters patents and deed aforesaid, shall be held and reputed freemen of the province and counties aforesaid, in as ample and full a manner as any person residing therein. And it is hereby further enacted, by the authority aforesaid, That when at any time any person, that is a foreigner, shall make his request to the proprietary and governor of this province and territories thereof, for the aforesaid freedom, the said person shall be admitted on the conditions herein expressed, paying at his admission twenty shillings sterling, and no more, anything in this law, or any other law, act, or thing in this province, to the contrary in any wise notwithstanding.”

“Given at Chester,” &c., “under the hand and broad seal of William Penn, proprietary and governor of this province and territories thereunto belonging, in the second year of his government, by the king’s authority.

W. Penn.”*

Up to the time of our revolution, the only meaning which the words “free” and “freemen” had, in the English law, in the charters granted to the colonies, and in the important documents of a political character, when used to designate one person as distinguished from another, was to designate a person enjoying some franchise or privilege, as distinguished from aliens or persons not enjoying a similar franchise. They were never used to designate a free person as distinguished from a slave—for the very sufficient reason that all these fundamental laws presumed that there were no slaves.

Was such the meaning of the words “free” and “freemen,” as used in the constitutions adopted prior to 1789, in the States of Georgia, North and South Carolina, Maryland, Delaware and New York?

The legal rule of interpretation before mentioned, viz., that an innocent meaning must be given to all words that are susceptible [49] of it—would compel us to give the words this meaning, instead of a meaning merely correlative with slavery, even if we had no other ground than the rule alone, for so doing. But we have other grounds. For instance:—Several of these constitutions have themselves explicitly given to the words this meaning. While not one of them has given them a meaning correlative with slaves, inasmuch as none of them purport either to establish, authorize, or even to know of the existence of slavery.

The constitution of Georgia (adopted in 1777) evidently uses the word “free” in this sense, in the following article:

“Art. 11. No person shall be entitled to more than one vote, which shall be given in the county where such person resides, except as before excepted; nor shall any person who holds any title of nobility, be entitled to a vote, or be capable of serving as a representative, or hold any post of honor, profit or trust, in this State, while such person claims his title of nobility; but if the person shall give up such distinction, in the manner as may be directed by any future legislature, then, and in such case, he shall be entitled to a vote, and represent, as before directed, and enjoy all the other benefits of a free citizen.”

The constitution of North Carolina, (adopted in 1776,) used the word in a similar sense, as follows:

“40. That every foreigner, who comes to settle in this State, having first taken an oath of allegiance to the same, may purchase, or by other just means acquire, hold, and transfer land, or other real estate, and after one year’s residence be deemed a free citizen.”

This constitution also repeatedly uses the word “freeman;” meaning thereby “a free citizen,” as thus defined.

The constitution of Pennsylvania, (adopted in 1776,) uses the word in the same sense:

“Sec. 42. Every foreigner, of good character, who comes to settle in this State, having first taken an oath or affirmation of allegiance to the same, may purchase, or by other just means acquire, hold and transfer land or other real estate; and after one year’s residence, shall be deemed a free denizen thereof, and entitled to all the rights of a natural born subject of this state, except that he shall not be capable of being elected a representative until after two years’ residence.”

The constitution of New York, (adopted in 1777,) uses the word in the same manner:

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“Sec. 6. That every male inhabitant of full age, who has personally resided in one of the counties of this State for six months, immediately preceding the day of election, shall at such election be entitled to vote for representatives of the said county in assembly, if during the time aforesaid he shall have been a freeholder, possessing a freehold of the value of twenty pounds, within the said county, or have rented a tenement therein of the yearly value of forty shillings, and been rated and actually paid taxes to the State. Provided always, That every person who now is a freeman of the city of Albany, or who was made a freeman of the city of New York, on or before the fourteenth day of October, in the year of our Lord one thousand seven hundred and seventy-five, and shall be actually and usually resident in the said cities respectively, shall be entitled to vote for representatives in assembly within his place of residence.”

The constitution of South Carolina, (formed in 1778,) uses the word “free” in a sense which may, at first thought, be supposed to be different from that in which it is used in the preceding cases:

Sec. 13. The qualification of electors shall be that “every free white man, and no other person,” &c., “shall be deemed a person qualified to vote for, and shall be capable of being elected a representative.”

It may be supposed that here the word “free” is used as the correlative of slavery; that it presumes the “whites” to be “free;” and that it therefore implies that other persons than “white” may be slaves. Not so. No other parts of the constitution authorize such an inference; and the implication from the words themselves clearly is, that some “white” persons might not be “free.” The distinction implied is between those “white” persons that were “free,” and those that were not “free.” If this were not the distinction intended, and if all “white” persons were “free,” it would have been sufficient to have designated the electors simply as “white” persons, instead of designating them as both “free” and “white.” If, therefore, it were admitted that the word “free,” in this instance, were used as the correlative of slaves, the implication would be that some “white” persons were, or might be slaves. There is, therefore, no alternative but to give the word “free,” in this instance, the same meaning that it has in the constitutions of Georgia, North Carolina and Pennsylvania.

In 1704 South Carolina passed an act entitled, “An act for making aliens free of this part of the Province.” This statute [51] remained in force until 1784, when it was repealed by an act entitled “An act to confer the right of citizenship on aliens.”*

One more example of this use of the word “freeman.” The constitution of Connecticut, adopted as late as 1818, has this provision:

“Art. 6, Sec. 1. All persons who have been, or shall hereafter, previous to the ratification of this constitution, be admitted freemen, according to the existing laws of this State, shall be electors.”

Surely no other proof can be necessary of the meaning of the words “free” and “freeman,” as used in the constitutions existing in 1789; or that the use of those words furnish no implication in support of either the existence, or the constitutionality of slavery, prior to the adoption of the constitution of the United States in that year.

I have found, in none of the State constitutions before mentioned, (existing in 1789,) any other evidence or intimation of the existence of slavery, than that already commented upon and refuted. And if there be no other, then it is clear that slavery had no legal existence under them. And there was consequently no constitutional slavery in the country up to the adoption of the constitution of the United States.

CHAPTER VII.: THE ARTICLES OF CONFEDERATION.

The Articles of Confederation, (formed in 1778,) contained no recognition of slavery. The only words in them, that could be claimed by anybody as recognizing slavery, are the following, in Art. 4, Sec. 1.

“The better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this Union, the free inhabitants of each of these States, paupers, vagabonds and fugitives from justice excepted, shall be entitled to all the privileges and immunities of free citizens in the several States; and the people of each State shall have free ingress and regress to and from any other State, and shall enjoy therein all the privileges of [52] trade and commerce, subject to the same duties impositions and restrictions, as the inhabitants thereof respectively.”

There are several reasons why this provision contains no legal recognition of slavery.

1. The true meaning of the word “free,” as used in the English law, in the colonial charters, and in the State constitutions up to this time, when applied to persons, was to describe citizens, or persons possessed of franchises, as distinguished from aliens or persons not possessed of the same franchises. Usage, then, would give this meaning to the word “free” in this section.

2. The rules of law require that an innocent meaning should be given to all words that will bear an innocent meaning.

3. The Confederation was a league between States in their corporate capacity; and not, like the constitution, a government established by the people in their individual character. The Confederation, then, being a league between states or corporations, as such, of course recognized nothing in the character of the State governments except what their corporate charters or State constitutions authorized. And as none of the State constitutions of the day recognized slavery, the confederation of the State governments could not of course recognize it. Certainly none of its language can, consistently with legal rules, have such a meaning given to it, when it is susceptible of another that perfectly accords with the sense in which it is used in the constitutions of the States, that were parties to the league.

4. No other meaning can be given to the word “free” in this case, without making the sentence an absurd, or, at least, a foolish and inconsistent one. For instance,—The word “free” is joined to the word “citizen.” What reason could there be in applying the term “free” to the word “citizen,” if the word “free” were used as the correlative of slavery? Such an use of the word would imply that some of the “citizens” were, or might be slaves—which would be an absurdity. But used in the other sense, it implies only that some citizens had franchises not enjoyed by others; such, perhaps, as the right of suffrage, and the right of being elected to office; which franchises were only enjoyed by a part of the “citizens.” All who were born of English parents, for instance, were “citizens,” and entitled to the protection of the government, and freedom of trade and occupation, &c., &c., and in these respects were distinguished from aliens. Yet a property qualification was necessary, in some, if not all the States, to entitle [53] even such to the franchises of suffrage, and of eligibility to office.

The terms “free inhabitants” and “people” were probably used as synonymous either with “free citizens,” or with “citizens” not “free”—that is, not possessing the franchises of suffrage and eligibility to office.

Mr. Madison, in the 42d No. of the Federalist, in commenting upon the power given to the general government by the new constitution, of naturalizing aliens, refers to this clause in the Articles of Confederation; and takes it for granted that the word “free” was used in that political sense, in which I have supposed it to be used—that is, as distinguishing “citizens” and the “inhabitants” or “people” proper, from aliens and persons not allowed the franchises enjoyed by the “inhabitants” and “people” of the States. Even the privilege of residence he assumes to be a franchise entitling one to the denomination of “free.”

He says: “The dissimilarity in the rules of naturalization,” (i. e. in the rules established by the separate States, for under the confederation each State established its own rules of naturalization,) “has long been remarked as a fault in our system, and as laying a foundation for intricate and delicate questions. In the fourth article of confederation, it is declared, ‘that the free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all the privileges and immunities of free citizens in the several States; and the people of each State shall, in every other, enjoy all the privileges of trade and commerce,’ &c. There is a confusion of language here, which is remarkable. Why the terms free inhabitants are used in one part of the article, free citizens in another, and people in another; or what was meant by superadding to ‘all privileges and immunities of free citizens,’ ‘all the privileges of trade and commerce,’ cannot easily be determined. It seems to be a construction scarcely avoidable, however, that those who come under the denomination of free inhabitants of a State, although not citizens of such State, are entitled, in every other State, to all the privileges of free citizens of the latter; that is to greater privileges than they may be entitled to in their own State; so that it may be in the power of a particular State, or rather every State is laid under the necessity, not only to confer the rights of citizenship in other States upon any whom it may admit to such rights within itself, but upon any whom it may allow to become inhabitants within its jurisdiction. But were an exposition of the term ‘inhabitant’ to be admitted, which would confine the stipulated privileges to citizens alone, the difficulty is diminished only, not removed. The very improper power would still be retained by each State, of naturalizing aliens in every [54] other State. In one State, residence for a short time confers all the rights of citizenship; in another, qualifications of greater importance are required. An alien, therefore, legally incapacitated for certain rights in the latter, may, by previous residence only in the former, elude his incapacity, and thus the law of one State be preposterously rendered paramount to the laws of another, within the jurisdiction of the other.

“We owe it to mere casualty, that very serious embarrassments on this subject have been hitherto escaped. By the laws of several States, certain descriptions of aliens, who had rendered themselves obnoxious, were laid under interdicts inconsistent, not only with the rights of citizenship, but with the privileges of residence. What would have been the consequence, if such persons, by residence, or otherwise, had acquired the character of citizens under the laws of another State, and then asserted their rights as such, both to residence and citizenship, within the State proscribing them? Whatever the legal consequences might have been, other consequences would probably have resulted of too serious a nature, not to be provided against. The new constitution has, accordingly, with great propriety, made provision against them, and all others proceeding from the defect of the confederation on this head, by authorizing the general government to establish an uniform rule of naturalization throughout the United States.”

Throughout this whole quotation Mr. Madison obviously takes it for granted that the word “free” is used in the articles of confederation, as the correlative of aliens. And in this respect he no doubt correctly represents the meaning then given to the word by the people of the United States. And in the closing sentence of the quotation, he virtually asserts that such is the meaning of the word “free” in “the new constitution.”

CHAPTER VIII.: THE CONSTITUTION OF THE UNITED STATES.

We come now to the period commencing with the adoption of the constitution of the United States.

We have already seen that slavery had not been authorized or established by any of the fundamental constitutions or charters that had existed previous to this time; that it had always been a mere abuse sustained by the common consent of the strongest party, in defiance of the avowed constitutional principles of their [55] governments. And the question now is, whether it was constitutionally established, authorized or sanctioned by the constitution of the United States?

It is perfectly clear, in the first place, that the constitution of the United States did not, of itself, create or establish slavery as a new institution; or even give any authority to the state governments to establish it as a new institution.—The greatest sticklers for slavery do not claim this. The most they claim is, that it recognized it as an institution already legally existing, under the authority of the State governments; and that it virtually guarantied to the States the right of continuing it in existence during their pleasure. And this is really the only question arising out of the constitution of the United States on this subject, viz., whether it did thus recognize and sanction slavery as an existing institution?

This question is, in reality, answered in the negative by what has already been shown; for if slavery had no constitutional existence, under the State constitutions, prior to the adoption of the constitution of the United States, then it is absolutely certain that the constitution of the United States did not recognize it as a constitutional institution; for it cannot, of course, be pretended that the United States constitution recognized, as constitutional, any State institution that did not constitutionally exist.

Even if the constitution of the United States had intended to recognize slavery, as a constitutional State institution, such intended recognition would have failed of effect, and been legally void, because slavery then had no constitutional existence to be recognized.

Suppose, for an illustration of this principle, that the constitution of the United States had, by implication, plainly taken it for granted that the State legislatures had power—derived from the State constitutions—to order arbitrarily that infant children, or that men without the charge of crime, should be maimed—deprived, for instance, of a hand, a foot, or an eye. This intended recognition, on the part of the constitution of the United States, of the legality of such a practice, would obviously have failed of all legal effect—would have been mere surplusage—if it should appear, from an examination of the State constitutions themselves, that they had really conferred no such power upon the legislatures. And this principle applies with the same force to laws that would arbitrarily make men or children slaves, as to laws that should arbitrarily order them to be maimed or murdered.

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We might here safely rest the whole question—for no one, as has already been said, pretends that the constitution of the United States, by its own authority, created or authorized slavery as a new institution; but only that it intended to recognize it as one already established by authority of the State constitutions. This intended recognition—if there were any such—being founded on an error as to what the State constitutions really did authorize, necessarily falls to the ground, a defunct intention.

We make a stand, then, at this point, and insist that the main question—the only material question—is already decided against slavery; and that it is of no consequence what recognition or sanction the constitution of the United States may have intended to extend to it.

The constitution of the United States, at its adoption, certainly took effect upon, and made citizens of all “the people of the United States,” who were not slaves under the State constitutions. No one can deny a proposition so self-evident as that. If, then, the State constitutions, then existing, authorized no slavery at all, the constitution of the United States took effect upon, and made citizens of all “the people of the United States,” without discrimination. And if all “the people of the United States” were made citizens of the United States, by the United States constitution, at its adoption, it was then forever too late for the State governments to reduce any of them to slavery. They were thenceforth citizens of a higher government, under a constitution that was “the supreme law of the land,” “anything in the constitution or laws of the States to the contrary notwithstanding.” If the State governments could enslave citizens of the United States, the State constitutions, and not the constitution of the United States, would be the “supreme law of the land”—for no higher act of supremacy could be exercised by one government over another, than that of taking the citizens of the latter out of the protection of their government, and reducing them to slavery.

SECONDLY.

Although we might stop—we yet do not choose to stop—at the point last suggested. We will now go further, and attempt to show, specifically from its provisions, that the constitution of the United States, not only does not recognize or sanction slavery, as a legal institution, but that, on the contrary, it presumes all men [57] to be free; that it positively denies the right of property in man; and that it, of itself, makes it impossible for slavery to have a legal existence in any of the United States.

In the first place—although the assertion is constantly made, and rarely denied, yet it is palpably a mere begging of the whole question in favor of slavery, to say that the constitution intended to sanction it; for if it intended to sanction it, it did thereby necessarily sanction it, (that is, if slavery then had any constitutional existence to be sanctioned.) The intentions of the constitution are the only means whereby it sanctions anything. And its intentions necessarily sanction everything to which they apply, and which, in the nature of things, they are competent to sanction. To say, therefore, that the constitution intended to sanction slavery, is the same as to say that it did sanction it; which is begging the whole question, and substituting mere assertion for proof.

Why, then, do not men say distinctly, that the constitution did sanction slavery, instead of saying that it intended to sanction it? We are not accustomed to use the word “intention,” when speaking of the other grants and sanctions of the constitution. We do not say, for example, that the constitution intended to authorize congress “to coin money,” but that it did authorize them to coin it. Nor do we say that it intended to authorize them “to declare war;” but that it did authorize them to declare it. It would be silly and childish to say merely that it intended to authorize them “to coin money,” and “to declare war,” when the language authorizing them to do so, is full, explicit and positive. Why, then, in the case of slavery, do men say merely that the constitution intended to sanction it, instead of saying distinctly, as we do in the other cases, that it did sanction it? The reason is obvious. If they were to say unequivocally that it did sanction it, they would lay themselves under the necessity of pointing to the words that sanction it; and they are aware that the words alone of the constitution do not come up to that point. They, therefore, assert simply that the constitution intended to sanction it; and they then attempt to support the assertion by quoting certain words and phrases, which they say are capable of covering, or rather of concealing such an intention; and then by the aid of exterior, circumstantial and historical evidence, they attempt to enforce upon the mind the conclusion that, as matter of fact, such was the intention [58] of those who drafted the constitution; and thence they finally infer that such was the intention of the constitution itself.

The error and fraud of this whole procedure—and it is one purely of error and fraud—consists in this—that it artfully substitutes the supposed intentions of those who drafted the constitution, for the intentions of the constitution itself; and, secondly, it personifies the constitution as a crafty individual; capable of both open and secret intentions; capable of legally participating in, and giving effect to all the subtleties and double dealings of knavish men; and as actually intending to secure slavery, while openly professing to “secure and establish liberty and justice.” It personifies the constitution as an individual capable of having private and criminal intentions, which it dare not distinctly avow, but only darkly hint at, by the use of words of an indefinite, uncertain and double meaning, whose application is to be gathered from external circumstances.

The falsehood of all these imaginings is apparent, the moment it is considered that the constitution is not a person, of whom an “intention,” not legally expressed, can be asserted; that it has none of the various and selfish passions and motives of action, which sometimes prompt men to the practice of duplicity and disguise; that it is merely a written legal instrument; that, as such, it must have a fixed, and not a double meaning; that it is made up entirely of intelligible words; and that it has, and can have, no soul, no “intentions,” no motives, no being, no personality, except what those words alone express or imply. Its “intentions” are nothing more nor less than the legal meaning of its words. Its intentions are no guide to its legal meaning—as the advocates of slavery all assume; but its legal meaning is the sole guide to its intentions. This distinction is all important to be observed; for if we can gratuitously assume the intentions of a legal instrument to be what we may wish them to be, and can then strain or pervert the ordinary meaning of its words, in order to make them utter those intentions, we can make anything we choose of any legal instrument whatever. The legal meaning of the words of an instrument is, therefore, necessarily our only guide to its intentions.

In ascertaining the legal meaning of the words of the constitution, these rules of law, (the reasons of which will be more fully explained hereafter,) are vital to be borne constantly in mind, viz.: 1st, that no intention, in violation of natural justice and natural right, (like that to sanction slavery,) can be ascribed to the constitution, [59] unless that intention be expressed in terms that are legally competent to express such an intention; and, 2d, that no terms, except those that are plenary, express, explicit, distinct, unequivocal, and to which no other meaning can be given, are legally competent to authorize or sanction anything contrary to natural right. The rule of law is materially different as to the terms necessary to legalize and sanction anything contrary to natural right, and those necessary to legalize things that are consistent with natural right. The latter may be sanctioned by natural implication and inference; the former only by inevitable implication, or by language that is full, definite, express, explicit, unequivocal, and whose unavoidable import is to sanction the specific wrong intended.

To assert, therefore, that the constitution intended to sanction slavery, is, in reality, equivalent to asserting that the necessary meaning, the unavoidable import of the words alone of the constitution, come fully up to the point of a clear, definite, distinct, express, explicit, unequivocal, necessary and peremptory sanction of the specific thing, human slavery, property in man. If the necessary import of its words alone do but fall an iota short of this point, the instrument gives, and, legally speaking, intended to give, no legal sanction to slavery. Now, who can, in good faith, say that the words alone of the constitution come up to this point? No one, who knows anything of law, and the meaning of words. Not even the name of the thing, alleged to be sanctioned, is given. The constitution itself contains no designation, description, or necessary admission of the existence of such a thing as slavery, servitude, or the right of property in man. We are obliged to go out of the instrument, and grope among the records of oppression lawlessness and crime—records unmentioned, and of course unsanctioned by the constitution—to find the thing, to which it is said that the words of the constitution apply. And when we have found this thing, which the constitution dare not name, we find that the constitution has sanctioned it (if at all) only by enigmatical words, by unnecessary implication and inference, by innuendo and double entendre, and under a name that entirely fails of describing the thing. Everybody must admit that the constitution itself contains no language, from which alone any court, that were either strangers to the prior existence of slavery, or that did not assume its prior existence to be legal, could legally decide that the constitution sanctioned it. And this is the true test for determining whether the constitution does, or does not, sanction slavery, viz. [60] whether a court of law, strangers to the prior existence of slavery or not assuming its prior existence to be legal—looking only at the naked language of the instrument—could, consistently with legal rules, judicially determine that it sanctioned slavery. Every lawyer, who at all deserves that name, knows that the claim for slavery could stand no such test. The fact is palpable, that the constitution contains no such legal sanction; that it is only by unnecessary implication and inference, by innuendo and double-entendre, by the aid of exterior evidence, the assumption of the prior legality of slavery, and the gratuitous imputation of criminal intentions that are not avowed in legal terms, that any sanction of slavery, (as a legal institution,) can be extorted from it.

But legal rules of interpretation entirely forbid and disallow all such implications, inferences, innuendos and double-entendre, all aid of exterior evidence, all assumptions of the prior legality of slavery, and all gratuitous imputations of criminal unexpressed intentions; and consequently compel us to come back to the letter of the instrument, and find there a distinct, clear, necessary, peremptory sanction for slavery, or to surrender the point.

To the unprofessional reader these rules of interpretation will appear stringent, and perhaps unreasonable and unsound. For his benefit, therefore, the reasons on which they are founded, will be given. And he is requested to fix both the reasons and the rules fully in his mind, inasmuch as the whole legal meaning of the constitution, in regard to slavery, may perhaps be found to turn upon the construction which these rules fix upon its language.

But before giving the reasons of this rule, let us offer a few remarks in regard to legal rules of interpretation in general. Many persons appear to have the idea that these rules have no foundation in reason, justice or necessity; that they are little else than whimsical and absurd conceits, arbitrarily adopted by the courts. No idea can be more erroneous than this. The rules are absolutely indispensable to the administration of the justice arising out of any class of legal instruments whatever—whether the instruments be simple contracts between man and man, or statutes enacted by legislatures, or fundamental compacts or constitutions of government agreed upon by the people at large. In regard to all these instruments, the law fixes, and necessarily must fix their meaning; and for the obvious reason, that otherwise their meaning could not be fixed at all. The parties to the simplest contract may disagree, or pretend to disagree as to its meaning, and of course as to their respective [61] rights under it. The different members of a legislative body, who vote for a particular statute, may have different intentions in voting for it, and may therefore differ, or pretend to differ, as to its meaning. The people of a nation may establish a compact of government. The motives of one portion may be to establish liberty, equality and justice; and they may think, or pretend to think, that the words used in the instrument convey that idea. The motives of another portion may be to establish the slavery or subordination of one part of the people, and the superiority or arbitrary power of the other part; and they may think, or pretend to think, that the language agreed upon by the whole authorizes such a government. In all these cases, unless there were some rules of law, applicable alike to all instruments, and competent to settle their meaning, their meaning could not be settled; and individuals would of necessity lose their rights under them. The law, therefore, fixes their meaning; and the rules by which it does so, are founded in the same justice, reason, necessity and truth, as are other legal principles, and are for that reason as inflexible as any other legal principles whatever. They are also simple, intelligible, natural, obvious. Everybody are presumed to know them, as they are presumed to know any other legal principles. No one is allowed to plead ignorance of them, any more than of any other principle of law. All persons and people are presumed to have framed their contracts, statutes and constitutions with reference to them. And if they have not done so—if they have said black when they meant white, and one thing when they meant another, they must abide the consequences. The law will presume that they meant what they said. No one, in a court of justice, can claim any rights founded on a construction different from that which these rules would give to the contract, statute, or constitution, under which he claims. The judiciary cannot depart from these rules, for two reasons. First, because the rules embody in themselves principles of justice, reason and truth; and are therefore as necessarily law as any other principles of justice, reason and truth; and, secondly, because if they could lawfully depart from them in one case, they might in another, at their own caprice. Courts could thus at pleasure become despotic; all certainty as to the legal meaning of instruments would be destroyed; and the administration of justice, according to the true meaning of contracts, statutes and constitutions, would be rendered impossible.

What, then, are some of these rules of interpretation?

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One of them, (as has been before stated,) is, that where words are susceptible of two meanings, one consistent, and the other inconsistent, with justice and natural right, that meaning, and only that meaning, which is consistent with right, shall be attributed to them—unless other parts of the instrument overrule that interpretation.

Another rule, (if indeed it be not the same,) is, that no language except that which is peremptory, and no implication, except one that is inevitable, shall be held to authorize or sanction anything contrary to natural right.

Another rule is, that no extraneous or historical evidence shall be admitted to fix upon a statute an unjust or immoral meaning, when the words themselves of the act are susceptible of an innocent one.

One of the reasons of these stringent and inflexible rules, doubtless is, that judges have always known, that, in point of fact, natural justice was itself law, and that nothing inconsistent with it could be made law, even by the most explicit and peremptory language that legislatures could employ. But judges have always, in this country and in England, been dependent upon the executive and the legislature for their appointments and salaries, and been amenable to the legislature by impeachment. And as the executive and legislature have always enacted more or less statutes, and had more or less purposes to accomplish, that were inconsistent with natural right, judges have seen that it would be impossible for them to retain their offices, and at the same time maintain the integrity of the law against the will of those in whose power they were. It is natural also that the executive should appoint, and that the legislature should approve the appointment of no one for the office of judge, whose integrity they should suppose would stand in the way of their purposes. The consequence has been that all judges, (probably without exception,) though they have not dared deny, have yet in practice yielded the vital principle of law; and have succumbed to the arbitrary mandates of the other departments of the government, so far as to carry out their enactments, though inconsistent with natural right. But, as if sensible of the degradation and criminality of so doing, they have made a stand at the first point at which they could make it, without bringing themselves in direct collision with those on whom they were dependent. And that point is, that they will administer, as law, no statute, that is contrary to natural right, unless its language [63] be so explicit and peremptory, that there is no way of evading its authority, but by flatly denying the authority of those who enacted it. They (the court) will themselves add nothing to the language of the statute, to help out its supposed meaning. They will imply nothing, infer nothing, and assume nothing, except what is inevitable; they will not go out of the letter of the statute in search of any historical evidence as to the meaning of the legislature, to enable them to effectuate any unjust intentions not fully expressed by the statute itself. Wherever a statute is supposed to have in view the accomplishment of any unjust end, they will apply the most stringent principles of construction to prevent that object being effected. They will not go a hair’s breadth beyond the literal or inevitable import of the words of the statute, even though they should be conscious, all the while, that the real intentions of the makers of it would be entirely defeated by their refusal. The rule (as has been already stated) is laid down by the Supreme Court of the United States in these words:

“Where rights are infringed, where fundamental principles are overthrown, where the general system of the laws is departed from, the legislative intention must be expressed with irresistible clearness, to induce a court of justice to suppose a design to effect such objects.”—(United States vs. Fisher et al., 2 Cranch, 390.)*

Such has become the settled doctrine of courts. And although it does not come up to the true standard of law, yet it is good in itself, so far as it goes, and ought to be unflinchingly adhered to, not merely for its own sake, but also as a scaffolding, from which to erect that higher standard of law, to wit, that no language or authority whatever can legalize anything inconsistent with natural justice.†

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Another reason for the rules before given, against all constructions, implications and inferences—except inevitable ones—in favor of injustice, is, that but for them we should have no guaranty that our honest contracts, or honest laws would be honestly administered by the judiciary. It would be nearly or quite impossible for men, in framing their contracts or laws, to use language so as to exclude every possible implication in favor of wrong, if courts were allowed to resort to such implications. The law therefore excludes them; that is, the ends of justice—the security of men’s rights under their honest contracts, and under honest legislative enactments—make it imperative upon courts of justice to ascribe an innocent and honest meaning to all language that will possibly bear an innocent and honest meaning. If courts of justice could depart from this rule for the purpose of upholding what was contrary to natural right, and should employ their ingenuity in spying out some implied or inferred authority, for sanctioning what was in itself dishonest or unjust, when such was not the necessary meaning of the language used, there could be no security whatever for the honest administration of honest laws, or the honest fulfilment of men’s honest contracts. Nearly all language, on the meaning of which courts adjudicate, would be liable, at the caprice of the court, to be perverted from the furtherance of honest, to the support of dishonest purposes. Judges could construe statutes and contracts in favor of justice or injustice, as their own pleasure might dictate.

Another reason of the rules, is, that as governments have, and can have no legitimate objects or powers opposed to justice and natural right, it would be treason to all the legitimate purposes of government, for the judiciary to give any other than an honest and innocent meaning to any language, that would bear such a construction.

The same reasons that forbid the allowance of any unnecessary implication or inference in favor of a wrong, in the construction of a statute, forbids also the introduction of any extraneous or historical evidence to prove that the intentions of the legislature were to sanction or authorize a wrong.

The same rules of construction, that apply to statutes, apply also to all those private contracts between man and man, which courts actually enforce. But as it is both the right and the duty of courts to invalidate altogether such private contracts as are inconsistent with justice, they will admit evidence exterior to their words, if offered by a defendant for the purpose of invalidating [65] them. At the same time, a plaintiff, or party that wishes to set up a contract, or that claims its fulfilment, will not be allowed to offer any evidence exterior to its words, to prove that the contract is contrary to justice—because, if his evidence were admitted, it would not make his unjust claim a legal one; but only invalidate it altogether. But as courts do not claim the right of invalidating statutes and constitutions, they will not admit evidence, exterior to their language, to give them such a meaning, that they ought to be invalidated.

I think no one—no lawyer, certainly—will now deny that it is a legal rule of interpretation—that must be applied to all statutes, and also to all private contracts that are to be enforced—that an innocent meaning, and nothing beyond an innocent meaning, must be given to all language that will possibly bear such a meaning. All will probably admit that the rule, as laid down by the Supreme Court of the United States, is correct, to wit, that “where rights are infringed, where fundamental principles are overthrown, where the general system of the law is departed from, the legislative intention must be expressed with irresistible clearness, to induce a court of justice to suppose a design to effect such objects.”

But perhaps it will be said that these rules, which apply to all statutes, and to all private contracts that are to be enforced, do not apply to the constitution. And why do they not? No reason whatever can be given. A constitution is nothing but a contract, entered into by the mass of the people, instead of a few individuals. This contract of the people at large becomes a law unto the judiciary that administer it, just as private contracts, (so far as they are consistent with natural right,) are laws unto the tribunals that adjudicate upon them. All the essential principles that enter into the question of obligation, in the case of a private contract, or a legislative enactment, enter equally into the question of the obligation of a contract agreed to by the whole mass of the people. This is too self-evident to need illustration.

Besides, is it not as important to the safety and rights of all interested, that a constitution or compact of government, established by a whole people, should be so construed as to promote the ends of justice, as it is that a private contract or a legislative enactment should be thus construed? Is it not as necessary that some check should be imposed upon the judiciary to prevent them from perverting, at pleasure, the whole purpose and character of [66] the government, as it is that they should be restrained from perverting the meaning of a private contract, or a legislative enactment? Obviously written compacts of government could not be upheld for a day, if it were understood by the mass of the people that the judiciary were at liberty to interpret them according to their own pleasure, instead of their being restrained by such rules as have now been laid down.

Let us now look at some of the provisions of the constitution, and see what crimes might be held to be authorized by them, if their meaning were not to be ascertained and restricted by such rules of interpretation as apply to all other legal instruments.

The second amendment to the constitution declares that “the right of the people to keep and bear arms shall not be infringed.”

This right “to keep and bear arms,” implies the right to use them—as much as a provision securing to the people the right to buy and keep food, would imply their right also to eat it. But this implied right to use arms, is only a right to use them in a manner consistent with natural rights—as, for example, in defence of life, liberty, chastity, &c. Here is an innocent and just meaning, of which the words are susceptible; and such is therefore the extent of their legal meaning. If the courts could go beyond the innocent and necessary meaning of the words, and imply or infer from them an authority for anything contrary to natural right, they could imply a constitutional authority in the people to use arms, not merely for the just and innocent purposes of defence, but also for the criminal purposes of aggression—for purposes of murder, robbery, or any other acts of wrong to which arms are capable of being applied. The mere verbal implication would as much authorize the people to use arms for unjust, as for just, purposes. But the legal implication gives only an authority for their innocent use. And why? Simply because justice is the end of all law—the legitimate end of all compacts of government. It is itself law; and there is no right or power among men to destroy its obligation.

Take another case. The constitution declares that “Congress shall have power to regulate commerce with foreign nations, and among the several States, and with the Indian tribes.”

This power has been held by the Supreme Court to be an exclusive one in the general government—and one that cannot be controlled by the States. Yet it gives Congress no constitutional authority to legalize any commerce inconsistent with natural [67] justice between man and man; although the mere verbal import of the words, if stretched to their utmost tension in favor of the wrong, would authorize Congress to legalize a commerce in poisons and deadly weapons, for the express purpose of having them used in a manner inconsistent with natural right—as for the purposes of murder.

At natural law, and on principles of natural right, a person. who should sell to another a weapon or a poison, knowing that it would, or intending that it should be used for the purpose of murder, would be legally an accessary to the murder that should be committed with it. And if the grant to Congress of a “power to regulate commerce,” can be stretched beyond the innocent meaning of the words—beyond the power of regulating and authorizing a commerce that is consistent with natural justice—and be made to cover everything, intrinsically criminal, that can be perpetrated under the name of commerce—then Congress have the authority of the constitution for granting to individuals the liberty of bringing weapons and poisons from “foreign nations” into this, and from one State into another, and selling them openly for the express purposes of murder, without any liability to legal restraint or punishment.

Can any stronger cases than these be required to prove the necessity, the soundness, and the inflexibility of that rule of law, which requires the judiciary to ascribe an innocent meaning to all language that will possibly bear an innocent meaning? and to ascribe only an innocent meaning to language whose mere verbal import might be susceptible of both an innocent and criminal meaning? If this rule of interpretation could be departed from, there is hardly a power granted to Congress, that might not lawfully be perverted into an authority for legalizing crimes of the highest grade.

In the light of these principles, then, let us examine those clauses of the constitution, that are relied on as recognizing and sanctioning slavery. They are but three in number.

The one most frequently quoted is the third clause of Art. 4. Sec. 2, in these words:

“No person, held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor; but shall be delivered up on claim of the party to whom such service or labor may be due.”

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There are several reasons why this clause renders no sanction to slavery.

1. It must be construed, if possible, as sanctioning nothing contrary to natural right.

If there be any “service or labor” whatever, to which any “persons” whatever may be “held,” consistently with natural right, and which any person may, consistently with natural right, “claim” as his “due” of another, such “service or labor,” and only such, is recognized and sanctioned by this provision.

It needs no argument to determine whether the “service or labor,” that is exacted of a slave, is such as can be “claimed,” consistently with natural right, as being “due” from him to his master. And if it cannot be, some other “service or labor” must, if possible, be found for this clause to apply to.

The proper definition of the word “service,” in this case, obviously is, the labor of a servant. And we find, that at and before the adoption of the constitution, the persons recognized by the State laws as “servants,” constituted a numerous class. The statute books of the States abounded with statutes in regard to “servants.” Many seem to have been indented as servants by the public authorities, on account of their being supposed incompetent, by reason of youth and poverty, to provide for themselves. Many were doubtless indented as apprentices by their parents and guardians, as now. The English laws recognized a class of servants—and many persons were brought here from England, in that character, and retained that character afterward. Many indented or contracted themselves as servants for the payment of their passage money to this country. In these various ways, the class of persons, recognized by the statute books of the States as “servants,” was very numerous; and formed a prominent subject of legislation. Indeed, no other evidence of their number is necessary than the single fact, that “persons bound to service for a term of years,” were specially noticed by the constitution of the United States, (Art. 1, Sec. 2,) which requires that they be counted as units in making up the basis of representation. There is, therefore, not the slightest apology for pretending that there was not a sufficient class for the words “service or labor” to refer to, without supposing the existence of slaves.*

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2. “Held to service or labor,” is no legal description of slavery. Slavery is property in man. It is not necessarily attended with either “service or labor.” A very considerable portion of the slaves are either too young, too old, too sick, or too refractory to render “service or labor.” As a matter of fact, slaves, who are able to labor, may, in general, be compelled by their masters to do so. Yet labor is not an essential or necessary condition of slavery. The essence of slavery consists in a person’s being owned as property—without any reference to the circumstances of his being compelled to labor, or of his being permitted to live in idleness, or of his being too young, or too old, or too sick to labor.

If “service or labor” were either a test, or a necessary attendant of slavery, that test would of itself abolish slavery; because all slaves, before they can render “service or labor,” must have passed through the period of infancy, when they could render neither service nor labor, and when, therefore, according to this test, they were free. And if they were free in infancy, they could not be subsequently enslaved.

3. “Held to service or labor in one State, under the laws thereof.”

The “laws” take no note of the fact whether a slave “labors,” or not. They recognize no obligation, on his part, to labor. They will enforce no “claim” of a master, upon his slave, for “service or labor.” If the slave refuse to labor, the law will not interfere to compel him. The law simply recognizes the master’s right of property in the slave—just as it recognizes his right of property in a horse. Having done that, it leaves the master to compel the slave, if he please, and if he can—as he would compel a horse—to labor. If the master do not please, or be not able, to compel the slave to labor, the law takes no more cognizance of the case than it does of the conduct of a refractory horse. [70] In short, it recognizes no obligation, on the part of the slave, to labor, if he can avoid doing so. It recognizes no “claim,” on the part of the master, upon his slave, for “services or labor,” as “due” from the latter to the former.

4. Neither “service” nor “labor” is necessarily slavery; and not being necessarily slavery, the words cannot, in this case, be strained beyond their necessary meaning, to make them sanction a wrong. The law will not allow words to be strained a hair’s breadth beyond their necessary meaning, to make them authorize a wrong. The stretching, if there be any, must always be towards the right. The words “service or labor” do not necessarily, nor in their common acceptation, so much as suggest the idea of slavery—that is, they do not suggest the idea of the laborer or servant being the property of the person for whom he labors. An indented apprentice serves and labors for another. He is “held” to do so, under a contract, and for a consideration, that are recognized, by the laws, as legitimate, and consistent with natural right. Yet he is not owned as property. A condemned criminal is “held to labor”—yet he is not owned as property. The law allows no such straining of the meaning of words towards the wrong, as that which would convert the words “service or labor” (of men) into property in man—and thus make a man, who serves or labors for another, the property of that other.

5. “No person held to service or labor, in one State, under the laws thereof.”

The “laws,” here mentioned, and impliedly sanctioned, are, of course, only constitutional laws—laws, that are consistent, both with the constitution of the State, and the constitution of the United States. None others are “laws,” correctly speaking, however they may attempt to “hold persons to service or labor,” or however they may have the forms of laws on the statute books.

This word “laws,” therefore, being a material word, leaves the whole question just where it found it—for it certainly does not, of itself—nor indeed does any other part of the clause—say that an act of a legislature, declaring one man to be the property of another, is a “law” within the meaning of the constitution. As far as the word “laws” says anything on the subject, it says that such acts are not laws—for such acts are clearly inconsistent with natural law—and it yet remains to be shown that they are consistent with any constitution whatever, state or national.

The burden of proof, then, still rests upon the advocates of [71] slavery, to show that an act of a State legislature, declaring one man to be the property of another, is a “law,” within the meaning of this clause. To assert simply that it is, without proving it to be so, is a mere begging of the question—for that is the very point in dispute.

The question, therefore, of the constitutionality of the slave acts must first be determined, before it can be decided that they are “laws” within the meaning of the constitution. That is, they must be shown to be consistent with the constitution, before they can be said to be sanctioned as “laws” by the constitution. Can any proposition be plainer than this? And yet the reverse must be assumed, in this case, by the advocates of slavery.

The simple fact, that an act purports to “hold persons to service or labor,” clearly cannot, of itself, make the act constitutional. If it could, any act, purporting to hold “persons to service or labor,” would necessarily be constitutional, without any regard to the “persons” so held, or the conditions on which they were held. It would be constitutional, solely because it purported to hold persons to service or labor. If this were the true doctrine, any of us, without respect of persons, might be held to service or labor, at the pleasure of the legislature. And then, if “service or labor” mean slavery, it would follow that any of us, without discrimination, might be made slaves. And thus the result would be, that the acts of a legislature would be constitutional, solely because they made slaves of the people. Certainly this would be a new test of the constitutionality of laws.

All the arguments in favor of slavery, that have heretofore been drawn from this clause of the constitution, have been founded on the assumption, that if an act of a legislature did but purport to “hold persons to service or labor”—no matter how, on what conditions, or for what cause—that fact alone was sufficient to make the act constitutional. The entire sum of the argument, in favor of slavery, is but this, viz., the constitution recognizes the constitutionality of “laws” that “hold persons to service or labor,”—slave acts “hold persons to service or labor,”—therefore slave acts must be constitutional. This profound syllogism is the great pillar of slavery in this country. It has, (if we are to judge by results,) withstood the scrutiny of all the legal acumen of this nation for fifty years and more. If it should continue to withstand it for as many years as it has already done, it will then be time to propound the following, to wit: The State constitutions recognize the [72] right of men to acquire property; theft, robbery, and murder are among the modes in which property may be acquired; therefore theft, robbery, and murder are recognized by these constitutions as lawful.

No doubt the clause contemplates that there may be constitutional “laws,” under which persons may be “held to service or labor.” But it does not follow, therefore, that every act, that purports to hold “persons to service or labor,” is constitutional.

We are obliged, then, to determine whether a statute be constitutional, before we can determine whether the “service or labor” required by it, is sanctioned by the constitution as being lawfully required. The simple fact, that the statute would “hold persons to service or labor,” is, of itself, no evidence, either for or against its constitutionality. Whether it be or be not constitutional, may depend upon a variety of contingencies—such as the kind of service or labor required, and the conditions on which it requires it. Any service or labor, that is inconsistent with the duties which the constitution requires of the people, is of course not sanctioned by this clause of the constitution as being lawfully required. Neither, of course, is the requirement of service or labor, on any conditions, that are inconsistent with any rights that are secured to the people by the constitution, sanctioned by the constitution as lawful. Slave laws, then, can obviously be held to be sanctioned by this clause of the constitution, only by gratuitously assuming, 1st, that the constitution neither confers any rights, nor imposes any duties upon the people of the United States, inconsistent with their being made slaves; and, 2d, that it sanctions the general principle of holding “persons to service or labor” arbitrarily, without contract, without compensation, and without the charge of crime. If this be really the kind of constitution that has been in force since 1789, it is somewhat wonderful that there are so few slaves in the country. On the other hand, if the constitution be not of this kind, it is equally wonderful that we have any slaves at all—for the instrument offers no ground for saying that a colored man may be made a slave, and a white man not.

Again. Slave acts were not “laws” according to any State constitution that was in existence at the time the constitution of the United States was adopted. And if they were not “laws” a that time, they have not been made so since.

6. The constitution itself, (Art. 1, Sec. 2,) in fixing the basis of representation, has plainly denied that those described in Art 4 [73] as “persons held to service or labor,” are slaves,—for it declares that “persons bound to service for a term of years” shall be “included” in the “number of free persons.” There is no legal difference between being “bound to service,” and being “held to service or labor.” The addition, in the one instance, of the words “for a term of years,” does not alter the case, for it does not appear that, in the other, they are “held to service or labor” beyond a fixed term—and, in the absence of evidence from the constitution itself, the presumption must be that they are not—because such a presumption saves the necessity of going out of the constitution to find the persons intended, and it is also more consistent with the prevalent municipal, and with natural law.

And it makes no difference to this result, whether the word “free,” in the first article, be used in the political sense common at that day, or as the correlative of slavery. In either case, the persons described as “free,” could not be made slaves.

7. The words “service or labor” cannot be made to include slavery, unless by reversing the legal principle, that the greater includes the less, and holding that the less includes the greater; that the innocent includes the criminal; that a sanction of what is right, includes a sanction of what is wrong.

Another clause relied on as a recognition of the constitutionality of slavery, is the following, (Art. 1, Sec. 2:)

“Representatives and direct taxes shall be apportioned among the several States, which may be included within this Union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other persons.”

The argument claimed from this clause, in support of slavery, rests entirely upon the word “free,” and the words “all other persons.” Or rather, it rests entirely upon the meaning of the word “free,” for the application of the words “all other persons” depends upon the meaning given to the word “free.” The slave argument assumes, gratuitously, that the word “free” is used as the correlative of slavery, and thence it infers that the words “all other persons,” mean slaves.

It is obvious that the word “free” affords no argument for slavery, unless a meaning correlative with slavery be arbitrarily given to it, for the very purpose of making the constitution sanction or recognize slavery. Now it is very clear that no such [74] meaning can be given to the word, for such a purpose. The ordinary meaning of a word cannot be thus arbitrarily changed, for the sake of sanctioning a wrong. A choice of meaning would be perfectly allowable, and even obligatory, if made for the purpose of avoiding any such sanction; but it is entirely inadmissible for the purpose of giving it. The legal rules of interpretation, heretofore laid down, imperatively require this preference of the right, over the wrong, in all cases where a word is susceptible of different meanings.

The English law had for centuries used the word “free” as describing persons possessing citizenship, or some other franchise or peculiar privilege—as distinguished from aliens, and persons not possessed of such franchise or privilege. This law, and this use of the word “free,” as has already been shown, (Ch. 6,) had been adopted in this country from its first settlement. The colonial charters all (probably without an exception) recognized it. The colonial legislation generally, if not universally, recognized it. The State constitutions, in existence at the time the constitution of the United States was formed and adopted, used the word in this sense, and no other. The Articles of Confederation—the then existing national compact of union—used the word in this sense and no other. The sense is an appropriate one in itself; the most appropriate to, and consistent with, the whole character of the constitution, of any of which the word is susceptible. In fact, it is the only one that is either appropriate to, or consistent with, the other parts of the instrument. Why, then, is it not the legal meaning? Manifestly it is the legal meaning. No reason whatever can be given against it, except that, if such be its meaning, the constitution will not sanction slavery! A very good reason—a perfectly unanswerable reason, in fact—in favor of this meaning; but a very futile one against it.

It is evident that the word “free” is not used as the correlative of slavery, because “Indians not taxed” are “excluded” from its application—yet they are not therefore slaves.

Again. The word “free” cannot be presumed to be used as the correlative of slavery—because slavery then had no legal existence. The word must obviously be presumed to be used as the correlative of something that did legally exist, rather than of something that did not legally exist. If it were used as the correlative of something that did not legally exist, the words “all other persons” would have no legal application. Until, then, it [75] be shown that slavery had a legal existence, authorized either by the United States constitution, or by the then existing State constitutions—a thing that cannot be shown—the word “free” certainly cannot be claimed to have been used as its correlative.

But even if slavery had been authorized by the State constitutions, the word “free,” in the United States constitution, could not have been claimed to have been used as its correlative, unless it had appeared that the United States constitution had itself provided or suggested no correlative of the word “free;” for it would obviously be absurd and inadmissible to go out of an instrument to find the intended correlative of one of its own words, when it had itself suggested one. This the constitution of the United States has done, in the persons of aliens. The power of naturalization is, by the constitution, taken from the States, and given exclusively to the United States. The constitution of the United States, therefore, necessarily supposes the existence of aliens—and thus furnishes the correlative sought for. It furnishes a class both for the word “free,” and the words “all other persons,” to apply to. And yet the slave argument contends that we must overlook these distinctions, necessarily growing out of the laws of the United States, and go out of the constitution of the United States to find the persons whom it describes as the “free,” and “all other persons.” And what makes the argument the more absurd is, that by going out of the instrument to the then existing State constitutions—the only instruments to which we can go—we can find there no other persons for the words to apply to—no other classes answering to the description of the “free persons” and “all other persons,”—than the very classes suggested by the United States constitution itself, to wit, citizens and aliens; (for it has previously been shown that the then existing State constitutions recognized no such persons as slaves.)

If we are obliged (as the slave argument claims we are) to go out of the constitution of the United States to find the class whom it describes as “all other persons” than “the free,” we shall, for aught I see, be equally obliged to go out of it to find those whom it describes as the “free”—for “the free,” and “all other persons” than “the free,” must be presumed to be found described somewhere in the same instrument. If, then, we are obliged to go out of the constitution to find the persons described in it as “the free” and “all other persons,” we are obliged to go out of it to ascertain who are the persons on whom it declares that the [76] representation of the government shall be based, and on whom, of course, the government is founded. And thus we should have the absurdity of a constitution that purports to authorize a government, yet leaves us to go in search of the people who are to be represented in it. Besides, if we are obliged to go out of the constitution, to find the persons on whom the government rests, and those persons are arbitrarily prescribed by some other instrument, independent of the constitution, this contradiction would follow, viz., that the United States government would be a subordinate government—a mere appendage to something else—a tail to some other kite—or rather a tail to a large number of kites at once—instead of being, as it declares itself to be, the supreme government—its constitution and laws being the supreme law of the land.

Again. It certainly cannot be admitted that we must go out of the United States constitution to find the classes whom it describes as “the free,” and “all other persons” than “the free,” until it be shown that the constitution has told us where to go to find them. In all other cases, (without an exception, I think,) where the constitution makes any of its provisions dependent upon the State constitutions or State legislatures, it has particularly described them as depending upon them. But it gives no intimation that it has left it with the State constitutions, or the State legislatures, to prescribe whom it means by the terms “free persons” and “all other persons,” on whom it requires its own representation to be based. We have, therefore, no more authority from the constitution of the United States, for going to the State constitutions, to find the classes described in the former as the “free persons” and “all other persons,” than we have for going to Turkey or Japan. We are compelled, therefore, to find them in the constitution of the United States itself, if any answering to the description can possibly be found there.

Again. If we were permitted to go to the State constitutions, or to the State statute books, to find who were the persons intended by the constitution of the United States; and if, as the slave argument assumes, it was left to the States respectively to prescribe who should, and who should not, be “free” within the meaning of the constitution of the United States, it would follow that the terms “free” and “all other persons,” might be applied in as many different ways, and to as many different classes of persons, as there were different States in the Union. Not only so, but the [77] application might also be varied at pleasure in the same State. One inevitable consequence of this state of things would be, that there could be neither a permanent, nor a uniform basis of representation throughout the country. Another possible, and even probable consequence would be, such inextricable confusion, as to the persons described by the same terms in the different States, that Congress could not apportion the national representation at all, in the manner required by the constitution. The questions of law, arising out of the different uses of the word “free,” by the different States, might be made so endless and inexplicable, that the State governments might entirely defeat all the power of the general government to make an apportionment.

If the slave construction be put upon this clause, still another difficulty, in the way of making an apportionment, would follow, viz., that Congress could have no legal knowledge of the persons composing each of the two different classes, on which its representation must be based; for there is no legal record—known to the laws of the United States, or even to the laws of the States—of those who are slaves, or those who are not. The information obtained by the census takers, (who have no legal records to go to,) must, in the nature of things, be of the most loose and uncertain character, on such points as these. Any accurate or legal knowledge on the subject is, therefore, obviously impossible. But if the other construction be adopted, this difficulty is avoided—for Congress then have the control of the whole matter, and may adopt such means as may be necessary for ascertaining accurately the persons who belong to each of these different classes. And by their naturalization laws they actually do provide for a legal record of all who are made “free” by naturalization.

And this consideration of certainty, as to the individuals and numbers belonging to each of these two classes, “free” and “all other persons,” acquires an increased and irresistible force, when it is considered that these different classes of persons constitute also different bases for taxation, as well as representation. The requirement of the constitution is, that “representatives and direct taxes shall be apportioned,” &c., according to the number of “free persons” and “all other persons.” In reference to so important a subject as taxation, accurate and legal knowledge of the persons and numbers belonging to the different classes, becomes indispensable. Yet under the slave construction this legal knowledge becomes impossible. Under the other construction it is as perfectly [78] and entirely within the power of Congress, as, in the nature of things, such a subject can be—for naturalization is a legal process; and legal records, prescribed by Congress, may be, and actually are, preserved of all the persons naturalized or made “free” by their laws.

If we adopt that meaning of the word “free,” which is consistent with freedom—that meaning which is consistent with natural right—the meaning given to it by the Articles of Confederation, by the then existing State constitutions, by the colonial charters, and by the English law ever since our ancestors enjoyed the name of freemen, all these difficulties, inconsistencies, contradictions and absurdities, that must otherwise arise, vanish. The word “free” then describes the native and naturalized citizens of the United States, and the words “all other persons” describe resident aliens, “Indians not taxed,” and possibly some others. The represensentation is then placed upon the best, most just, and most rational basis that the words used can be made to describe. The repretation also becomes equal and uniform throughout the country. The principle of distinction between the two bases, becomes also a stable, rational and intelligible one—one too necessarily growing out of the exercise of one of the powers granted to Congress;—one, too, whose operation could have been foreseen and judged of by the people who adopted the constitution—instead of one fluctuating with the ever-changing and arbitrary legislation of the various States, whose mode and motives of action could not have been anticipated. Adopt this definition of the word “free,” and the same legislature (that is, the national one) that is required by the constitution to apportion the representation according to certain principles, becomes invested—as it evidently ought to be, and as it necessarily must be, to be efficient—with the power of determining, by their own (naturalization) laws, who are the persons composing the different bases on which its apportionment is to be made; instead of being, as they otherwise would be, obliged to seek for these persons through all the statute books of all the different States of the Union, and through all the evidences of private property, under which one of these classes might be held. Adopt this definition of the word “free,” and the United States government becomes, so far at least as its popular representation—which is its most important feature—is concerned, an independent government, subsisting by its own vigor, and pervaded throughout by one uniform principle. Reject this definition, and the [79] popular national representation loses at once its nationality, and becomes a mere dependency on the will of local corporations—a mere shuttlecock to be driven hither and thither by the arbitrary and conflicting legislation of an indefinite number of separate States. Adopt this meaning of the word “free,” and the national government becomes capable of knowing its own bases of representation and power, and its own subjects of taxation. Reject this definition, and the government knows not whom it represents, or on whom to levy taxes for its support. Adopt this meaning of the word “free,” and some three millions of native born, but now crushed human beings, become, with their posterity, men and citizens. Adopt this meaning—this legal meaning—this only meaning that can, in this clause, be legally given to the word “free,” and our constitution becomes, instead of a nefarious compact of conspirators against the rights of man, a consistent and impartial contract of government between all “the people of the United States,” for securing “to themselves and their posterity the blessings of liberty” and “justice.”

Again. We cannot unnecessarily place upon the constitution a meaning directly destructive of the government it was designed to establish. By giving to the word “free” the meaning universally given to it by our political papers of a similar character up to the time the constitution was adopted, we give to the government three millions of citizens, ready to fight and be taxed for its support. By giving to the word “free” a meaning correlative with slavery, we locate in our midst three millions of enemies; thus making a difference of six millions, (one third of our whole number,) in the physical strength of the nation. Certainly a meaning so suicidal towards the government, cannot be given to any part of the constitution, except the language be irresistibly explicit; much less can it be done, (as in this case it would be,) wantonly, unnecessarily, gratuitously, wickedly, and in violation of all previous usage.

Again. If we look into the constitution itself for the meaning of the word “free,” we find it to result from the distinction there recognized between citizens and aliens. If we look into the contemporary State constitutions, we still find the word “free” to express the political relation of the individual to the State, and not any property relation of one individual to another. If we look into the law of nature for the meaning of the word “free,” we find that by that law all mankind are free. Whether, therefore, we look to [80] the constitution itself, to the contemporary State constitutions, or to the law of nature, for the meaning of this word “free,” the only meaning we shall find is one consistent with the personal liberty of all. On the other hand, if we are resolved to give the word a meaning correlative with slavery, we must go to the lawless code of the kidnapper to find such a meaning. Does it need any argument to prove to which of these different codes our judicial tribunals are bound to go, to find the meaning of the words used in a constitution, that is established professedly to secure liberty and justice?

Once more. It is altogether a false, absurd, violent, unnatural and preposterous proceeding, in construing a political paper, which purports to establish men’s relations to the State, and especially in construing the clause in which it fixes the basis of representation and taxation, to give to the words, which describe the persons to be represented and taxed, and which appropriately indicate those relations of men to the State which make them proper subjects of taxation and representation—to give to such words a meaning, which, instead of describing men’s relations to the State, would describe merely a personal or property relation of one individual to another, which the State has nowhere else recognized, and which, if admitted to exist, would absolve the persons described from all allegiance to the State, would deny them all right to be represented, and discharge them from all liability to be taxed.*

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But it is unnecessary to follow out this slave argument into all its ramifications. It sets out with nothing but assumptions, that are gratuitous, absurd, improbable, irrelevant, contrary to all previous usage, contrary to natural right, and therefore inadmissible. It conducts to nothing but contradictions, absurdities, impossibilities, indiscriminate slavery, anarchy, and the destruction of the very government which the constitution was designed to establish.

The other clause relied on as a recognition and sanction, both of slavery and the slave trade, is the following:

“The migration or importation of such persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person.”—(Art. 1, Sec. 9.)

The slave argument, drawn from this clause, is, that the word “importation” applies only to property, and that it therefore implies, in this clause, that the persons to be imported are necessarily to be imported as property—that is, as slaves.

But the idea that the word “importation” applies only to property, is erroneous. It applies correctly both to persons and things. The definition of the verb “import” is simply “to bring from a foreign country, or jurisdiction, or from another State, into one’s own country, jurisdiction or State.” When we speak of “importing” things, it is true that we mentally associate with them the idea of property. But that is simply because things are property, and not because the word “import” has any control, in that particular, over the character of the things imported. When we speak of importing “persons,” we do not associate with them the idea of property, simply because “persons” are not property.

We speak daily of the “importation of foreigners into the country;” but no one infers therefrom that they are brought in as slaves, but as passengers. A vessel imports, or brings in, five hundred passengers. Every vessel, or master of a vessel, that [82] “brings in” passengers, “imports” them. But such passengers are not therefore slaves. A man imports his wife and children—but they are not therefore his slaves, or capable of being owned or sold as his property. A man imports a gang of laborers, to clear lands, cut canals, or construct railroads; but not therefore to be held as slaves. An innocent meaning must be given to the word, if it will bear one. Such is the legal rule.

Even the popular understanding of the word “import,” when applied to “persons,” does not convey the idea of property. It is only when it is applied distinctly to “slaves,” that any such idea is conveyed; and then it is the word “slaves,” and not the word “import,” that suggests the idea of property. Even slave traders and slave holders attach no such meaning to the word “import,” when it is connected with the word “persons;” but only when it is connected with the word “slaves.”

In the case of Ogden vs. Saunders, (12 Wheaton, 332,) Chief Justice Marshall said, that in construing the constitution, “the intention of the instrument must prevail; that this intention must be collected from its words; that its words are to be understood in that sense in which they are generally used by those for whom the instrument was intended.” On this principle of construction, there is not the least authority for saying that this provision for “the importation of persons,” authorized the importation of them as slaves. To give it this meaning, requires the same stretching of words towards the wrong, that is applied, by the advocates of slavery, to the words “service or labor,” and the words “free” and “all other persons.”

Another reason, which makes it necessary that this construction should be placed upon the word “importation,” is, that the clause contains no other word that describes the immigration of foreigners. Yet that the clause related to the immigration of foreigners generally, and that it restrained Congress, (up to the year 1808,) from prohibiting the immigration of foreigners generally, there can be no doubt.

The object, and the only legal object, of the clause was to restrain Congress from so exercising their “power of regulating commerce with foreign nations, and among the several States, and with the Indian tribes”—(which power has been decided by the Supreme Court of the United States, to include a power over navigation and the transportation of passengers in boats and vessels*)—as [83] to obstruct the introduction of new population into such of the States as were desirous of increasing their population in that manner. The clause does not imply at all, that the population, which the States were thus to “admit,” was to be a slave population.

The word “importation,” (I repeat,) is the only word in the clause, that applies to persons that were to come into the country from foreign nations. The word “migration” applies only to those who were to go out from one of our own States or Territories into another. “Migration” is the act of going out from a state or country; and differs from immigration in this, that immigration is the act of coming into a state or country. It is obvious, therefore, that the “migration,” which Congress are here forbidden to prohibit, is simply the going out of persons from one of our own States or Territories into another—(for that is the only “migration” that could come within the jurisdiction of Congress)—and that it has no reference to persons coming in from foreign countries to our own.

If, then, “migration,” as here used, has reference only to persons going out from one State into another, the word “importation” is the only one in the clause that is applicable to foreigners coming into our country. This word “importation,” then, being the only word that can apply to persons coming into the country, it must be considered as substantially synonymous with immigration, and must apply equally to all “persons,” that are “imported,” or brought into the country as passengers. And if it applies equally to all persons, that are brought in as passengers, it does not imply that any of those persons are slaves; for no one will pretend that this clause ever authorized the State governments to treat as slaves all persons that were brought into the country as passengers. And if it did not authorize them to treat all such passengers as slaves, it did not authorize them to treat any of them as such; for it makes no discrimination between the different “persons” that should be thus imported.

Again. The argument, that the allowance of the “importation” of “persons,” implies the allowance of property in such persons, would imply a recognition of the validity of the slave laws of other countries; for unless slaves were obtained by valid purchase abroad—which purchase implies the existence and validity of foreign slave laws—the importer certainly could not claim to import his slaves as property; but he would appear at the [84] custom-house as a mere pirate, claiming to have his captures legalized. So that, according to the slave argument, the simple use of the word “importation,” in the constitution, as applied to “persons,” bound our government, not only to the sanction and toleration of slavery in our own country, but to the recognition of the validity of the slave laws of other countries.

But further. The allowance of the “importation” of slaves, as such, under this clause of the constitution, would imply that Congress must take actual, and even the most critical cognizance of the slave laws of other countries; and that they should allow neither the mere word of the person calling himself the owner, nor anything short of the fullest and clearest legal proof, according to the laws of those countries, to be sufficient to enable him to enter his slaves, as property, at the custom-house; otherwise any masters of vessels, from England or France, as well as from Africa, might, on their arrival here, claim their passengers as slaves. Did the constitution, in this clause, by simply using the word “importation,” instead of immigration, intend to throw upon the national government—at the hazard of making it a party to the illegal enslavement of human beings—the responsibility of investigating and deciding upon the legality and credibility of all the evidence that might be offered by the piratical masters of slave ships, to prove their valid purchase of, and their right of property in, their human cargoes, according to the slave laws of the countries from which they should bring them? Such must have been the intention of the constitution, if it intended (as it must, if it intended anything of this kind) that the fact of “importation” under the commercial regulations of Congress, should be thereafter a sufficient authority for holding in slavery the persons imported.

But perhaps it will be said that it was not the intention of the constitution, that Congress should take any responsibility at all in the matter; that it was merely intended that whoever came into the country with a cargo of men, whom he called his slaves, should be permitted to bring them in on his own responsibility, and sell them as slaves for life to our people; and that Congress were prohibited only from interfering, or asking any questions as to how he obtained them, or how they became his slaves. Suppose such were the intention of the constitution—what follows? Why, that the national government, the only government that was to be known to foreign nations, the only government that was [85] to be permitted to regulate our commerce or make treaties with foreign nations, the government on whom alone was to rest the responsibility of war with foreign nations, was bound to permit (until 1808) all masters, both of our own ships and of the ships of other nations, to turn pirates, and make slaves of their passengers, whether Englishmen, Frenchmen, or any other civilized people, (for the constitution makes no distinction of “persons” on this point,) bring them into this country, sell them as slaves for life to our people, and thus make our country a rendezvous and harbor for pirates, involve us inevitably in war with every civilized nation in the world, cause ourselves to be outlawed as a people, and bring certain and swift destruction upon the whole nation; and yet this government, that had the sole responsibility of all our foreign relations, was constitutionally prohibited from interfering in the matter, or from doing anything but lifting its hands in prayer to God and these pirates, that the former would so far depart, and the latter so far desist from their usual courses, as might be necessary to save us until 1808, (after which time we would take the matter into our own hands, and, by prohibiting the cause of the danger, save ourselves,) from the just vengeance, which the rest of mankind were taking upon us.

This is the kind of constitution, under which (according to the slave argument) we lived until 1808.

But is such the real character of the constitution? By it, did we thus really avow to the world that we were a nation of pirates? that our territory should be a harbor for pirates? that our people were constitutionally licensed to enslave the people of all other nations, without discrimination, (for the instrument makes no discrimination,) whom they could either kidnap in their own countries, or capture on the high seas? and that we had even prohibited our only government that could make treaties with foreign nations, from making any treaty, until 1808, with any particular nation, to exempt the people of that nation from their liability to be enslaved by the people of our own? The slave argument says that we did avow all this. If we really did, perhaps all that can be said of it now is, that it is very fortunate for us that other nations did not take us at our word. For if they had taken us at our word, we should, before 1808, have been among the nations that were.

Suppose that, on the organization of our government, we had been charged by foreign nations with having established a piratical government—how could we have rebutted the charge otherwise [86] than by denying that the words “importation of persons” legally implied that the persons imported were slaves? Suppose that European ambassadors had represented to President Washington that their governments considered our constitution as licensing our people to kidnap the people of other nations, without discrimination, and bring them to the United States as slaves. Would he not have denied that the legal meaning of the clause did anything more than secure the free introduction of foreigners as passengers and freemen? Or would he—he, the world-renowned champion of human rights—have indeed stooped to the acknowledgment that in truth he was the head of a nation of pirates, whose constitution did guaranty the freedom of kidnapping men abroad, and importing them as slaves? And would he, in the event of this acknowledgment, have sought to avert the destruction, which such an avowal would be likely to bring upon the nation, by pleading that, although such was the legal meaning of the words of our constitution, we yet had an understanding, (an honorable understanding!) among ourselves, that we would not take advantage of the license to kidnap or make slaves of any of the citizens of those civilized and powerful nations of Europe, that kept ships of war, and knew the use of gunpowder and cannon; but only the people of poor, weak, barbarous and ignorant nations, who were incapable of resistance and retaliation?

Again. Even the allowance of the simple “importation” of slaves—(and that is the most that is literally provided for—and the word “importation” must be construed to the letter,) would not, of itself, give any authority for the continuance of slavery after “importation.” If a man bring either property or persons into this country, he brings them in to abide the constitutional laws of the country; and not to be held according to the customs of the country from which they were brought. Were it not so, the Turk might import a harem of Georgian slaves, and, at his option, either hold them as his own property, or sell them as slaves to our own people, in defiance of any principles of freedom that should prevail amongst us. To allow this kind of “importation,” would be to allow not merely the importation of foreign “persons,” but also foreign laws to take precedence of our own.

Finally. The conclusion, that Congress were restrained, by this clause, only from prohibiting the immigration of a foreign population, and not from prohibiting the importation of slaves, to be held as slaves after their importation—is the more inevitable [87] from the fact that the power given to Congress of naturalizing foreigners, is entirely unlimited—except that their laws must be uniform throughout the United States. They have perfect power to pass laws that shall naturalize every foreigner without distinction, the moment he sets foot on our soil. And they had this power as perfectly prior to 1808, as since. And it is a power entirely inconsistent with the idea that they were bound to admit, and forever after to acknowledge as slaves, all or any who might be attempted to be brought into the country as such.*

One other provision of the constitution, viz., the one that, “the United States shall protect each of the States against domestic violence”—has sometimes been claimed as a special pledge of impunity and succor to that kind of “violence,” which consists in one portion of the people’s standing constantly upon the necks of another portion, and robbing them of all civil privileges, and trampling upon all their personal rights. The argument seems to take it for granted, that the only proper way of protecting a “republican” State (for the States are all to be “republican”) against “domestic violence,” is to plant men firmly upon one another’s necks, (about in the proportion of two upon one,) arm the two with whip and spur, and then keep an armed force standing by to cut down those that are ridden, if they dare attempt to throw the riders. When the ridden portion shall, by this process, have been so far subdued as to bear the burdens, lashings and spurrings of the other portion without resistance, then the state will have been secured against “domestic violence,” and the “republican form of government” will be completely successful.

This version of this provision of the constitution presents a fair illustration of those new ideas of law and language, that have been invented for the special purpose of bringing slavery within the pale of the constitution.

If it have been shown that none of the other clauses of the constitution refer to slavery, this one, of course, cannot be said to [88] refer to slave insurrections; because if the constitution presumes everybody to be free, it of course does not suppose that there can be such a thing as an insurrection of slaves.

But further. The legal meaning, and the only legal meaning of the word “violence,” in this clause, is unlawful force. The guaranty, therefore, is one of protection only against unlawful force. Let us apply this doctrine to the case of the slaves and their masters, and see which party is entitled to be protected against the other. Slaveholding is not an act of law; it is an act of pure “violence,” or unlawful force. It is a mere trespass, or assault, committed by one person upon another. For example—one person beats another, until the latter will obey him, work for him without wages, or, in case of a woman, submit to be violated. Such was the character (as has been already shown) of all the slaveholding practised in this country at the adoption of the constitution. Resistance to such slaveholding is not “violence,” nor resistance to law; it is nothing more nor less than self-defence against a trespass. It is a perfectly lawful resistance to an assault and battery. It can no more be called “violence,” (unlawful force,) than resistance to a burglar, an assassin, a highwayman, or a ravisher, can be called “violence.” All the “violence” (unlawful force) there is in the case, consists in the aggression, not in the resistance. This clause, then, so far as it relates to slavery, is a guaranty against the “violence” of slaveholding, not against any necessary act of self-defence on the part of the slave.

We have thus examined all those clauses of the constitution, that have been relied on to prove that the instrument recognizes and sanctions slavery. No one would have ever dreamed that either of these clauses alone, or that all of them together, contained so much as an allusion to slavery, had it not been for circumstances extraneous to the constitution itself. And what are these extraneous circumstances? They are the existence and toleration, in one portion of the country, of a crime that embodies within itself nearly all the other crimes, which it is the principal object of all our governments to punish and suppress; a crime which we have therefore no more right to presume that the constitution of the United States intended to sanction, than we have to presume that it intended to sanction all the separate crimes which slavery embodies, and our governments prohibit. Yet we have gratuitously presumed that the constitution intended to sanction all these separate crimes, as they are comprehended in [89] the general crime of slavery. And acting upon this gratuitous presumption, we have sought, in the words of the constitution, for some hidden meaning, which we could imagine to have been understood, by the initiated, as referring to slavery; or rather we have presumed its words to have been used as a kind of cipher, which, among confederates in crime, (as we presume its authors to have been,) was meant to stand for slavery. In this way, and in this way only, we pretend to have discovered, in the clauses that have been examined, a hidden, yet legal sanction of slavery. In the name of all that is legal, who of us are safe, if our governments, instead of searching our constitutions to find authorities for maintaining justice, are to continue to busy themselves in such prying and microscopic investigations, after such disguised and enigmatical authorities for such wrongs as that of slavery, and their pretended discoveries are to be adopted as law, which they are sworn to carry into execution?

The clauses mentioned, taken either separately or collectively, neither assert, imply, sanction, recognize nor acknowledge any such thing as slavery. They do not even speak of it. They make no allusion to it whatever. They do not suggest, and, of themselves, never would have suggested the idea of slavery. There is, in the whole instrument, no such word as slave or slavery; nor any language that can legally be made to assert or imply the existence of slavery. There is in it nothing about color; nothing from which a liability to slavery can be predicated of one person more than another; or from which such a liability can be predicated of any person whatever. The clauses, that have been claimed for slavery, are all, in themselves, honest in their language, honest in their legal meaning; and they can be made otherwise only by such gratuitous assumptions against natural right, and such straining of words in favor of the wrong, as, if applied to other clauses, would utterly destroy every principle of liberty and justice, and allow the whole instrument to be perverted to every conceivable purpose of tyranny and crime.

Yet these perversions of the constitution are made by the advocates of slavery, not merely in defiance of those legal rules of interpretation, which apply to all instruments of the kind, but also in defiance of the express language of the preamble, which declares that the object of the instrument is to “establish justice” and “secure liberty”—which declaration alone would furnish an imperative rule of interpretation, independently of all other rules.

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Let us now look at the positive provisions of the constitution, in favor of liberty, and see whether they are not only inconsistent with any legal sanction of slavery, but also whether they must not, of themselves, have necessarily extinguished slavery, if it had had any constitutional existence to be extinguished.

And, first, the constitution made all “the people of the United States” citizens under the government to be established by it; for all of those, by whose authority the constitution declares itself to be established, must of course be presumed to have been made citizens under it. And whether they were entitled or not to the right of suffrage, they were at least entitled to all the personal liberty and protection, which the constitution professes to secure to “the people” generally.

Who, then, established the constitution?

The preamble to the constitution has told us in the plainest possible terms, to wit, that “We, the people of the United States,” “do ordain and establish this constitution,” &c.

By “the people of the United States,” here mentioned, the constitution intends all “the people” then permanently inhabiting the United States. If it does not intend all, who were intended by “the people of the United States?”—The constitution itself gives no answer to such a question.—It does not declare that “we, the white people,” or “we, the free people,” or “we, a part of the people”—but that “we, the people”—that is, we the whole people—of the United States, “do ordain and establish this constitution.”

If the whole people of the United States were not recognized as citizens by the constitution, then the constitution gives no information as to what portion of the people were to be citizens under it. And the consequence would then follow that the constitution established a government that could not know its own citizens.

We cannot go out of the constitution for evidence to prove who were to be citizens under it. We cannot go out of a written instrument for evidence to prove the parties to it, nor to explain its meaning, except the language of the instrument on that point be ambiguous. In this case there is no ambiguity. The language of the instrument is perfectly explicit and intelligible.

Because the whole people of the country were not allowed to vote on the ratification of the constitution, it does not follow that they were not made citizens under it; for women and children did not vote on its adoption; yet they are made citizens by it, and [91] are entitled as citizens to its protection; and the State governments cannot enslave them. The national constitution does not limit the right of citizenship and protection by the right of suffrage, any more than do the State constitutions. Under the most, probably under all, the State constitutions, there are persons who are denied the right of suffrage—but they are not therefore liable to be enslaved.

Those who did take part in the actual ratification of the constitution, acted in behalf of, and, in theory, represented the authority of the whole people. Such is the theory in this country wherever suffrage is confined to a few; and such is the virtual declaration of the constitution itself. The declaration that “we the people of the United States do ordain and establish this constitution,” is equivalent to a declaration that those who actually participated in its adoption, acted in behalf of all others, as well as for themselves.

Any private intentions or understandings, on the part of one portion of the people, as to who should be citizens, cannot be admitted to prove that such portion only were intended by the constitution, to be citizens; for the intentions of the other portion would be equally admissible to exclude the exclusives. The mass of the people of that day could claim citizenship under the constitution, on no other ground than as being a part of “the people of the United States;” and such claim necessarily admits that all other “people of the United States” were equally citizens.

That the designation, “We, the people of the United States,” included the whole people that properly belonged to the United States, is also proved by the fact that no exception is made in any other part of the instrument.

If the constitution had intended that any portion of “the people of the United States” should be excepted from its benefits, disfranchised, outlawed, enslaved; it would of course have designated these exceptions with such particularity as to make it sure that none but the true persons intended would be liable to be subjected to such wrongs. Yet, instead of such particular designation of the exceptions, we find no designation whatever of the kind. But on the contrary, we do find, in the preamble itself, a sweeping declaration to the effect that there are no such exceptions; that the whole people of the United States are citizens, and entitled to liberty, protection, and the dispensation of justice under the constitution.

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If it be admitted that the constitution designated its own citizens, then there is no escape from the conclusion that it designated the whole people of the United States as such. On the other hand, if it be denied that the constitution designated its own citizens, one of these two conclusions must follow, viz., 1st, that it has no citizens; or, 2d, that it has left an unrestrained power in the State governments to determine who may, and who may not be citizens of the United States government. If the first of these conclusions be adopted, viz., that the constitution has no citizens, then it follows that there is really no United States government, except on paper—for there would be as much reason in talking of an army without men, as of a government without citizens. If the second conclusion be adopted, viz., that the State governments have the right of determining who may, and who may not be citizens of the United States government, then it follows that the state governments may at pleasure destroy the government of the United States, by enacting that none of their respective inhabitants shall be citizens of the United States.

This latter is really the doctrine of some of the slave States—the “state-rights” doctrine, so called. That doctrine holds that the general government is merely a confederacy or league of the several States, as States; not a government established by the people, as individuals. This “state-rights” doctrine has been declared unconstitutional by reiterated opinions of the Supreme Court of the United States;* and, what is of more consequence, it is denied also by the preamble to the constitution itself, which declares that it is “the people” (and not the State governments) that ordain and establish it. It is true also that the constitution was ratified by conventions of the people, and not by the legislatures of the States. Yet because the constitution was ratified by conventions of the States separately, (as it naturally would be for convenience, and as it necessarily must have been for the reason that none but [93] the people of the respective States could recall any portion of the authority they had delegated to their State governments, so as to grant it to the United States government,)—yet because it was thus ratified, I say, some of the slave States have claimed that the general government was a league of States, instead of a government formed by “the people.” The true reason why the slave States have held this theory, probably is, because it would give, or appear to give, to the States the right of determining who should, and who should not, be citizens of the United States. They probably saw that if it were admitted that the constitution of the United States had designated its own citizens, it had undeniably designated the whole people of the then United States as such; and that, as a State could not enslave a citizen of the United States, (on account of the supremacy of the constitution of the United States,) it would follow that there could be no constitutional slavery in the United States.

Again. If the constitution was established by authority of all “the people of the United States,” they were all legally parties to it, and citizens under it. And if they were parties to it, and citizens under it, it follows that neither they, nor their posterity, nor any nor either of them, can ever be legally enslaved within the territory of the United States; for the constitution declares its object to be, among other things, “to secure the blessings of liberty to ourselves, and our posterity.” This purpose of the national constitution is a law paramount to all State constitutions; for it is declared that “this constitution, and the laws of the United States that shall be made in pursuance thereof, and all treaties made, or which shall be made under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding.”

No one, I suppose, doubts that if the State governments were to abolish slavery, the slaves would then, without further legislation, become citizens of the United States. Yet, in reality, if they would become citizens then, they are equally citizens now—else it would follow that the State governments had an arbitrary power of making citizens of the United States; or—what is equally absurd—it would follow that disabilities, arbitrarily imposed by the State governments, upon native inhabitants of the country, were, of themselves, sufficient to deprive such inhabitants of the citizenship, which would otherwise have been conferred [94] upon them by the constitution of the United States. To suppose that the State governments are thus able, arbitrarily, to keep in abeyance, or arbitrarily to withhold from any of the inhabitants of the country, any of the benefits or rights which the national constitution intended to confer upon them, would be to suppose that the State constitutions were paramount to the national one. The conclusion, therefore, is inevitable, that the State governments have no power to withhold the rights of citizenship from any who are otherwise competent to become citizens. And as all the native born inhabitants of the country are at least competent to become citizens of the United States, (if they are not already such,) the State governments have no power, by slave laws or any other, to withhold the rights of citizenship from them.

But however clear it may be, that the constitution, in reality, made citizens of all “the people of the United States,” yet it is not necessary to maintain that point, in order to prove that the constitution gave no guaranty or sanction to slavery—for if it had not already given citizenship to all, it nevertheless gave to the government of the United States unlimited power of offering citizenship to all. The power given to the government of passing naturalization laws, is entirely unrestricted, except that the laws must be uniform throughout the country. And the government have undoubted power to offer naturalization and citizenship to every person in the country, whether foreigner or native, who is not already a citizen. To suppose that we have in the country three millions of native born inhabitants, not citizens, and whom the national government has no power to make citizens, when its power of naturalization is entirely unrestricted, is a palpable contradiction.

But further. The constitution of the United States must be made consistent with itself throughout; and if any of its parts are irreconcilable with each other, those parts that are inconsistent with liberty, justice and right, must be thrown out for inconsistency. Besides the provisions already mentioned, there are numerous others, in the constitution of the United States, that are entirely and irreconcilably inconsistent with the idea that there either was, or could be, any constitutional slavery in this country.

Among these provisions are the following:

First. Congress have power to lay a capitation or poll tax upon the people of the country. Upon whom shall this tax be levied? and who must be held responsible for its payment? Suppose [95] a poll tax were laid upon a man, whom the State laws should pretend to call a slave. Are the United States under the necessity or investigating, or taking any notice of the fact of slavery, either for the purpose of excusing the man himself from the tax, or of throwing it upon the person claiming to be his owner? Must the government of the United States find a man’s pretended owner, or only the man himself, before they can tax him? Clearly the United States are not bound to tax any one but the individual himself, or to hold any other person responsible for the tax. Any other principle would enable the State governments to defeat any tax of this kind levied by the United States. Yet a man’s liability to be held personally responsible for the payment of a tax, levied upon himself by the government of the United States, is inconsistent with the idea that the government is bound to recognize him as not having the ownership of his own person.

Second. “The Congress shall have power to regulate commerce with foreign nations, and among the several States, and with the Indian tribes.”

This power is held, by the Supreme Court of the United States, to be an exclusive one in the general government; and it obviously must be so, to be effectual—for if the States could also interfere to regulate it, the States could at pleasure defeat the regulations of Congress.

Congress, then, having the exclusive power of regulating this commerce, they only (if anybody) can say who may, and who may not, carry it on; and probably even they have no power to discriminate arbitrarily between individuals. But, in no event, have the State governments any right to say who may, or who may not, carry on “commerce with foreign nations,” or “among the several States,” or “with the Indian tribes.” Every individual—naturally competent to make contracts—whom the State laws declare to be a slave, probably has, and certainly may have, under the regulations of Congress, as perfect a right to carry on “commerce with foreign nations, and among the several States, and with the Indian tribes,” as any other citizen of the United States can have—“anything in the constitution or laws of any State to the contrary notwithstanding.” Yet this right of carrying on commerce is a right entirely inconsistent with the idea of a man’s being a slave.

Again. It is a principle of law that the right of traffic is a natural right, and that all commerce (that is intrinsically innocent) [96] is therefore lawful, except what is prohibited by positive legislation. Traffic with the slaves, either by people of foreign nations or by people belonging to other States than the slaves, has never (so far as I know) been prohibited by Congress, which is the only government (if any) that has power to prohibit it. Traffic with the slaves is therefore as lawful at this moment, under the constitution of the United States, as is traffic with their masters; and this fact is entirely inconsistent with the idea that their bondage is constitutional.

Third. “The Congress shall have power to establish post offices and post roads.”

Who, but Congress, have any right to say who may send, or receive letters by the United States posts? Certainly no one. They have undoubted authority to permit any one to send and receive letters by their posts—“anything in the constitutions or laws of the States to the contrary notwithstanding.” Yet the right to send and receive letters by post, is a right inconsistent with the idea of a man’s being a slave.

Fourth. “The Congress shall have power to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

Suppose a man, whom a State may pretend to call a slave, should make an invention or discovery—Congress have undoubted power to secure to such individual himself, by patent, the “exclusive”—(mark the word)—the “exclusive right” to his invention or discovery. But does not this “exclusive right” in the inventor himself, exclude the right of any man, who, under a State law, may claim to be the owner of the inventor? Certainly it does. Yet the slave code says that whatever is a slave’s is his owner’s. This power, then, on the part of Congress, to secure to an individual the exclusive right to his inventions and discoveries, is a power inconsistent with the idea that that individual himself, and all he may possess, are the property of another.

Fifth. “The Congress shall have power to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;” also “to raise and support armies;” and “to provide and maintain a navy.”

Have not Congress authority, under these powers, to enlist soldiers and sailors, by contract with themselves, and to pay them [97] their wages, grant them pensions, and secure their wages and pensions to their own use, without asking the permission either of the State governments, or of any individuals whom the State governments may see fit to recognize as the owners of such soldiers and sailors? Certainly they have, in defiance of all State laws and constitutions whatsoever; and they have already asserted that principle by enacting that pensions, paid by the United States to their soldiers, shall not be liable to be taken for debt, under the laws of the States. Have they not authority also to grant letters of marque and reprisal, and to secure the prizes, to a ship’s crew of blacks, as well as of whites? To those whom the State governments call slaves, as well as to those whom the State governments call free? Have not Congress authority to make contracts, for the defence of the nation, with any and all the inhabitants of the nation, who may be willing to perform the service? Or are they obliged first to ask and obtain the consent of those private individuals who may pretend to own the inhabitants of this nation? Undoubtedly Congress have the power to contract with whom they please, and to secure wages and pensions to such individuals, in contempt of all State authority. Yet this power is inconsistent with the idea that the constitution recognizes or sanctions the legality of slavery.

Sixth. “The Congress shall have power to provide for the organizing, arming and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States respectively the appointment of the officers, and the authority of training the militia, according to the discipline prescribed by Congress.” Also “to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions.”

Have not Congress, under these powers, as undoubted authority to enroll in the militia, and “arm” those whom the States call slaves, and authorize them always to keep their arms by them, even when not on duty, (that they may at all times be ready to be “called forth” “to execute the laws of the Union, suppress insurrections, and repel invasions,”) as they have thus to enroll and arm those whom the States call free? Can the State governments determine who may, and who may not, compose the militia of the “United States?”

Look, too, at this power, in connection with the second amendment to the constitution; which is in these words:

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“A well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed.”

These provisions obviously recognize the natural right of all men “to keep and bear arms” for their personal defence; and prohibit both Congress and the State governments from infringing the right of “the people”—that is, of any of the people—to do so; and more especially of any whom Congress have power to include in their militia. This right of a man “to keep and bear arms,” is a right palpably inconsistent with the idea of his being a slave. Yet the right is secured as effectually to those whom the States presume to call slaves, as to any whom the States condescend to acknowledge free.

Under this provision any man has a right either to give or sell arms to those persons whom the States call slaves; and there is no constitutional power, in either the national or State governments, that can punish him for so doing; or that can take those arms from the slaves; or that can make it criminal for the slaves to use them, if, from the inefficiency of the laws, it should become necessary for them to do so, in defence of their own lives or liberties; for this constitutional right to keep arms implies the constitutional right to use them, if need be, for the defence of one’s liberty or life.

Seventh. The constitution of the United States declares that “no State shall pass any law impairing the obligation of contracts.”

“The obligation of contracts,” here spoken of, is, of necessity, the natural obligation; for that is the only real or true obligation that any contracts can have. It is also the only obligation, which courts recognize in any case, except where legislatures arbitrarily interfere to impair it. But the prohibition of the constitution is upon the States passing any law whatever that shall impair the natural obligation of men’s contracts. Yet, if slave laws were constitutional, they would effectually impair the obligation of all contracts entered into by those who are made slaves; for the slave laws must necessarily hold that all a slave’s contracts are void.

This prohibition upon the States to pass any law impairing the natural obligation of men’s contracts, implies that all men have a constitutional right to enter into all contracts that have a natural obligation. It therefore secures the constitutional right of all men to enter into such contracts, and to have them respected by the State governments. Yet this constitutional right of all men to [99] enter into all contracts that have a natural obligation, and to have those contracts recognized by law as valid, is a right plainly inconsistent with the idea that men can constitutionally be made slaves.

This provision, therefore, absolutely prohibits the passage of slave laws, because laws that make men slaves must necessarily impair the obligation of all their contracts.

Eighth. Persons, whom some of the State governments recognize as slaves, are made eligible, by the constitution of the United States, to the office of President of the United States. The constitutional provision on this subject is this:

“No person, except a natural born citizen, or a citizen of the United States at the time of the adoption of this constitution, shall be eligible to the office of President; neither shall any person be eligible to that office, who shall not have attained the age of thirty-five years, and been fourteen years a resident of the United States.”

According to this provision, all “persons,”* who have resided [100] within the United States fourteen years, have attained the age of thirty-five years, and are either natural born citizens, or were citizens of the United States at the time of the adoption of the constitution, are eligible to the office of President. No other qualifications than these being required by the constitution, no others can be legally demanded. The only question, then, that can arise, is as to the word “citizen.” Who are the persons that come within this definition, as here used? The clause itself divides them into two classes, to wit, the “natural born,” and those who were “citizens of the United States at the time of the adoption of the constitution.” In regard to this latter class, it has before been shown, from the preamble to the constitution, that all who were “people of the United States” (that is, permanent inhabitants) at the time the constitution was adopted, were made citizens by it. And this clause, describing those eligible to the office of President, implies the same thing. This is evident; for it speaks of those who were “citizens of the United States at the time of the adoption of the constitution.” Now there clearly could have been no “citizens of the United States, at the time of the adoption of the constitution,” unless they were made so by the constitution itself; for there were no “citizens of the United States” before the adoption of the constitution. The confederation had no citizens. It [101] was a mere league between the State governments. The separate States belonging to the confederacy had each their own citizens respectively. But the confederation itself, as such, had no citizens. There were, therefore, no “citizens of the United States,” (but only citizens of the respective States,) before the adoption of the constitution. Yet this clause asserts that immediately on the adoption, or “at the time of the adoption of this constitution,” there were “citizens of the United States.” Those, then, who were “citizens of the United States at the time of the adoption of the constitution,” were necessarily those, and only those, who had been made so by the adoption of the constitution; because they could have become citizens at that precise “time” in no other way. If, then, any persons were made citizens by the adoption of the constitution, who were the individuals that were thus made citizens? They were “the people of the United States,” of course—as the preamble to the constitution virtually asserts. And if “the people of the United States” were made citizens by the adoption of the constitution, then all “the people of the United States” were necessarily made citizens by it—for no discrimination is made by the constitution between different individuals. “people of the United States”—and there is therefore no means of determining who were made citizens by the adoption of the constitution, unless all “the people of the United States” were so made. Any “person,” then, who was one of “the people of the United States” “at the time of the adoption of this constitution,” and who is thirty-five years old, and has resided fourteen years within the United States, is eligible to the office of President of the United States. And if every such person be eligible, under the constitution, to the office of President of the United States, the constitution certainly does not recognize them as slaves.

The other class of citizens, mentioned as being eligible to the office of President, consists of the “natural born citizens.” Here is an implied assertion that natural birth in the country gives the right of citizenship. And if it gives it to one, it necessarily gives it to all—for no discrimination is made; and if all persons born in the country are not entitled to citizenship, the constitution has given us no test by which to determine who of them are entitled to it.

Every person, then, born in the country, and that shall have attained the age of thirty-five years, and been fourteen years a resident within the United States, is eligible to the office of President. [102] And if eligible to that office, the constitution certainly does not recognize him as a slave.

Persons, who are “citizens” of the United States, according to the foregoing definitions, are also eligible to the offices of representative and senator of the United States; and therefore cannot be slaves.

Ninth. The constitution declares that “the trial of all crimes, except in cases of impeachment, shall be by jury.” Also that “Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.”

It is obvious that slaves, if we have any, might “levy war against the United States,” and might also “adhere to their enemies, giving them aid and comfort.” It may, however, be doubted whether they could commit the crime of treason—for treason implies a breach of fidelity, trust or allegiance, where fidelity, trust or allegiance is due. And it is very clear that slaves could owe allegiance, trust or fidelity, neither to the United States, nor to the State governments; for allegiance is due to a government only from those who are protected by it. Slaves could owe to our governments nothing but resistance and destruction. If, therefore, they were to levy war against the United States, they might not perhaps be liable to the technical charge of treason; although there would, in reality, be as much treason in their act, as there would of any other crime—for there would, in truth, be neither legal nor moral crime of any kind in it. Still, the government would be compelled, in order to protect itself against them, to charge them with some crime or other—treason, murder, or something else. And this charge, whatever it might be, would have to be tried by a jury. And what (in criminal cases) is the “trial by jury?” It is a trial, both of the law and the fact, by the “peers” or equals, of the person tried. Who are the “peers” of a slave? None, evidently, but slaves. If, then, the constitution recognizes any such class of persons, in this country, as slaves, it would follow that for any crime committed by them against the United States, they must be tried, both on the law and the facts, by a jury of slaves. The result of such trials we can readily imagine.

Does this look as if the constitution guarantied, or even recognized the legality of slavery?

Tenth. The constitution declares that “The privilege of the [103] writ of habeas corpus shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it.

The privilege of this writ, wherever it is allowed, is of itself sufficient to make slavery impossible and illegal. The object and prerogative of this writ are to secure to all persons their natural right to personal liberty, against all restraint except from the government; and even against restraints by the government itself, unless they are imposed in conformity with established general laws, and upon the charge of some legal offence or liability. It accordingly liberates all who are held in custody against their will, (whether by individuals or the government,) unless they are held on some formal writ or process, authorized by law, issued by the government, according to established principles, and charging the person held by it with some legal offence or liability. The principle of the writ seems to be, that no one shall be restrained of his natural liberty, unless these three things conspire; 1st, that the restraint be imposed by special command of the government; 2d, that there be a general law authorizing restraints for specific causes; and, 3d, that the government, previously to issuing process for restraining any particular individual, shall itself, by its proper authorities, take express cognizance of, and inquire cautiously into the facts of each case, and ascertain, by reasonable evidence, that the individual has brought himself within the liabilities of the general law. All these things the writ of habeas corpus secures to be done, before it will suffer a man to be restrained of his liberty; for the writ is a mandate to the person holding another in custody, commanding him to bring his prisoner before the court, and show the authority by which he holds him. Unless he then exhibit a legal precept, warrant or writ, issued by, and bearing the seal of the government, specifying a legal ground for restraining the prisoner, and authorizing or requiring him to hold him in custody, he will be ordered to let him go free. Hence all keepers of prisons, in order to hold their prisoners against the authority of this writ, are required, in the case of each prisoner, to have a written precept or order, bearing the seal of the government, and issued by the proper authority, particularly describing the prisoner by name or otherwise, and setting forth the legal grounds of his imprisonment, and requiring the keeper of the prison to hold him in his custody.

Now the master does not hold his slave in custody by virtue of any formal or legal writ or process, either authorized by law, or [104] issued by the government, or that charges the slave with any legal offence or liability. A slave is incapable of incurring any legal liability, or obligation to his master. And the government could, with no more consistency, grant a writ or process to the master, to enable him to hold his slave, than it could to enable him to hold his horse. It simply recognizes his right of property in his slave, and then leaves him at liberty to hold him by brute force, if he can, as he holds his ox, or his horse—and not otherwise. If the slave escape, or refuse to labor, the slave code no more authorizes the government to issue legal process against the slave, to authorize the master to catch him, or compel him to labor, than it does against a horse for the same purpose.—The slave is held simply as property, by individual force, without legal process. But the writ of habeas corpus acknowledges no such principle as the right of property in man. If it did, it would be perfectly impotent in all cases whatsoever; because it is a principle of law, in regard to property, that simple possession is prima facie evidence of ownership; and therefore any man, who was holding another in custody, could defeat the writ by pleading that he owned his prisoner, and by giving, as proof of ownership, the simple fact that he was in possession of him. If, therefore, the writ of habeas corpus did not, of itself, involve a denial of the right of property in man, the fact stated in it, that one man was holding another in custody, would be prima facie evidence that he owned him, and had a right to hold him; and the writ would therefore carry an absurdity on its face.

The writ of habeas corpus, then, necessarily denies the right of property in man. And the constitution, by declaring, without any discrimination of persons, that “the privilege of this writ shall not be suspended,”—that is, shall not be denied to any human being—has declared that, under the constitution, there can be no right of property in man.

This writ was unquestionably intended as a great constitutional guaranty of personal liberty. But unless it denies the right of property in man, it in reality affords no protection to any of us against being made slaves. If it does deny the right of property in man, the slave is entitled to the privilege of the writ; for he is held in custody by his master, simply on the ground of property.

Mr. Christian, one of Blackstone’s editors, says that it is this writ that makes slavery impossible in England. It was on this writ, that Somerset was liberated. The writ, in fact, asserts, as a [105] great constitutional principle, the natural right of personal liberty. And the privilege of the writ is not confined to citizens, but extends to all human beings.* And it is probably the only absolute guaranty, that our national constitution gives to foreigners and aliens, that they shall not, on their arrival here, be enslaved by those of our State governments that exhibit such propensities for enslaving their fellow-men. For this purpose, it is a perfect guaranty to people who come here from any part of the world. And if it be such a guaranty to foreigners and aliens, is it no guaranty to those born under the constitution? Especially when the constitution makes no discrimination of persons?

Eleventh. “The United States shall guaranty to every State in this Union a republican form of government, and shall protect each of them against invasion; and, on application of the legislature, or of the executive, (when the legislature cannot be convened,) against domestic violence.”

Mark the strength and explicitness of the first clause of this section, to wit, “The United States shall guaranty to every State in this Union a republican form of government.” Mark also especially that this guaranty is one of liberty, and not of slavery.

We have all of us heretofore been compelled to hear, from individuals of slaveholding principles, many arrogant and bombastic assertions, touching the constitutional “guaranties” given to slavery; and persons, who are in the habit of taking their constitutional law from other men’s mouths, instead of looking at the constitution for themselves, have probably been led to imagine that the constitution had really given such guaranties in some explicit and tangible form. We have, nevertheless, seen that all those pretended guaranties are at most nothing but certain vague hints, insinuations, ciphers and innuendoes, that are imagined to be covered up under language which legally means nothing of the kind. But, in the clause now cited, we do have an explicit and peremptory “guaranty,” depending upon no implications, inferences or conjectures, and couched in no uncertain or ambiguous terms. And what is this guaranty? Is it a guaranty of slavery? No. It is a guaranty of something flatly incompatible with [106] slavery: a guaranty of “a republican form of government to every State in this Union.”

And what is “a republican form of government?” It is where the government is a commonwealth—the property of the public, of the mass of the people, or of the entire people. It is where the government is made up of, and controlled by the combined will and power of the public, or mass of the people—and where, of natural consequence, it will have, for its object, the protection of the rights of all. It is indispensable to a republican form of government, that the public, the mass of the people, if not the entire people, participate in the grant of powers to the government, and in the protection afforded by the government. It is impossible, therefore, that a government, under which any considerable number of the people (if indeed any number of the people, are disfranchised and enslaved, can be a republic. A slave government is an oligarchy; and one too of the most arbitrary and criminal character.

Strange that men, who have eyes capable of discovering in the constitution so many covert, implied and insinuated guaranties of crime and slavery, should be blind to the legal import of so open, explicit and peremptory a guaranty of freedom, equality and right.

Even if there had really been, in the constitution, two such contradictory guaranties, as one of liberty or republicanism in every State of the Union, and another of slavery in every State where one portion of the people might succeed in enslaving the rest, one of these guaranties must have given way to the other—for, being plainly inconsistent with each other, they could not have stood together. And it might safely have been left either to legal or to moral rules to determine which of the two should prevail—whether a provision to perpetuate slavery should triumph over a guaranty of freedom.

But it is constantly asserted, in substance, that there is “no propriety” in the general government’s interfering in the local governments of the States. Those who make this assertion appear to regard a State as a single individual, capable of managing his own affairs, and of course unwilling to tolerate the intermeddling of others. But a State is not an individual. It is made up of large numbers of individuals, each and all of whom, amid the intestine mutations and strifes to which States are subject, are liable, at some time or other, to be trampled upon by the strongest party, and may therefore reasonably choose to secure, in advance, [107] some external protection against such emergencies, by making reciprocal contracts with other people similarly exposed in the neighboring States. Such contracts for mutual succor and protection, are perfectly fit and proper for any people who are so situated as to be able to contribute to each other’s security. They are as fit and proper as any other political contracts whatever; and are founded on precisely the same principle of combination for mutual defence—for what are any of our political contracts and forms of government, but contracts between man and man for mutual protection against those who may conspire to injure either or all of them? But these contracts, fit and proper between all men, are peculiarly appropriate to those, who, while they are members of various local and subordinate associations, are, at the same time, united for specific purposes under one general government. Such a mutual contract, between the people of all the States, is contained in this clause of the constitution. And it gives to them all an additional guaranty for their liberties.

Those who object to this guaranty, however, choose to overlook all these considerations, and then appear to imagine that their notions of “propriety” on this point, can effectually expunge the guaranty itself from the constitution. In indulging this fancy, however, they undoubtedly overrate the legal, and perhaps also the moral effect of such superlative fastidiousness; for even if there were “no propriety” in the interference of the general government to maintain a republican form of government in the States, still, the unequivocal pledge to that effect, given in the constitution, would nevertheless remain an irresistible rebutter to the allegation that the constitution intended to guaranty its opposite, slavery, an oligarchy, or a despotism. It would, therefore, entirely forbid all those inferences and implications, drawn by slaveholders, from those other phrases, which they quote as guaranties of slavery.*

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But the “propriety,” and not only the propriety, but the necessity of this guaranty, may be maintained on still other grounds.

One of these grounds is, that it would be impossible, consistently with the other provisions of the constitution, that the general government itself could be republican, unless the State governments were republican also. For example. The constitution provides, in regard to the choice of congressional representatives, that “the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislature.” It was indispensable to the internal quiet of each State, that the same body of electors, who should participate in the suffrage of the State governments, should participate also in the suffrage of the national one—and vice versa, that those who should participate in the national suffrage, should also participate in that of the State. If the general and State constitutions had each a different body of electors within each State, it would obviously give rise at once to implacable and irreconcilable feuds, that would result in the overthrow of one or the other of the governments within the State. Harmony or inveterate conflict was the only alternative. As conflict would necessarily result in the destruction of one of the governments, harmony was the only mode by which both could be preserved. And this harmony could be secured only by giving to the same body of electors, suffrage in both the governments.

If, then, it was indispensable to the existence and authority of both governments, within the territory of each State, that the same body, and only the same body of electors, that were represented in one of the governments, should be represented in the other, it was clearly indispensable, in order that the national one should be republican, that the State governments should be republican also. Hence the interest which the nation at large have in the republicanism of each of the State governments.

It being necessary that the suffrage under the national government, within each State, should be the same as for the State government, it is apparent that unless the several State governments were all formed on one general plan, or unless the electors of all the States were united in the acknowledgment of some general controlling principle, applicable to both governments, it would be impossible that they could unite in the maintenance of a general government that should act in harmony with the State governments; because the same body of electors, that should support [109] a despotic government in the State, could not consistently or cordially unite, or even unite at all, in the support of a republican government for the nation. If one portion of the State governments should be republican, like Vermont, where suffrage is open to all—and another portion should be oligarchies, like South Carolina, and the other slave States—another portion limited monarchies, like England—another portion ecclesiastical, like that of the Pope of Rome, or that of the ancient Jews—and another portion absolute despotisms, like that of Nicholas, in Russia, or that of Francia, in Paraguay,—and the same body, and only the same body, of electors, that sustained each of these governments at home, should be represented in the national government, each State would send into the national legislature the representatives of its own peculiar system of government; and the national legislature, instead of being composed of the representatives of any one theory, or principle of government, would be made up of the representatives of all the various theories of government that prevailed in the different States—from the extreme of democracy to the extreme of despotism. And each of these various representatives would be obliged to carry his local principles into the national legislature, else he could not retain the confidence of his peculiar constituents. The consequence would be, that the national legislature would present the spectacle of a perfect Babel of discordant tongues, elements, passions, interests and purposes, instead of an assembly, united for the accomplishment of any agreed or distinct object.

Without some distinct and agreed object as a bond of union, it would obviously be impracticable for any general union of the whole people to subsist; and that bond of union, whatever it be, must also harmonize with the principles of each of the State governments, else there would be a collision between the general and state governments.

Now the great bond of union, agreed upon in the general government, was “the rights of man”—expressed in the national constitution by the terms “liberty and justice.” What other bond could have been agreed upon? On what other principle of government could they all have united? Could they have united to sustain the divine right of kings? The feudal privileges of nobles? Or the supremacy of the Christian, Mahometan, or any other church? No. They all denied the divine right of kings, and the feudal rights of nobles; and they were of all creeds in [110] religion. But they were agreed that all men had certain natural, inherent, essential and inalienable rights, among which were life, liberty, and the pursuit of happiness; and that the preservation of these rights was the legitimate purpose of governments among men. They had avowed this principle before the world, had fought for it, and successfully defended it, against the mightiest power in the world. They had filled the world with its glory; and it, in turn, had filled the world with theirs. It had also gathered, and was then gathering, choice spirits, and large numbers of the oppressed from other nations unto them. And this principle—in which were involved the safety, interests and rights of each and every one of “the people,” who were to unite for the formation of the government—now furnished a bond of union, that was at once sufficient, legitimate, consistent, honorable, of universal application, and having more general power over the hearts and heads of all of them, than any other that could be found to hold them together. It comported with their theory of the true objects of government. This principle, therefore, they adopted as the corner-stone of their national government; and, as a matter of necessity, all other things, on which this new government was in any degree to depend, or which was to depend in any degree upon this government, were then made to conform to this principle. Hence the propriety of the power given to the general government, of “guarantying to every State in the Union a republican form of government.” Had not this power been given to the general government, the majorities in each State might have converted the State governments into oligarchies, aristocracies, monarchies or despotisms, that should not only have trampled upon the minorities, and defeated their enjoyment of the national constitution, but also introduced such factions and feuds into the national government as would have distracted its councils, and prostrated its power.

But there were also motives of a pecuniary and social, as well as political nature, that made it proper that the nation should guaranty to the States a republican form of government.

Commerce was to be established between the people of the different States. The commerce of a free people is many times more valuable than that of slaves. Freemen produce and consume vastly more than slaves. They have therefore more to buy and more to sell. Hence the free States have a direct pecuniary interest in the civil freedom of all the other States. Commerce [111] between free and slave states is not reciprocal or equal. Who can measure the increase that would have been made to the industry and prosperity of the free States, if all the slaves in the country had been freemen, with all the wants and energies of freemen? And their masters had had all the thrift, industry and enterprise of men who depend upon their own labor, instead of the labor of slaves, for their prosperity? Great Britain thought it policy to carry on a seven years’ war against us principally to secure to herself the control and benefits of the commerce of three millions of people and their posterity. But we now have nearly or quite the same number of slaves within our borders, and yet we think that commerce with them and their posterity is a matter with which we have no concern; that there is “no propriety” in that provision of the national constitution, which requires that the general government—which we have invested with the exclusive control of all commerce among the several States—should secure to these three millions the right of traffic with their fellow-men, and to their fellow-men the right of traffic with them, against the impertinent usurpations and tyranny of subordinate governments, that have no constitutional right to interfere in the matter.

Again. The slave States, in proportion to their population, contribute nothing like an equal or equitable share to the aggregate of national wealth. It would probably be within the truth to say that, in proportion to numbers, the people of the free States have contributed ten times as much to the national wealth as the people of the slave States. Even for such wealth as the culture of their great staple, cotton, has added to the nation, the south are indebted principally, if not entirely, to the inventive genius of a single northern man.* The agriculture of the slave States is carried on with rude and clumsy implements; by listless, spiritless and thriftless laborers; and in a manner speedily to wear out the natural fertility of the soil, which fertility slave cultivation seldom or never replaces. The mechanic arts are comparatively dead among them. Invention is utterly dormant. It is doubtful whether either a slave or a slave holder has ever invented a single important article of labor-saving machinery since the foundation of the government. And they have hardly had the skill or enterprise to apply any of those invented by others. Who can estimate the loss of wealth to the nation from these causes alone? Yet we [112] of the free States give to the south a share in the incalculable wealth produced by our inventions and labor-saving machinery, our steam engines, and cotton gins, and manufacturing machinery of all sorts, and yet say at the same time that we have no interest, and that there is “no propriety” in the constitutional guaranty of that personal freedom to the people of the south, which would enable them to return us some equivalent in kind.

For the want, too, of an enforcement of this guaranty of a republican form of government to each of the States, the population of the country, by the immigration of foreigners, has no doubt been greatly hindered. Multitudes almost innumerable, who would have come here, either from a love of liberty, or to better their conditions, and given the country the benefit of their talents, industry and wealth, have no doubt been dissuaded or deterred by the hideous tyranny that rides triumphant in one half of the nation, and extends its pestiferous and detested influence over the other half.

Socially, also, we have an interest in the freedom of all the States. We have an interest in free personal intercourse with all the people living under a common government with ourselves. We wish to be free to discuss, with any and all of them, all the principles of liberty and all the interests of humanity. We wish, when we meet a fellow-man, to be at liberty to speak freely with him of his and our condition; to be at liberty to do him a service; to advise with him as to the means of improving his condition; and, if need be, to ask a kindness at his hands. But all these things are incompatible with slavery. Is this such a union as we bargained for? Was it “nominated in the bond,” that we should be cut off from these the common rights of human nature? If so, point to the line and letter, where it is so written. Neither of them are to be found. But the contrary is expressly guarantied against the power of both the governments, state and national; for the national government is prohibited from passing any law abridging the freedom of speech and the press, and the state governments are prohibited from maintaining any other than a republican form of government, which of course implies the same freedom.

The nation at large have still another interest in the republicanism of each of the States; an interest, too, that is indicated in the same section in which this republicanism is guarantied. This interest results from the fact that the nation are pledged to “proect” [113] each of the States “against domestic violence.” Was there no account taken—in reference either to the cost or the principle of this undertaking—as to what might be the character of the State governments, which we are thus pledged to defend against the risings of the people? Did we covenant, in this clause, to wage war against the rights of man? Did we pledge ourselves that those, however few, who might ever succeed in getting the government of a State into their hands, should thenceforth be recognized as the legitimate power of the State, and be entitled to the whole force of the general government to aid them in subjecting the remainder of the people to the degradation and injustice of slavery? Or did the nation undertake only to guaranty the preservation of “a republican form of government” against the violence of those who might prove its enemies? The reason of the thing, and the connexion, in which the two provisions stand in the constitution, give the answer.

We have yet another interest still, and that no trivial one, in the republicanism of the State governments; an interest indicated, too, like the one last mentioned, in the very section in which this republicanism is assured. It relates to the defence against invasion. The general government is pledged to defend each of the States against invasion. Is it a thing of no moment, whether we have given such a pledge to free or to slave States? Is there no difference in the cost and hazard of defending one or the other? Is it of no consequence to the expense of life and money, involved in this undertaking, whether the people of the State invaded shall be united, as freemen naturally will be, as one man against the enemy? Or whether, as in slave States, half of them shall be burning to join the enemy, with the purpose of satisfying with blood the long account of wrong that shall have accrued against their oppressors? Did Massachusetts—who during the war of the revolution furnished more men for the common defence, than all the six southern States together—did she, immediately on the close of that war, pledge herself, as the slave holders would have it, that she would lavish her life in like manner again, for the defence of those whose wickedness and tyranny in peace should necessarily multiply their enemies and make them defenceless in war? If so, on what principle, or for what equivalent, did she do it? Did she not rather take care that the guaranty for a republican government should be inserted in the same paragraph with that for protection against invasion, in order that both the principle [114] and the extent of the liability she incurred, might distinctly appear.

The nation at large, then, as a political community under the constitution, have both interests and rights, and both of the most vital character, in the republicanism of each of the State governments. The guaranty given by the national constitution, securing such a government to each of the States, is therefore neither officious nor impertinent. On the contrary, this guaranty was a sine qua non to any rational contract of union; and the enforcement of it is equally indispensable, if not to the continuance of the union at all, certainly to its continuance on any terms that are either safe, honorable or equitable for the north.

This guaranty, then, is not idle verbiage. It is full of meaning. And that meaning is not only fatal to slavery itself, but it is fatal also to all those pretences, constructions, surmises and implications, by which it is claimed that the national constitution sanctions, legalizes, or even tolerates slavery.

CHAPTER IX.: THE INTENTIONS OF THE CONVENTION.

The intentions of the framers of the constitution, (if we could have, as we cannot, any legal knowledge of them, except from the words of the constitution,) have nothing to do with fixing the legal meaning of the constitution. That convention were not delegated to adopt or establish a constitution; but only to consult, devise and recommend. The instrument, when it came from their hands, was a mere proposal, having no legal force or authority. It finally derived all its validity and obligation, as a frame of government, from its adoption by the people at large.* Of course the intentions of the people at large are the only ones, that are of any importance to be regarded in determining the legal meaning of the instrument. And their intentions are to be gathered entirely from the words, which they adopted to express them. And their intentions must be presumed to be just what, and only what the words of the instrument legally express. In adopting the constitution, [115] the people acted as legislators, in the highest sense in which that word can be applied to human lawgivers. They were establishing a law that was to govern both themselves and their government. And their intentions, like those of other legislators, are to be gathered from the words of their enactments. Such is the dictate of both law and common sense.* The instrument had [116] been reported by their committee, the convention. But the people did not ask this committee what was the legal meaning of the instrument reported. They adopted it, judging for themselves of its legal meaning, as any other legislative body would have done. The people at large had not even an opportunity of consultation with the members of the convention, to ascertain their opinions. And even if they had consulted them, they would not have been bound at all by their opinions. But being unable to consult them, they were compelled to adopt or reject the instrument, on their own judgment of its meaning, without any reference to the opinions of the convention. The instrument, therefore, is now to be regarded as expressing the intentions of the people at large; and not the intentions of the convention, if the convention had any intentions differing from the meaning which the law gives to the words of the instrument.

But why do the partisans of slavery resort to the debates of the convention for evidence that the constitution sanctions slavery? Plainly for no other reason than because the words of the instrument do not sanction it. But can the intentions of that convention, attested only by a mere skeleton of its debates, and not by any impress upon the instrument itself, add anything to the words, or to the legal meaning of the words of the constitution? Plainly not. Their intentions are of no more consequence, in a legal point of view, than the intentions of any other equal number of the then voters of the country. Besides, as members of the convention, they were not even parties to the instrument; and no evidence of their intentions, at that time, is applicable to the case. They became parties to it only by joining with the rest of the people in its subsequent adoption; and they themselves, equally with the rest of the people, must then be presumed to have adopted its legal meaning, and that alone—notwithstanding anything they may have previously said. What absurdity then is it to set up the opinions expressed in the convention, and by a few only of its members, in opposition to the opinions expressed by the whole people of the country, in the constitution itself.

But notwithstanding the opinions expressed in the convention by some of the members, we are bound, as a matter of law, to presume that the convention itself, in the aggregate, had no intention of sanctioning slavery—and why? Because, after all their debates, they agreed upon an instrument that did not sanction it. This was confessedly the result in which all their debates terminated. [117] This instrument is also the only authentic evidence of their intentions. It is subsequent in its date to all the other evidence. It comes to us, also, as none of the other evidence does, signed with their own hands. And is this to be set aside, and the constitution itself to be impeached and destroyed, and free government overturned, on the authority of a few meagre snatches of argument, intent or opinion, uttered by a few only of the members; jotted down by one of them, (Mr. Madison,) merely for his own convenience, or from the suggestions of his own mind; and only reported to us fifty years afterwards by a posthumous publication of his papers? If anything could excite the utter contempt of the people of this nation for the miserable subterfuges, to which the advocates of slavery resort, it would seem that their offering such evidence as this in support of their cause, must do it. And yet these, and such as these mere fragments of evidence, all utterly inadmissible and worthless in their kind, for any legal purpose, constitute the warp and the woof, the very sine qua non of the whole argument for slavery.

Did Mr. Madison, when he took his oath of office, as President of the United States, swear to support these scraps of debate, which he had filed away among his private papers?—Or did he swear to support that written instrument, which the people of the country had agreed to, and which was known to them, and to all the world, as the constitution of the United States?*

[118]

But even if the unexpressed intentions, which these notes of debate ascribed to certain members, had been participated in by the whole convention, we should have had no right to hold the people of the country at large responsible for them. This convention sat with closed doors, and it was not until near fifty years after the people had adopted the constitution itself, that these private intentions of the framers authentically transpired. And even now all the evidence disclosed implicates, directly and absolutely, but few of the members—not even all from the slaveholding states. The intentions of all the rest, we have a right to presume, concurred with their votes and the words of the instrument; and they had therefore no occasion to express contrary ones in debate.

But suppose that all the members of the convention had participated in these intentions—what then? Any forty or fifty men, like those who framed the constitution, may now secretly concoct another, that is honest in its terms, and yet in secret conclave confess to each other the criminal objects they intended to accomplish by it, if its honest character should enable them to secure for it the adoption of the people.—But if the people should adopt such constitution, would they thereby adopt any of the criminal and secret purposes of its authors? Or if the guilty confessions of these conspirators should be revealed fifty years afterwards, would judicial tribunals look to them as giving the government any authority for violating the legal meaning of the words of such constitution, and for so construing them as to subserve the criminal and shameless purpose of its originators?

The members of the convention, as such, were the mere scriveners of the constitution; and their individual purposes, opinions [119] or expressions, then uttered in secret cabal, though now revealed, can no more be evidence of the intentions of the people who adopted the constitution, than the secret opinions or expressions of the scriveners of any other contract can be offered to prove the intentions of the true parties to such contract. As framers of the constitution, the members of the convention gave to it no validity, meaning, or legal force. They simply drafted it, and offered it, such as it legally might be, to the people for their adoption or rejection. The people, therefore, in adopting it, had no reference whatever to the opinions of the convention. They had no authentic evidence of what those opinions were. They looked simply at the instrument. And they adopted even its legal meaning by a bare majority. If the instrument had contained any tangible sanction of slavery, the people, in some parts of the country certainly, would sooner have had it burned by the hands of the common hangman, than they would have adopted it, and thus sold themselves as pimps to slavery, covered as they were with the scars they had received in fighting the battles of freedom. And the members of the convention knew that such was the feeling of a large portion of the people; and for that reason, if for no other, they dared insert in the instrument no legal sanction of slavery. They chose rather to trust to their craft and influence to corrupt the government, (of which they themselves expected to be important members,) after the constitution should have been adopted, rather than ask the necessary authority directly from the people. And the success they have had in corrupting the government, proves that they judged rightly in presuming that the government would be more flexible than the people.

For other reasons, too, the people should not be charged with designing to sanction any of the secret intentions of the convention. When the States sent delegates to the convention, no avowal was made of any intention to give any national sanction to slavery. The articles of confederation had given none; the then existing State constitutions gave none; and it could not have been reasonably anticipated by the people that any would have been either asked for or granted in the new constitution. If such a purpose had been avowed by those who were at the bottom of the movement, the convention would doubtless never have been held. The avowed objects of the convention were of a totally different character. Commercial, industrial and defensive motives were the prominent ones avowed. When, then, the constitution came from [120] the hands of such a convention, unstained with any legal or tangible sanction of slavery, were the people—who, from the nature of the case, could not assemble to draft one for themselves—bound either to discard it, or hold themselves responsible for all the secret intentions of those who had drafted it? Had they no power to adopt its legal meaning, and that alone? Unquestionably they had the power; and, as a matter of law, as well as fact, it is equally unquestionable that they exercised it. Nothing else than the constitution, as a legal instrument, was offered to them for their adoption. Nothing else was legally before them that they could adopt. Nothing else, therefore, did they adopt.

This alleged design, on the part of the convention, to sanction slavery, is obviously of no consequence whatever, unless it can be transferred to the people who adopted the constitution. Has any such transfer ever been shown? Nothing of the kind. It may have been known among politicians, and may have found its way into some of the State conventions. But there probably is not a tittle of evidence in existence, that it was generally known among the mass of the people. And, in the nature of things, it was nearly impossible that it should have been known by them. The national convention had sat with closed doors. Nothing was known of their discussions, except what was personally reported by the members. Even the discussions in the State conventions could not have been known to the people at large; certainly not until after the constitution had been ratified by those conventions. The ratification of the instrument, by those conventions, followed close on the heels of their discussions.—The population meanwhile was thinly scattered over the country. The public papers were few, and small, and far between. They could not even make such reports of the discussions of public bodies, as newspapers now do. The consequence must have been that the people at large knew nothing of the intentions of the framers of the constitution, but from its words, until after it was adopted. Nevertheless, it is to be constantly borne in mind, that even if the people had been fully cognizant of those intentions, they would not therefore have adopted them, or become at all responsible for them, so long as the intentions themselves were not incorporated in the instrument. Many selfish, ambitious and criminal purposes, not expressed in the constitution, were undoubtedly intended to be accomplished by one and another of the thousands of unprincipled politicians, that would naturally swarm around the birth-place [121] and assist at the nativity of a new and splendid government. But the people are not therefore responsible for those purposes; nor are those purposes, therefore, a part of the constitution; nor is its language to be construed with any view to aid their accomplishment.

But even if the people intended to sanction slavery by adopting the intentions of the convention, it is obvious that they, like the convention, intended to use no language that should legally convey that meaning, or that should necessarily convict them of that intention in the eyes of the world.—They, at least, had enough of virtuous shame to induce them to conceal this intention under the cover of language, whose legal meaning would enable them always to aver,

“Thou canst not say I did it.”

The intention, therefore, that the judiciary should construe certain language into an authority for slavery, when such is not the legal meaning of the language itself, cannot be ascribed to the people, except upon the supposition that the people presumed their judicial tribunals would have so much less of shame than they themselves, as to volunteer to carry out these their secret wishes, by going beyond the words of the constitution they should be sworn to support, and violating all legal rules of construction, and all the free principles of the instrument. It is true that the judiciary, (whether the people intended it or not,) have proved themselves to be thus much, at least, more shameless than the people, or the convention. Yet that is not what ought to have been expected of judicial tribunals. And whether such were really the intention of the convention, or the people, is, at best a matter of conjecture and history, and not of law, nor of any evidence cognizable by any judicial tribunal.

Why should we search at all for the intentions, either of the convention, or of the people, beyond the words which both the convention and the people have agreed upon to express them? What is the object of written constitutions, and written statutes, and written contracts? Is it not that the meaning of those who make them may be known with the most absolute precision of which language is capable? Is it not to get rid of all the fraud, and uncertainty, and disagreements of oral testimony? Where would be our constitution, if, instead of its being a written instiument, it had been merely agreed upon orally by the members of the convention? And by them only orally reported to the people? And [122] only this oral report of it had been adopted by the people? And all our evidence of what it really was, had rested upon reports of what Mr. A. and B., members of the convention, had been heard to say? Or upon Mr. Madison’s notes of the debates of the convention? Or upon the oral reports made by the several members to their respective constituents, or to the respective State conventions? Or upon flying reports of the opinions which a few individuals, out of the whole body of the people, had formed of it when they adopted it? No two of the members of the convention would probably have agreed in their representations of what the constitution really was. No two of the people would have agreed in their understanding of the constitution when they adopted it. And the consequence would have been that we should really have had no constitution at all. Yet there is as much ground, both in reason and in law, for thus throwing aside the whote of the written instrument, and trusting entirely to these other sources for evidence of what any part of the constitution really is, as there is for throwing aside those particular portions of the written instrument, which bear on slavery, and attempting to supply their place from such evidence as these other sources may chance to furnish. And yet, to throw aside the written instrument, so far as its provisions are prohibitory of slavery, and make a new constitution on that point, out of other testimony, is the only means, confessedly the only means, by which slavery can be made constitutional.

And what is the object of resorting to these flying reports for evidence, on which to change the meaning of the constitution? Is it to change the instrument from a dishonest to an honest one? from an unjust to a just one? No. But directly the reverse—and solely that dishonesty and injustice may be carried into effect. A purpose, for which no evidence of any kind whatever could be admitted in a court of justice.

Again. If the principle be admitted, that the meaning of the constitution can be changed, on proof being made that the scriveners or framers of it had secret and knavish intentions, which do not appear on the face of the instrument, then perfect license is given to the scriveners of constitutions to contrive any secret scheme of villany they may please, and impose it upon the people as a system of government, under cover of a written instrument that is so plainly honest and just in its terms, that the people readily agree to it. Is such a principle to be admitted in a [123] country where the people claim the prerogative of establishing their own government, and deny the right of anybody to impose a government upon them, either by force, or fraud, or against their will?

Finally. The constitution is a contract; a written contract, consisting of a certain number of precise words, to which, and to which only, all the parties to it have, in theory, agreed. Manifestly neither this contract, nor the meaning of its words, can be changed, without the consent of all the parties to it. Nor can it be changed on a representation, to be made by any number of them less than the whole, that they intended anything different from what they have said. To change it, on the representation of a part, without the consent of the rest, would be a breach of contract as to all the rest. And to change its legal meaning, without their consent, would be as much a breach of the contract, as to change its words. If there were a single honest man in the nation, who assented, in good faith, to the honest and legal meaning of the constitution, it would be unjust and unlawful towards him to change the meaning of the instrument so as to sanction slavery, even though every other man in the nation should testify that, in agreeing to the constitution, he intended that slavery should be sanctioned. If there were not a single honest man in the nation, who adopted the constitution in good faith, and with the intent that its legal meaning should be carried into effect, its legal meaning would nevertheless remain the same; for no judicial tribunal could lawfully allow the parties to it to come into court and allege their dishonest intentions, and claim that they be substituted for the legal meaning of the words of the instrument.

CHAPTER X.: THE PRACTICE OF THE GOVERNMENT.

The practice of the government, under the constitution, has not altered the legal meaning of the instrument. It means now what it did before it was ratified, when it was first offered to the people for their adoption or rejection. One of the advantages of a written constitution is, that it enables the people to see what its character is before they adopt it; and another is, that it enables them to see [124] after they have adopted it, whether the government adheres to it, or departs from it. Both these advantages, each of which is indispensable to liberty, would be entirely forfeited, if the legal meaning of a written constitution were one thing when the instrument was offered to the people for their adoption, and could then be made another thing by the government after the people had adopted it.

It is of no consequence, therefore, what meaning the government have placed upon the instrument; but only what meaning they were bound to place upon it from the beginning.

The only question, then, to be decided, is, what was the meaning of the constitution, as a legal instrument, when it was first drawn up, and presented to the people, and before it was adopted by them?

To this question there certainly can be but one answer. There is not room for a doubt or an argument, on that point, in favor of slavery. The instrument itself is palpably a free one throughout, in its language, its principles, and all its provisions. As a legal instrument, there is no trace of slavery in it. It not only does not sanction slavery, but it does not even recognize its existence. More than this, it is palpably and wholly incompatible with slavery. It is also the supreme law of the land, in contempt of any State constitution or law that should attempt to establish slavery.

Such was the character of the constitution when it was offered to the people, and before it was adopted. And if such was its character then, such is its character still. It cannot have been changed by all the errors and perversions, intentional or unintentional, of which the government may have since been guilty.

CHAPTER XI.: THE UNDERSTANDING OF THE PEOPLE.

Although the inquiry may be of no legal importance, it may nevertheless be one pertinent to the subject, whether it be matter of history even—to say nothing of legal proof—that the people of the country did really understand or believe that the constitution sanctioned slavery? Those who make the assertion are [125] bound to prove it. The presumption is against them. Where is their contrary history?

They will say that a part of the people were actually slaveholders, and that it is unreasonable to suppose they would have agreed to the constitution, if they had understood it to be a free one.

The answer to this argument is, that the actual slaveholders were few in number compared with the whole people; comprising probably not more than one eighth or one sixth of the voters, and one fortieth or one thirtieth of the whole population. They were so few as to be manifestly incapable of maintaining any separate political organization; or even of holding their slave property, except under the sufferance, toleration and protection of the non-slaveholders. They were compelled, therefore, to agree to any political organization, which the non-slaveholders should determine on. This was at that time the case even in the strongest of the slaveholding States themselves. In all of them, without exception, the slaveholders were either obliged to live, or from choice did live, under free constitutions. They, of course, held their slave property in defiance of their constitutions. They were enabled to do this through the corrupting influence of their wealth and union. Controlling a large proportion of the wealth of their States, their social and political influence was entirely disproportionate to their numbers. They could act in concert. They could purchase talent by honors, offices and money. Being always united, while the non-slaveholders were divided, they could turn the scale in elections, and fill most of the offices with slaveholders. Many of the non-slaveholders doubtless were poor, dependent and subservient, (as large portions of the non-slaveholders are now in the slaveholding States,) and lent themselves to the support of slavery almost from necessity. By these, and probably by many other influences that we cannot now understand, they were enabled to maintain their hold upon their slave property in defiance of their constitutions. It is even possible that the slaveholders themselves did not choose to have the subject of slavery mentioned in their constitutions; that they were so fully conscious of their power to corrupt and control their governments, that they did not regard any constitutional provision necessary for their security; and that out of mere shame at the criminality of the thing, and its inconsistency with all the princip es the country had been fighting for and proclaiming, they did not wish it to be named.

[126]

But whatever may have been the cause of the fact, the fact itself is conspicuous, that from some cause or other, either with the consent of the slaveholders, or in defiance of their power, the constitutions of every one of the thirteen States were at that time free ones.

Now is it not idle and useless to pretend, when even the strongest slaveholding States had free constitutions—when not one of the separate States, acting for itself, would have any but a free constitution—that the whole thirteen, when acting in unison, should concur in establishing a slaveholding one? The idea is preposterous. The single fact that all the State constitutions were at that time free ones, scatters forever the pretence that the majority of the people of all the States either intended to establish, or could have been induced to establish, any other than a free one for the nation. Of course it scatters also the pretence that they believed or understood that they were establishing any but a free one.

There very probably may have been a general belief among the people, that slavery would for a while live on, on sufferance; that the government, until the nation should have become attached to the constitution, and cemented and consolidated by the habit of union, would be too weak, and too easily corrupted by the innumerable and powerful appliances of slaveholders, to wrestle with and strangle slavery. But to suppose that the nation at large did not look upon the constitution as destined to destroy slavery, whenever its principles should be carried into full effect, is obviously to suppose an intellectual impossibility; for the instrument was plain, and the people had common sense; and those two facts cannot stand together consistently with the idea that there was any general, or even any considerable misunderstanding of its meaning.

CHAPTER XII.: THE STATE CONSTITUTIONS OF 1845.

Of all the State constitutions existing at this time, 1845, (excepting that of Florida, which I have not seen,) not one of them contains provisions that are sufficient, (or that would be sufficient [127] if not restrained by the constitution of the United States,) to authorize the slavery that exists in the States. The material deficiency in all of them is, that they neither designate, nor give the legislatures any authority to designate the persons, who may be made slaves. Without such a provision, all their other provisions in regard to slaves are nugatory, simply because their application is legally unknown. They would apply as well to whites as to blacks, and would as much authorize the enslavement of whites as of blacks.

We have before seen that none of the State constitutions, that were in existence in 1789, recognized slavery at all. Since that time, four of the old thirteen States, viz., Maryland, North Carolina, South Carolina and Georgia, have altered their constitutions so as to make them recognize slavery; yet not so as to provide for any legal designation of the persons to be made slaves.

The constitution of South Carolina has a provision that implies that some of the slaves, at least, are “negroes;” but not that all slaves are negroes, nor that all negroes are slaves. The provision, therefore, amounts to nothing for the purposes of a constitutional designation of the persons who may be made slaves.

The constitutions of Tennessee and Louisiana make no direct mention of slaves; and have no provisions in favor of slavery, unless the general one for continuing existing laws in force, be such an one. But both have specific provisions inconsistent with slavery. Both purport to be established by “the people;” both have provisions for the writ of habeas corpus. Indeed, the constitutions of most of the slave States have provisions for this writ, which, as has been before shown, denies the right of property in man. That of Tennessee declares also “that all courts shall be open, and every man, for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.” Tennessee also was formerly a part of North Carolina; was set off from her while the constitution of North Carolina was a free one. Of course there has never been any legal slavery in Tennessee.

The constitutions of the States of Kentucky, Missouri, Arkansas, Mississippi, and Alabama, all have provisions about slaves; yet none of them tell us who may be slaves. Some of them indeed provide for the admission into their State of such persons as are slaves under the laws, (which of course means only the [128] constitutional laws,) of other States. But when we go to those other States, we find that their constitutions have made no designation of the persons who may be made slaves; and therefore we are as far from finding the actual persons of the slaves as we were before.

The principal provision, in the several State constitutions, recognizing slavery, is, in substance, this, that the legislature shall have no power to emancipate slaves without the consent of their owners, or without making compensation. But this provision is of no avail to legalize slavery, for slavery must be constitutionally established, before there can be any legal slaves to be emancipated; and it cannot be established without describing the persons who may be made slaves.

Kentucky was originally a part of Virginia, and derived her slaves from Virginia. As the constitution of Virginia was always a free one, it gave no authority for slavery in that part of the State which is now Kentucky. Of course Kentucky never had any legal slavery.

Slavery was positively prohibited in all the States included in the Louisiana purchase, by the third article of the treaty of cession—which is in these words:—

Art. 3. “The inhabitants” (that is, all the inhabitants,) “of the ceded territory shall be incorporated in the Union of the United States, and admitted as soon as possible, according to the principles of the federal constitution, to the enjoyment of all the rights, advantages, and immunities of citizens of the United States; and, in the mean time, they shall be maintained and protected in the free enjoyment of their liberty, property, and the religion which they profess.”

The cession of Florida to the United States was made on the same terms. The words of the treaty, on this point are as follows:—

“Art. 6. The inhabitants of the territories, which his Catholic majesty cedes to the United States by this treaty, shall be incorporated in the Union of the United States, as soon as may be consistent with the principles of the federal constitution, and admitted to the enjoyment of all the privileges, rights and immunities of the citizens of the United States.”

To allow any of the “inhabitants,” included in those treaties, to be held as slaves, or denied the rights of citizenship under the United States constitution, is a plain breach of the treaties.

[129]

The constitutions of some of the slave States have provisions like this, viz., that all laws previously in force, shall remain in force until repealed, unless repugnant to this constitution. But I think there is no instance, in which the slave acts, then on their statute books, could be perpetuated by this provision—and for two reasons; 1st. These slave acts were previously unconstitutional, and therefore were not, legally speaking, “laws in force.”* 2d. Every constitution, I think, that has this provision, has one or more other provisions that are “repugnant” to the slave acts.

CHAPTER XIII.: THE CHILDREN OF SLAVES ARE BORN FREE.

The idea that the children of slaves are necessarily born slaves, or that they necessarily follow that natural law of property, which gives the natural increase of property to the owner of the original stock, is an erroneous one.

It is a principle of natural law in regard to property, that a calf belongs to the owner of the cow that bore it; fruit to the owner of the tree or vine on which it grew; and so on. But the principle of natural law, which makes a calf belong to the owner of the cow, does not make the child of a slave belong to the owner of the slave—and why? Simply because both cow and calf are naturally subjects of property; while neither men nor children are naturally subjects of property. The law of nature gives no aid to anything inconsistent with itself. It therefore gives no aid to the transmission of property in man—while it does give aid to the transmission of property in other animals and in things.

Brute animals and things being naturally subjects of property, there are obvious reasons why the natural increase should belong to the owner of the original stock. But men, not being naturally subjects of property, the law of nature will not transmit any right of property acquired in violation of her own authority. The law [130] of nature denies all rights not derived from herself. Of course she cannot perpetuate or transmit such rights—if rights they can be called.

One important reason why a calf belongs to the owner of the cow that bore it, is, that there is no principle of natural law that can be opposed to that ownership. For the calf is naturally a subject of property, and if it were not given to the owner of the cow, it would be lawful for any other person to assume the ownership. No wrong would be done to the animal by so doing. But as man is not naturally a subject of property, and as each separate individual is, on principles of natural law, entitled to the control of his own person, it is as much a wrong, and as much a violation of natural law, to make a slave of the child of a slave, as to make a slave of any other person. The natural rights of the child to the control of his own person, rise up, from the moment of his birth, in opposition to the transmission to him of any ownership, which, in violation of natural law, has been asserted to the parent.

Natural law may be overborne by arbitrary institutions; but she will never aid or perpetuate them. For her to do so, would be to resist, and even deny her own authority. It would present the case of a principle warring against and overcoming itself. Instead of this, she asserts her own authority on the first opportunity. The moment the arbitrary law expires by its own limitation, natural law resumes her reign. If, therefore, the government declare A to be a slave, natural law may be practically overborne by this arbitrary authority; but she will not herself perpetuate it beyond the person of A—for that would be acting in contradiction to herself.—She will therefore suffer this arbitrary authority to expend itself on the person of A, according to the letter of the arbitrary law: but she will assert her own authority in favor of the child of A, to whom the letter of the law enslaving A, does not apply.

Slavery is a wrong to each individual enslaved; and not merely to the first of a series. Natural law, therefore, as much forbids the enslaving of the child, as if the wrong of enslaving the parent had never been perpetrated.

Slavery, then, is an arbitrary institution throughout. It depends from first to last, upon the letter of the arbitrary law. Natural law gives it no aid, no extension, no new application, under any circumstances whatever. Unless, therefore, the letter of the arbitrary [131] law explicitly authorize the enslavement of the child, the child is born free, though the parent were a slave.

If the views that have already been taken of our written constitutions, be correct, no parent has ever yet been legally enslaved in this country; and of course no child. If, however, any one thinks he can place his finger upon any constitutional law, that has enslaved a parent, let him follow that law, and see whether it also expressly authorized the enslavement of the child. If it did not, the child would be free.

It is no new principle that the child of a slave would be born free, but for an express law to the contrary. Some of the slave codes admit the principle—for they have special provisions that the child shall follow the condition of the mother; thus virtually admitting that, but for such a provision, the child would be free, though the mother were a slave.

Under the constitutions of the States and the United States, it requires as explicit and plenary constitutional authority, to make slaves of the children of slaves, as it would to make slaves of anybody else. Is there, in any of the constitutions of this country, any general authority given to the governments, to make slaves of whom they please? No one will pretend it. Is there, then, any particular authority for making slaves of the children of those, who have previously been held in slavery? If there be, let the advocates of slavery point it out. If there be no such authority all their statutes declaring that the children of slaves shall follow the condition of their mothers, are unconstitutional and void; and those children are free by force of the law of nature.

This law of nature, that all men are born free, was recognized by this country in the Declaration of Independence. But it was no new principle then. Justinian says, “Captivity and servitude are both contrary to the law of nature; for by that law all men are born free.” But the principle was not new with Justinian; it exists in the nature of man, and is as old as man—and the race of man generally has acknowledged it. The exceptions have been special; the rule general.

The constitution of the United States recognizes the principle that all men are born free; for it recognizes the principle that natural birth in the country gives citizenship*—which of course [132] implies freedom. And no exception is made to the rule. Of course all born in the country since the adoption of the constitution of the United States, have been born free, whether there were, or were not any legal slaves in the country before that time.

Even the provisions, in the several State constitutions, that the legislatures shall not emancipate slaves, would, if allowed their full effect, unrestrained by the constitution of the United States, hold in slavery only those who were then slaves; it would do nothing towards enslaving their children, and would give the legislatures no authority to enslave them.

It is clear, therefore, that, on this principle alone, slavery would now be extinct in this country, unless there should be an exception of a few aged persons.

Endnotes

*

It is obvious that legislation can have, in this country, no higher or other authority, than that which results from natural law, and the obligation of contracts; for our constitutions are but contracts, and the legislation they authorize can of course have no other or higher authority than the constitutions themselves. The stream cannot rise higher than the fountain. The idea, therefore, of any inherent authority or sovereignty in our governments, as governments, or of any inherent right in the majority to restrain individuals, by arbitrary enactments, from the exercise of any of their natural rights, is as sheer an imposture as the idea of the divine right of kings to reign, or any other of the doctrines on which arbitrary governments have been founded. And the idea of any necessary or inherent authority in legislation, as such, is, of course, equally an imposture. If legislation be consistent with natural justice, and the natural or intrinsic obligation of the contract of government, it is obligatory: if not, not.

*

The mass of men are so much accustomed to regard law as an arbitrary command of those who administer political power, that the idea of its being a natural, fixed, and immutable principle, may perhaps want some other support than that of the reasoning already given, to commend it to their adoption. I therefore give them the following corroborations from sources of the highest authority.

“Jurisprudence is the science of what is just and unjust.”—Justinian.

“The primary and principal objects of the law are rights and wrongs.”—Blackstone.

“Justice is the constant and perpetual disposition to render to every man his due.”—Justinian.

“The precepts of the law are to live honestly; to hurt no one; to give to every one his due.”—Justinian & Blackstone.

“Law. The rule and bond of men’s actions; or it is a rule for the well governing of civil society, to give to every man that which doth belong to him.”—Jacob’s Law Dictionary.

“Laws are arbitrary or positive, and natural; the last of which are essentially just and good, and bind everywhere, and in all places where they are observed. * * * * Those which are natural laws, are from God; but those which are arbitrary, are properly human and positive institutions.”—Selden on Fortescue, C. 17, also Jacob’s Law Dictionary.

“The law of nature is that which God, at man’s creation, infused into him, for his preservation and direction; and this is an eternal law, and may not be changed.”—2 Shep. Abr. 356, also Jac. Law Dict.

“All laws derive their force from the law of nature; and those which do not, are accounted as no laws.”—Fortescue, Jac. Law Dict.

“No law will make a construction to do wrong; and there are some things which the law favors, and some it dislikes; it favoreth those things that come from the order of nature.”—1 Inst. 183, 197.—Jac. Law Dict.

“Of law no less can be acknowledged, than that her seat is the bosom of God, her voice the harmony of the world. All things in heaven and earth do her homage; the least as feeling her care, and the greatest as not exempted from her power.”—Hooker.

Blackstone speaks of law as “A science, which distinguishes the criterions of right and wrong; which teaches to establish the one, and prevent, punish or redress the other; which employs in its theory the noblest faculties of the soul, and exerts in its practice the cardinal virtues of the heart; a science, which is universal in its use and extent, accommodated to each individual, yet comprehending the whole community.”—Blackstone’s Lecture on the Study of the Law.

“This law of nature being coeval with mankind, and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid, derive all their force, and all their authority mediately or immediately, from this original.”—Blackstone, Vol. 1, p. 41.

Mr. Christian, one of Blackstone’s editors, in a note to the above passage, says:

“Lord Chief Justice Hobart has also advanced, that even an act of Parliament made against natural justice, as to make a man judge in his own cause, is void in itself, for jura naturæ sunt immutabilia, and they are leges legum”—(the laws of nature are immutable—they are the laws of laws.)—Hob. 87.

Mr. Christian then adds:

“With deference to these high authorities, (Blackstone and Hobart,) I should conceive that in no case whatever can a judge oppose his own opinion and authority to the clear will and declaration of the legislature. His province is to interpret and obey the mandates of the supreme power of the state. And if an act of Parliament, if we could suppose such a case, should, like the edict of Herod, command all the children under a certain age to be slain, the judge ought to resign his office rather than be auxiliary to its execution; but it could only be declared void by the same legislative power by which it was ordained. If the judicial power were competent to decide that an act of parliament was void because it was contrary to natural justice, upon an appeal to the House of Lords this inconsistency would be the consequence, that as judges they must declare void, what as legislators they had enacted should be valid.

“The learned judge himself (Blackstone) declares in p. 91, if the Parliament will positively enact a thing to be done which is unreasonable, I know of no power in the ordinary forms of the constitution, that is vested with authority to control it.”

It will be seen from this note of Mr. Christian, that he concurs in the opinion that an enactment contrary to natural justice is intrinsically void, and not law; and that the principal, if not the only difficulty, which he sees in carrying out that doctrine, is one that is peculiar to the British constitution, and does not exist in the United States. That difficulty is, the “inconsistency” there would be, if the House of Lords, (which is the highest law court in England, and at the same time one branch of the legislature,) were to declare, in their capacity as judges, that an act was void, which, as legislators, they had declared should be valid. And this is probably the reason why Blackstone admitted that he knew of no power in the ordinary forms of the (British) constitution, that was vested with authority to control an act of Parliament that was unreasonable, (against natural justice.) But in the United States, where the judicial and legislative powers are vested in different bodies, and where they are so vested for the very purpose of having the former act as a check upon the latter, no such inconsistency would occur.

The constitutions that have been established in the United States, and the discussions had on the formation of them, all attest the importance which our ancestors attached to a separation of the judicial, from the executive and legislative departments of the government. And yet the benefits, which they had promised to liberty and justice from this separation, have in slight only, if any degree, been realized.—Although the legislation of the country generally has exhibited little less than an entire recklessness both of natural justice and constitutional authority, the records of the judiciary nevertheless furnish hardly an instance where an act of a legislature has, for either of these reasons, been declared void by its co-ordinate judicial department. There have been cases, few and far between, in which the United States courts have declared acts of state legislatures unconstitutional. But the history of the co-ordinate departments of the same governments has been, that the judicial sanction followed the legislative act with nearly the same unerring certainty, that the shadow follows the substance. Judicial decisions have consequently had the same effects in restraining the actions of legislatures, that shadows have in restraining the motions of bodies.

Why this uniform concurrence of the judiciary with the legislature? It is because the separation between them is nominal, not real. The judiciary receive their offices and salaries at the hands of the executive and the legislature, and are amenable only to the legislature for their official character. They are made entirely independent of the people at large, (whose highest interests are liberty and justice,) and entirely dependent upon those who have too many interests inconsistent with liberty and justice. Could a real and entire separation of the judiciary from the other departments take place, we might then hope that their decisions would, in some measure, restrain the usurpations of the legislature, and promote progress in the science of law and of government.

Whether any of our present judges would, (as Mr. Christian suggests they ought,) “resign their offices” rather than be auxiliary to the execution of an act of legislation, that, like the edict of Herod, should require all the children under a certain age to be slain, we cannot certainly know. But this we do know—that our judges have hitherto manifested no intention of resigning their offices to avoid declaring it to be law, that “children of two years old and under,” may be wrested forever from that parental protection which is their birthright, and subjected for life to outrages which all civilized men must regard as worse than death.

To proceed with our authorities:—

“Those human laws that annex a punishment to murder, do not at all increase its moral guilt, or superadd any fresh obligation in the forum of conscience to abstain from its perpetration. Nay, if any human law should allow or enjoin us to commit it, we are bound to transgress that human law, or else we must offend both the natural and the divine.”—Blackstone, Vol. 1, p. 42, 43.

“The law of nations depends entirely upon the rules of natural law, or upon mutual compacts, treaties, leagues and agreements between these several communities; in the construction also of which compacts, we have no other rule to resort to but the law of nature: (that) being the only one to which all the communities are equally subject.”—Blackstone, Vol. 1, p. 43.

“Those rights then which God and nature have established, and are therefore called natural rights, such as are life and liberty, need not the aid of human laws to be more effectually invested in every man than they are; neither do they receive any additional strength when declared by the municipal laws to be inviolable. On the contrary, no human legislature has power to abridge or destroy them, unless the owner shall himself commit some act that amounts to a forfeiture.”—Blackstone, Vol. 1, p. 54.

“By the absolute rights of individuals, we mean those which are so in their primary and strictest sense; such as would belong to their persons merely in a state of nature, and which every man is entitled to enjoy, whether out of society, or in it.”—Blackstone, Vol. 1, p. 123.

“The principal aim of society (government) is to protect individuals in the enjoyment of those absolute rights, which were vested in them by the immutable laws of nature; but which could not be preserved in peace without that mutual assistance and intercourse, which is gained by the institution of friendly and social communities. Hence it follows, that the first and primary end of human laws is to maintain and regulate these absolute rights of individuals. Such rights as are social and relative result from, and are posterior to, the formation of states and societies; so that to maintain and regulate these, is clearly a subsequent consideration. And therefore the principal view of human law is, or ought always to be, to explain, protect, and enforce such rights as are absolute; which, in themselves, are few and simple: and then such rights as are relative, which, arising from a variety of connexions, will be far more numerous and more complicated. These will take up a greater space in any code of laws, and hence may appear to be more attended to, though in reality they are not, than the rights of the former kind.”—Blackstone, Vol. 1, p. 124.

“The absolute rights of man, considered as a free agent, endowed with discernment to know good from evil, and with power of choosing those measures which appear to him most desirable, are usually summed up in one general appellation, and denominated the natural liberty of mankind. This natural liberty consists properly in a power of acting as one thinks fit, without any restraint or control, unless by the law of nature, being a right inherent in us by birth, and one of the gifts of God to man at his creation, when he endowed him with the faculty of free will.”—Blackstone, Vol. 1, p. 125.

“Moral or natural liberty, (in the words of Burlamaqui, ch. 3, s. 15,) is the right, which nature gives to all mankind of disposing of their persons and property after the manner they judge most consonant to their happiness, on condition of their acting within the limits of the law of nature, and that they do not any way abuse it to the prejudice of any other men.”—Christian’s note, Blackstone, Vol. 1, p. 126.

“The law of Nature is antecedent and paramount to all human governments. * * * Every individual of the human race comes into the world with rights, which, if the whole aggregate of human power were concentrated in one arm, it could not take away. * * * The Declaration of Independence recognizes no despotism, monarchical, aristocratic, or democratic. It declares that individual man is possessed of rights of which no government can deprive him.”—John Quincy Adams.

All the foregoing definitions of law, rights and natural liberty, although some of them are expressed in somewhat vague and indefinite terms, nevertheless recognize he primary idea, that law is a fixed principle, resulting from men’s natural rights: and that therefore the acknowledgment and security of the natural rights of individuals constitute the whole basis of law as a science, and a sine qua non of government as a legitimate institution.

And yet writers generally, who acknowledge the true theory of government and law, will nevertheless, when discussing matters of legislation, violate continually the fundamental principles with which they set out. On some pretext of promoting a great public good, the violation of individual rights will be justified in particular cases; and the guardian principle being once broken down, nothing can then stay the irruption of the whole horde of pretexts for doing injustice; and government and legislation thenceforth become contests between factions for power and plunder, instead of instruments for the preservation of liberty and justice equally to all.

The current doctrine that private rights must yield to the public good, amounts, in reality, to nothing more nor less than this, that an individual or the minority must consent to have less than their rights, in order that other individuals, or the majority, may have more than their rights. On this principle no honest government could ever be formed by voluntary contract, (as our governments purport to be;) because no man of common sense would consent to be one of the plundered minority, and no honest man could wish to be one of the plundering majority.

The apology, that is constantly put forth for the injustice of government, viz., that a man must consent to give up some of his rights, in order to have his other rights protected—involves a palpable absurdity, both legally and politically. It is an absurdity in law, because it says that the law must be violated in some cases, in order that it may be maintained in others. It is an absurdity politically, because a man’s giving up one of his rights has no tendency whatever to promote the protection of others. On the contrary, it only renders him less capable of defending himself, and consequently makes the task of his protection more burdensome to the government. At the same time it places him in the situation of one who has conceded a part of his rights, and thus cheapened the character of all his rights in the eyes of those of whom he asks assistance. There would be as much reason in saying that a man must consent to have one of his hands tied behind him, in order that his friends might protect the rest of his body against an enemy, as there is in saying that a man must give up some of his rights in order that government may protect the remainder. Let a man have the use of both of his hands, and the enjoyment of all his rights, and he will then be more competent to his own defence; his rights will be more respected by those who might otherwise be disposed to invade them; he will want less the assistance and protection of others; and we shall need much less government than we now have.

If individuals choose to form an association or government, for the mutual protection of each other’s rights, why bargain for the protection of an indefinite portion of them, at the price of giving to the association itself liberty to violate the equally indefinite remainder? By such a contract, a man really surrenders everything, and secures nothing. Such a contract of government would be a burlesque on the wisdom of asses. Such a contract never was, nor ever will be voluntarily formed. Yet all our governments act on that principle; and so far as they act upon it, they are as essentially usurping and tyrannical as any governments can be. If a man pay his proportion of the aggregate cost of protecting all the rights of each of the members of the association, he thereby acquires a claim upon the association to have his own rights protected without diminution.

The ultimate truth on this subject is, that man has an inalienable right to so much personal liberty as he will use without invading the rights of others. This liberty is an inherent right of his nature and his faculties. It is an inherent right of his nature and his faculties to develope themselves freely, and without restraint from other natures and faculties, that have no superior prerogatives to his own. And this right has only this limit, viz., that he do not carry the exercise of his own liberty so far as to restrain or infringe the equally free development of the natures and faculties of others. The dividing line between the equal liberties of each must never be transgressed by either. This principle is the foundation and essence of law and of civil right. And legitimate government is formed by the voluntary association of individuals, for the mutual protection of each of them in the enjoyment of this natural liberty, against those who may be disposed to invade it. Each individual being secured in the enjoyment of this liberty, must then take the responsibility of his own happiness and well-being. If his necessities require more than his faculties will supply, he must depend upon the voluntary kindness of his fellow-men; unless he be reduced to that extremity where the necessity of self-preservation over-rides all abstract rules of conduct, and makes a law for the occasion—an extremity, that would probably never occur but for some antecedent injustice.

*

United States vs. Fisher, 2 Cranch, 390.

*

The second charter to Virginia (1609) grants the power of making “orders, ordinances, constitutions, directions and instructions,” “so always as the said statutes, ordinances and proceedings, as near as conveniently may be, be agreeable to the laws, statutes, government and policy of this our realm of England.”

The third charter (1611—12) gave to the “General Court” “power and authority” to “make laws and ordinances” “so always as the same be not contrary to the laws and statutes of our realm of England.”

The first charter to Carolina, (including both North and South Carolina,) dated 1663, authorized the making of laws under this proviso—“Provided nevertheless, that the said laws be consonant to reason, and as near as may be conveniently, agreeable to the laws and customs of this our kingdom of England.”

The second charter (1665) has this proviso. “Provided nevertheless, that the said laws he consonant to reason, and as near as may be conveniently, agreeable to the laws and customs of this our realm of England.”

The charter to Georgia, (1732,) an hundred years after slavery had actually existed in Virginia, makes no mention of slavery, but requires the laws to be “reasonable and not repugnant to the laws of this our realm.” “The said corporation shall and may form and prepare laws, statutes and ordinances fit and necessary for and concerning the government of the said colony, and not repuguant to the laws and statutes of England.”

The charter to Maryland gave the power of making laws, “So, nevertheless, that the laws aforesaid be consonant to reason, and be not repugnant or contrary, but (so far as conveniently may be,) agreeable to the laws, statutes, customs, and rights of this our kingdom of England.”

The charter granted to Sir Edward Plowden had this proviso. “So, nevertheless, that the laws aforesaid be consonant to reason, and not repugnant and contrary, (but as convenient as may be to the matter in question,) to the laws, statutes, customs and rights of our kingdoms of England and Ireland.”

In the charter to Pennsylvania, power was granted to make laws, and the people were required to obey them, “Provided nevertheless that the said laws be consonant to reason, and be not repugnant or contrary, but, as near as conveniently may be, agreeable to the laws, statutes, and rights of this our kingdom of England.”

I have not been able to find a copy of the charter granted to the Duke of York, of the territory comprising New York, New Jersey, &c. But Gordon, in his history of the American Revolution, (vol. 1, p. 43,) says, “The King’s grant to the Duke of York, is plainly restrictive to the laws and government of England.”

The charter to Connecticut gave power “Also from time to time, to make, ordain and establish all manner of wholesome and reasonable laws, statutes, ordinances, directions and instructions, not contrary to the laws of this realm of England.”

The charter to the Massachusetts Bay Colony, (granted by William and Mary,) gave “full power and authority, from time to time, to make, ordain and establish all manner of wholesome and reasonable orders, laws, statutes and ordinances, directions and instructions, either with penalties or without, so as the same be not repugnant or contrary to the laws of this our realm of England.”

The charter to Rhode Island granted the power of making laws, “So as such laws, ordinances, constitutions, so made, be not contrary and repugnant unto, but (as near as may be) agreeable to the laws of this our realm of England, considering the nature and constitution of the place and people there.”

Several other charters, patents, &c., that had a temporary existence, might be named, that contained substantially the same provision.

*

In the case of the town of Pawlet v. Clarke and others, the court say—

“Let us now see how far these principles were applicable to New Hampshire, at the time of issuing the charter to Pawlet.

“New Hampshire was originally erected into a royal province in the thirty-first year of Charles II., and from thence until the revolution continued a royal province, under the immediate control and direction of the crown. By the first royal commission granted in 31 Charles II., among other things, judicial powers, in all actions, were granted to the provincial governor and council, ‘So always that the form of proceeding in such cases, and the judgment thereupon to be given, be as consonant and agreeable to the laws and statutes of this our realm of England, as the present state and condition of our subjects inhabiting within the limits aforesaid (i. e. of the province) and the circumstances of the place will admit.’ Independent, however, of such a provision, we take it to be a clear principle that the common law in force at the emigration of our ancestors, is deemed the birthright of the colonies, unless so far as it is inapplicable to their situation, or repugnant to their other rights and privileges. A fortiori the principle applies to a royal province.”—(9 Cranch’s U. States’ Reports, 332-3.)

*

Somerset v. Stewart.—Lofft’s Reports, p. 1 to 19, of Easter Term, 1772. In the Dublin edition the case is not entered in the Index.

*

Have Parliament the constitutional prerogative of abolishing the writ of habeas corpus? the trial by jury? or the freedom of speech and the press? If not, have they the prerogative of abolishing a man’s right of property in his own person?

*

Mr. Bancroft, in the third volume of his history, (pp. 413-14,) says:

“And the statute book of England soon declared the opinion of its king and its Parliament, that ‘the trade,’ ” (by which he means the slave trade, of which he is writing,) “ ‘is highly beneficial and advantageous to the kingdom and the colonies.’ ” To prove this he refers to statute of “1695, 8 and 10 Wm. 3, ch. 26.” (Should be 1697, 8—9 and 10 Wm. 3, ch. 26.)

Now the truth is that; although this statute may have been, and very probably was designed to insinuate to the slave traders the personal approbation of Parliament to the slave trade, yet the statute itself says not a word of slaves, slavery, or the slave trade, except to forbid, under penalty of five hundred pounds, any governor, deputy-governor or judge, in the colonies or plantations in America, or any other person or persons, for the use or on the behalf of such governor, deputy-governor or judges, to be “a factor or factor’s agent or agents” “for the sale or disposal of any negroes.”

The statute does not declare, as Mr. Bancroft asserts, that “the (slave) trade is highly beneficial and advantageous to the kingdom and the colonies;” but that “the trade to Africa is highly beneficial and advantageous,” &c. It is an inference of Mr. Bancroft’s that “the trade to Africa” was the slave trade. Even this inference is not justified by the words of the statute, considering them in that legal view, in which Mr. Bancroft’s remarks purport to consider them.

It is true that the statute assumes that “negroes” will be “imported” from Africa into “England,” (where of course they were not slaves,) and into the “plantations and colonies in America.” But it nowhere calls these “negroes” slaves, nor assumes that they are slaves. For aught that appears from the statute, they were free men and passengers, voluntary emigrants, going to “England” and “the plantations and colonies” as laborers, as such persons are now going to the British West Indies.

The statute, although it apparently desires to insinuate or faintly imply that they are property, or slaves, nevertheless studiously avoids to acknowledge them as such distinctly, or even by any necessary implication; for it exempts them from duties as merchandize, and from forfeiture for violation of revenue laws, and it also relieves the masters of vessels from any obligation to render any account of them at the custom houses.

When it is considered that slavery, property in man, can be legalized, according to the decision of Lord Mansfield, by nothing less than positive law; that the rights of property and person are the same on board an English ship, as in the island of Great Britain; and that this statute implies that these “negroes” were to be “imported” into “England,” as well as into the “plantations and colonies in America,” and that it therefore no more implies that they were to be slaves in “the plantations and colonies” than in “England,” where we know they could not be slaves; when these things are considered, it is perfectly clear, as a legal proposition, that the statute legalized neither slavery in the plantations and colonies, nor the slave trade from Africa to America—however we may suppose it to have been designed to hint a personal approbation, on the part of Parliament, of the actual traffic.

But lest I may be suspected of having either misrepresented the words of the statute, or placed upon them an erroneous legal construction, I give all the words of the statute, that make any mention of “negroes,” or their importation, with so much of the context as will enable the reader to judge for himself of the legal import of the whole.

The act is entitled, “An Act to settle the Trade to Africa.” Sec. 1, recites as follows:—

“Whereas, the Trade to Africa is highly beneficial and advantageous to this kingdom and to the Plantations and Colonies thereunto belonging.”

The act contains twenty-one sections, regulating trade, duties, &c., like any other navigation act. “Negroes” are mentioned only in the following instances and connexions, to wit:

Sec. 7. “And be it enacted by the authority aforesaid, That from and after the four-and-twentieth day of June, one thousand six hundred ninety-and-eight, it shall and may be lawful to and for any of the subjects of his majesty’s realms of England, as well as the said Company,* to trade from England or any of his majesty’s plantations or colonies in America to the coast of Africa, between Blanco and Cape Mount, answering and paying a duty of ten pounds per centum ad valorem for the goods and merchandises to be exported from England or any of his majesty’s plantations or colonies in America to and for the coast of Africa, between Cape Blanco and Cape Mount, and in proportion for a greater or lesser value, and answering and paying a further sum and duty of ten pounds per centum ad valorem, red wood only excepted, which is to pay five pounds per centum ad valorem, at the place of importation upon all goods and merchandize (negroes excepted) imported in (into) England or any of his majesty’s plantations or colonies in America, from the coast of Africa, between Cape Blanco and Cape Mount aforesaid. * * * And that all goods and merchandize, (negroes excepted,) that shall be laded or put on board any ship or vessel on the coast of Africa, between Cape Blanco and Cape Mount, and shall be imported into England or into any of his majesty’s plantations or colonies aforesaid, shall answer and pay the duties aforesaid, and that the master or chief officer of every such ship or vessel that shall lade or receive any goods or merchandize (negroes excepted) on board of his or their ship or vessel between Cape Blanco and Cape Mount, shall upon making entry at any of his majesty’s custom houses aforesaid of the said ship or vessel, or before any goods or merchandize be landed or taken out of the said ship or vessel (negroes excepted) shall deliver in a manifest or particular of his cargo, and take the following oath, viz.

“I, A. B., do swear that the manifest or particular now by me given in and signed, to the best of my knowledge and belief doth contain, signify and express all the goods, wares and merchandizes, (negroes excepted,) which were laden or put on board the ship called the—, during her stay and continuing on the coast of Africa between Cape Blanco and Cape Mount, whereof I, A. B., am master.”

Sec. 8. “And that the owner or importer of all goods and merchandize (negroes excepted) which shall be brought to England or any of his majesty’s plantations from any port of Africa between Cape Blanco and Cape Mount aforesaid shall make entry of all such goods and merchandize at one of his majesty’s chief custom houses in England, or in such of his majesty’s plantations where the same shall be imported,” &c.

Sec. 9. * * * “that all goods or merchandizes (negroes excepted) which shall be brought from any part of Africa, between Cape Blanco and Cape Mount aforesaid, which shall be unladed or landed before entry made and signed and oath of the true and real value thereof made and the duty paid as aforesaid, shall be forfeited, or the value thereof.”

Sec. 20. “And be it further enacted by the authority aforesaid, that no governor, or deputy-governor of any of his majesty’s colonies or plantations in America, or his majesty’s judges in any courts there for the time being, nor any other person or persons for the use or on behalf of such governor or deputy-governor or judges, from and after the nine-and-twentieth day of September, one thousand six hundred and ninety-eight, shall be a factor or factor’s agent or agents for the said Company,* or any other person or persons for the sale or disposal of any negroes, and that every person offending herein shall forfeit five hundred pounds to the uses aforesaid, to be recovered in any of his majesty’s courts of record at Westminster, by action of debt, bill, plaint or information, wherein no essoign, protection, privilege or wager of law shall be allowed, nor any more than one imparlance.”

Sec. 21. “Provided that this act shall continue and be in force thirteen years, and from thence to the end of the next sessions of Parliament, and no longer.”

Even if this act had legalized (as in reality it did not legalize) the slave trade during those thirteen years, it would be impossible now to distinguish the descendants of those who were imported under it, from the descendants of those who had been previously, and were subsequently imported and sold into slavery without law. The act would therefore avail nothing towards making the existing slavery in this country legal.

The next statute, of which I find any trace, passed by Parliament, with any apparent view to countenance the slave trade, was the statute of 23d George II., ch. 31, (1749—50.)

Mr. Bancroft has committed another still more serious error in his statement of the words (for he professes to quote precise words) of this statute. He says, (vol. 3, p. 414,)

“At last, in 1749, to give the highest activity to the trade, (meaning the slave trade,) every obstruction to private enterprise was removed, and the ports of Africa were laid open to English competition, for ‘the slave trade,’—such” (says Mr. Bancroft,) “are the words of the statute—‘the slave trade is very advantageous to Great Britain.’ ”

As words are, in this case, things—and things of the highest legal consequence—and as this history is so extensively read and received as authority—it becomes important, in a legal, if not historical, point of view, to correct so important an error as that of the word slave in this statement. “The words of the statute” are not that “the slave trade,” but that “the trade to and from Africa is very advantageous to Great Britain.” “The trade to and from Africa” no more means, in law, “the slave trade,” than does the trade to and from China. From aught that appears, then, from so much of the preamble, “the trade to and from Africa” may have been entirely in other things than slaves. And it actually appears from another part of the statute, that trade was carried on in “gold, elephant’s teeth, wax, gums and drugs.”

From the words immediately succeeding those quoted by Mr. Bancroft from the preamble to this statute, it might much more plausibly, (although even from them it could not be legally) inferred that the statute legalized the slave trade, than from those pretended to be quoted by him. That the succeeding words may be seen, the title and preamble to the act are given, as follows:

“An act for extending and improving the trade to Africa.”

“Whereas, the trade to and from Africa is very advantageous to Great Britain, and necessary for supplying the plantations and colonies thereunto belonging, with a sufficient number of negroes at reasonable rates; and for that purpose the said trade” (i. e. “the trade to and from Africa”) “ought to be free and open to all his majesty’s subjects. Therefore be it enacted,” &c.

“Negroes” were not slaves by the English law, and therefore the word “negroes,” in this preamble, does not legally mean slaves. For aught that appears from the words of the preamble, or even from any part of the statute itself, these “negroes,” with whom it is declared to be necessary that the plantations and colonies should be supplied, were free persons, voluntary emigrants, that were to be induced to go to the plantations as hired laborers, as are those who, at this day, are induced, in large numbers, and by the special agency of the English government, to go to the British West Indies. In order to facilitate this emigration, it was necessary that “the trade to and from Africa” should be encouraged. And the form of the preamble is such as it properly might have been, if such had been the real object of Parliament. Such is undoubtedly the true legal meaning of this preamble, for this meaning being consistent with natural right, public policy, and with the fundamental principles of English law, legal rules of construction imperatively require that this meaning should be ascribed to it, rather than it should be held to authorize anything contrary to natural right, or contrary to the fundamental principles of British law.

We are obliged to put this construction upon this preamble, for the further reason that it corresponds with the enacting clauses of the statute—not one of which mentions such a thing as the transportation of slaves to, or the sale of slaves in “the plantations and colonies.” The first section of the act is in these words, to wit:

“That it shall and may be lawful for all his majesty’s subjects to trade and traffic to and from any port or place in Africa, between the port of Sallee in South Barbary, and the Cape of Good Hope, when, at such times, and in such manner, and in or with such quantity of goods, wares and merchandizes, as he or they shall think fit, without any restraint whatsoever, save as is herein after expressed.”

Here plainly is no authority given “to trade and traffic” in anything except what is known either to the English law, or the law of nature, as “goods, wares, or merchandizes”—among which men were not known, either to the English law, or the law of nature.

The second section of the act is in these words:

“That all his majesty’s subjects, who shall trade to or from any of the ports or places of Africa, between Cape Blanco and the Cape of Good Hope, shall forever hereafter be a body corporate and politic, in name and in deed, by the name of the Company of Merchants Trading to Africa, and by the same name shall have perpetual succession, and shall have a common seal, and by that name shall and may sue, and be sued, and do any other act, matter and thing, which any other body corporate or politic, as such, may lawfully do.”

Neither this nor any other section of the act purports to give this “Company,” in its corporate capacity, any authority to buy or sell slaves, or to transport slaves to the plantations and colonies.

The twenty-ninth section of the act is in these words:

“And be it further enacted, by the authority aforesaid, that no commander or master of any ship trading to Africa, shall by fraud, force or violence, or by any other indirect practice whatsoever, take on board, or carry away from the coast of Africa, any negro or native of the said country, or commit, or suffer to be committed, any violence on the natives, to the prejudice of the said trade; and that every person so offending shall, for every such offence, forfeit the sum of one hundred pounds of lawful money of Great Britain; one moiety thereof to the use of the said Company hereby established, and their successors, for and towards the maintaining of said forts and settlements, and the other moiety to and for the use of him or them who shall inform or sue for the same.”

Now, although there is perhaps no good reason to doubt that the secret intention of Parliament in the passage of this act, was to stimulate the slave trade, and that there was a tacit understanding between the government and the slave dealers, that the slave trade should go on unharmed (in practice) by the government, and although it was undoubtedly understood that this penalty of one hundred pounds would either not be sued for at all, or would be sued for so seldom as practically to interpose no obstacle to the general success of the trade, still, as no part of the whole statute gives any authority to this “Company of Merchants trading to Africa” to transport men from Africa against their will, and as this twenty-ninth section contains a special prohibition to individuals, under penalty, to do so, no one can pretend that the trade was legalized. If the penalty had been but one pound, instead of one hundred pounds, it would have been sufficient, in law to have rebutted the pretence that the trade was legalized. The act, on its face and in its legal meaning, is much more an act to prohibit, than to authorize the slave trade.

The only possible legal inference from the statute, so far as concerns the “supplying the plantations and colonies with negroes at reasonable rates,” is, that these negroes were free laborers, voluntary emigrants, that were to be induced to go to the plantations and colonies; and that “the trade to and from Africa” was thrown open in order that the facilities for the transportation of these emigrants might be increased.

But although there is, in this statute, no authority given for—but, on the contrary, a special prohibition upon—the transportation of the natives from Africa against their will, yet I freely admit that the statute contains one or two strong, perhaps decisive implications in favor of the fact that slavery was allowed in the English settlements on the coast of Africa, apparently in conformity with the customs of the country, and with the approbation of Parliament. But that is the most that can be said of it. Slavery, wherever it exists, is a local institution; and its toleration, or even its legality, on the coast of Africa, would do nothing towards making it legal in any other part of the English dominions. Nothing but positive and explicit legislation could transplant it into any other part of the empire.

The implications, furnished by the act, in favor of the toleration of slavery, in the English settlements, on the coast of Africa, are the following:

The third section of the act refers to another act of Parliament “divesting the Royal African Company of their charter, forts, castles and military stores, canoe men and castle-slaves;” and section thirty-first requires that such “officers of his majesty’s navy,” as shall be appointed for the purpose, “shall inspect and examine the state and condition of the forts and settlements on the coast of Africa, in the possession of the Royal African Company, and of the number of the soldiers therein, and also the state and condition of the military stores, castles, slaves, canoes and other vessels and things, belonging to the said company, and necessary for the use and defence of the said forts and settlements, and shall with all possible despatch report how they find the same.”

Here the fact is stated that the “Royal African Company,” (a company that had been in existence long previous to the passing of this act,) had held “castle slaves” “for the use and defence of the said forts and settlements.” The act does not say directly whether this practice was legal or illegal; although it seems to imply that, whether legal or illegal, it was tolerated with the knowledge and approbation of Parliament.

But the most distinct approbation given to slavery by the act, is implied in the twenty-eighth section, in these words:

“That it shall and may be lawful for any of his majesty’s subjects trading to Africa, for the security of their goods and slaves, to erect houses and warehouses, under the protection of the said forts,” &c.

Although even this language would not be strong enough to overturn previously established principles of English law, and give the slave holders a legal right of property in their slaves, in any place where English law had previously been expressly established, (as it had been in the North American colonies,) yet it sufficiently evinces that Parliament approved of Englishmen holding slaves in the settlements on the coast of Africa, in conformity with the customs of that country. But it implies no authority for transporting their slaves to America; it does nothing towards legalizing slavery in America; it implies no toleration even of slavery anywhere, except upon the coast of Africa. Had slavery been positively and explicitly legalized on the coast of Africa, it would still have been a local institution.

This reasoning may appear to some like quibbling; and it would perhaps be so, were not the rule well settled that nothing but explicit and irresistible language can be legally held to authorize anything inconsistent with natural right, and with the fundamental principles of a government.

That this statute did not legalize the right of property in man, (unless as a local principle on the coast of Africa,) we have the decision of Lord Mansfield, who held that it did not legalize it in England; and if it did not legalize it in England, it did not legalize it in any of the colonies where the principles of the common law prevailed. Of course it did not legalize it in the North American colonies.

But even if it were admitted that this statute legalized the right of property, on the part of the slave trader, in his slaves taken in Africa after the passage of the act, and legalized the sale of such slaves in America, still the statute would be ineffectual to sustain the legality of slavery, in general, in the colonies. It would only legalize the slavery of those particular individuals, who should be transported from Africa to America, subsequently to the passage of this act, and in strict conformity with the law of this act—(a thing, by the way, that could now be proved in no case whatever.) This act was passed in 1749—50, and could therefore do nothing towards legalizing the slavery of all those who had, for an hundred and thirty years previous, been held in bondage in Virginia and elsewhere. And as no distinction can now be traced between the descendants of those who were imported under this act, and those who had illegally been held in bondage prior to its passage, it would be of no practical avail to slavery now, to prove, (if it could be proved,) that those introduced into the country subsequent to 1750, were legally the property of those who introduced them.

*

The Royal African Company.

*

The Royal African Company.

*

“Chastise.” An act passed in South Carolina in 1740, authorized slaves to sue for their liberty, by a guardian appointed for the purpose. The act then provides that if judgment be for the slave, he shall be set free, and recover damages; “but in case judgment shall be given for the defendant, (the master,) the said court is hereby fully empowered to inflict such corporeal punishment, not extending to life or limb, on the ward of the plaintiff, (the slave,) as they in their discretion shall see fit.”—Brevard’s Digest, vol. 2, p. 130.

“Baptize.” In 1712 South Carolina passed this act:

“Since charity and the Christian religion which we profess, obliges us to wish well to the souls of all men, and that religion may not be made a pretence to alter any man’s property and right, and that no persons may neglect to baptize their negroes or slaves, or suffer them to be baptized, for fear that thereby they should be manumitted and set free: Be it therefore enacted, That it shall be, and is hereby declared lawful for any negro or Indian slave, or any other slave or slaves whatsoever, to receive and profess the Christian faith, and be thereunto baptized. But that notwithstanding such slave or slaves shall receive and profess the Christian religion, and be baptized, he or they shall not thereby be manumitted or set free, or his or their owner, master or mistress lose his or their civil right, property and authority over such slave or slaves, but that the slave or slaves, with respect to his or their servitude, shall remain and continue in the same state and condition, that he or they was in before the making of this act.”—Grimke, p. 18. Brevard, vol. 2, p. 229.

In 1667, the following statute was passed in Virginia:

“Whereas, some doubts have arisen whether children that are slaves by birth, and by the charity and piety of their owners made partakers of the blessed sacrament of baptism, should by virtue of their baptism be made free; It is enacted and declared by this grand assembly, and the authority thereof, that the conferring of baptism doth not alter the condition of the person as to his bondage or freedom; that divers masters, freed from this doubt, may more carefully endeavour the propagation of Christianity by permitting children, though slaves, or those of greater growth, if capable to be admitted to that sacrament.”—Hening’s Statutes, vol. 2. p. 260.

*

Hening, vol. 2, p. 283.

†

Hening, vol. 5, p. 547-8.

‡

In 1753 Virginia passed a statute, occupying some twelve or fifteen pages of the statute book, and intended to cover the whole general subject of slavery. One of the sections of this act is as follows:

“That all and every other act and acts, clause and clauses, heretofore made, for or concerning any matter or thing within the provision of this act, shall be and are hereby repealed.”—Hening’s Statutes, vol. 6, p. 369.

No reservation being made, by this section, of rights acquired under former statutes, and slave property being a matter dependent entirely upon statute, all title to slave property, acquired under former acts, was by this act annihilated; and all the slaves in the State were made freemen, as against all prior legislation. And the slaves of the State were thenceforward held in bondage only by virtue of another section of the same act, which was in these words:

“That all persons who have been, or shall be imported into this colony, by sea or land, and were not Christians in their native country, except Turks and Moors in amity with his majesty, and such who can prove their being free in England, or any other Christian country, before they were shipped for transportation hither, shall be accounted slaves, and as such be here bought and sold, notwithstanding a conversion to Christianity after their importation.”—Hening, vol. 6, p. 356-7.

The act also provided, “That all children shall be bond or free, according to the condition of their mothers and the particular directions of this act.”

*

The following is the preamble and the important enacting clause of this statute of 1740:

“Whereas, in his majesty’s plantations in America, slavery has been introduced and allowed; and the people commonly called negroes, Indians, mulattos and mestizoes have (been) deemed absolute slaves, and the subjects of property in the hands of particular persons; the extent of whose power over such slaves ought to be settled and limited by positive laws, so that the slaves may be kept in due subjection and obedience, and the owners and other persons having the care and government of slaves, may be restrained from exercising too great rigor and cruelty over them; and that the public peace and order of this province may be preserved: Be it enacted, That all negroes, Indians, (free Indians in amity with this government, and negroes, mulattos and mestizoes, who are now free, excepted,) mulattos and mestizoes, who now are or shall hereafter be in this province, and all their issue and offspring born or to be born, shall be and they are hereby declared to be and remain forever hereafter absolute slaves, and shall follow the condition of the mother,” &c.—Grimke, p. 163-4. Brevard, vol. 2, p. 229.

*

The State Constitutions of 1789 were adopted as follows: Georgia, 1777 South Carolina, 1778; North Carolina, 1776; Virginia, 1776; Maryland, 1776, Delaware, 1776; Pennsylvania, 1776; New Jersey, 1776; New York, 1777; Mas sachusetts, 1780; New Hampshire, 1783.

These early Constitutions ought to be collected and published with appropriate notes.

*

Since that time the words “free” and “freemen” have been gradually falling into disuse, and the word citizen been substituted—doubtless for the reason that it is not pleasant to our pride or our humanity to use words, one of whose significations serves to suggest a contrast between ourselves and slaves.

*

Dallas’ edition of the Laws of Pennsylvania, vol. 1, Appendix, page 25.

*

Cooper’s edition of the Laws of South Carolina, vols. 2 and 4. “Alieus.”

*

This language of the Supreme Court contains an admission of the truth of the charge just made against judges, viz., that rather than lose their offices, they will violate what they know to be law, in subserviency to the legislatures on whom they depend; for it admits, 1st, that the preservation of men’s rights is the vital principle of law, and, 2d, that courts (and the Supreme Court of the United States in particular) will trample upon that principle at the bidding of the legislature, when the mandate comes in the shape of a statute of such “irresistible clearness,” that its meaning cannot be evaded.

†

“Laws are construed strictly to save a right.”—Whitney et al. vs. Emmett et al., 1 Baldwin, C. C. R. 316.

“No law will make a construction to do wrong; and there are some things which the law favors, and some it dislikes; it favoreth those things that come from the order of nature.—Jacob’s Law Dictionary, title Law.

*

In the convention that framed the constitution, when this clause was under discussion, “servants” were spoken of as a distinct class from “slaves.” For instance, “Mr. Butler and Mr. Pickney moved to require ‘fugitive slaves and servants to be delivered up like criminals.’ ” Mr. Sherman objected to delivering up either slaves or servants. He said he “saw no more propriety in the public seizing and surrendering a slave or servant, than a horse.”—Madison Papers, p. 1447-8.

The language finally adopted shows that they at last agreed to deliver up “servants,” but not “slaves”—for as the word “servant” does not mean “slave,” the word “service” does not mean slavery.

These remarks in the convention are quoted, not because the intentions of the convention are of the least legal consequence whatever; but to rebut the silly arguments of those who pretend that the convention, and not the people, adopted the constitution—and that the convention did not understand the legal difference between the word “servant” and “slave,” and therefore used the word “service” in this clause, as meaning slavery.

*

It is a well settled rule of interpretation, that each single word of an instrument must be taken to have some appropriate reference or relation to the matters treated of in the rest of the instrument, where it is capable of such a meaning. By this rule the words “free” and “freeman,” when used in charters of incorporation, universally apply to persons who are members of the corporation—or are (as it is termed) “free of the company” or corporation, created by the charter—that is, free to enjoy, as a matter of right, the privileges of the corporation. It is not probable that, at the adoption of the constitution, any other use of these words, “free” and “freeman,” could have been found in a single charter of incorporation in the English language, whether the charter were one of a trading corporation, of a city, a colony, or a State. Now, the constitution of the United States is but the charter of a corporation. Its object is to form “the people of the United States” into a corporation, or body politic, for the purpose of maintaining government, and for dispensing the benefits of government to the members of the corporation. If the word “free,” in such a charter, is to be construed to have any reference to the general subject matter of the charter, it of course refers to those who are members of the corporation; to the citizens; those who are “free of the corporation,” as distinguished from aliens, or persons not members of the corporation.

But the advocates of slavery are compelled to adopt the absurdity of denying that the meaning of the word “free” has any relation to the rest of the instrument; or any reference to the persons who are really “free of the corporation,” which the instrument creates. They are obliged to maintain that it is used only to describe those who are free from some individual tyranny, which the instrument nowhere else recognizes as existing, and which really had no legal existence to be recognized.

All this is a palpable violation of a perfectly well settled rule of interpretation—of a rule, which is obviously indispensable for maintaining any kind of coherence between the different parts of an instrument.

*

Gibbons vs. Ogden.—(9 Wheaton, 1.)

*

Since the publication of the first edition, it has been asked whether the “tax or duty” authorized by the clause, does not imply that the persons imported are property? The answer is this. “A tax or duty” on persons is a poll tax; and a poll tax is a tax or duty on persons—nothing more—nothing less. A poll tax conveys no implication that the persons, on whom the tax is levied, are property—otherwise all of us, on whom a poll tax has ever been levied, were deemed by the law to be property—and if property, slaves. A poll tax on immigrants no more implies that they are slaves, than a poll tax on natives implies that the latter are slaves.

*

“The government (of the U. S.) proceeds directly from the people; is ‘ordained and established’ in the name of the people.”—M’Culloch vs. Maryland, 4 Wheaton, 403.

“The government of the Union is emphatically and truly, a government of the people; and in form and in substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit.”—Same, pages 404, 405.

“The constitution of the United States was ordained and established, not by the United States in their sovereign capacities, but emphatically, as the preamble of the constitution declares, by ‘the people of the United States.’ ”—Martin vs. Hunter’s lessee, 1 Wheaton, 324.

*

That is, male persons. The constitution, whenever it uses the pronoun, in speaking of the President, uniformly uses the masculine gender—from which it may be inferred that male persons only were intended to be made eligible to the office.

Perhaps this inference might not be allowable, if either the office, or eligibility to the office, were anything that any one could naturally claim as a right. But neither can be claimed as a right. The office is not given to any one because he has a right to it, nor because it may be even a benefit to him. It is conferred upon him, or rather confided to him, as a trust, and solely as a trust, for the sole benefit of the people of the United States. The President, as President, is not supposed to have any rights in the office on his own account; or any rights except what the people, for their own benefit, and not for his, have voluntarily chosen to grant to him. And the people have a right to confide this trust to whomsoever they please, or to whomsoever they think it will be most for their interest to confide it. And no one can say that his rights are either violated or withheld, merely because he is not selected for the trust, even though his real fitness for the trust should be altogether superior to that of the one selected. He can only say that his merits or qualifications are not properly appreciated. The people have naturally the same free, unqualified, irresponsible right to select their agents or servants, according to their pleasure or discretion, that a private individual has to select his, without giving any one, who is not selected, any reason to say that his rights are violated. The most fit person has no more claim, in the nature of a right, to the office, than a person the least fit; he has only qualifications; no one has rights.

The people, then, who establish this office, and for whose benefit alone it is to be filled, and whose servant the President is, have naturally an unqualified right to exercise their free pleasure or discretion in the selection of the person to fill it, without giving any one, who is not selected, any ground for saying that his rights are withheld, or for saying anything other than that his merits or abilities are not properly estimated. The people, for example, have a right to say, as in their constitution they have said, that they will confide this trust to no one who is not thirty-five years old; and they do not thereby infringe or withhold any of the rights of those who are under thirty-five years old; although it is possible that they do not properly estimate their fitness for the office. So they have a perfect right to say that they will not confide this trust to women; and women cannot say that their rights are thereby withheld; although they are at liberty to think and say that their qualifications for the office are not appreciated.

Inasmuch, then, as no rights are withheld or violated by making male persons only eligible to the office, we are at perfect liberty to construe the language of the constitution according to its grammatical meaning, without seeking to go beyond it. According to this meaning, male persons only are eligible—for the constitution speaks of “the President” as a single individual; and very properly too—for although different individuals may fill the office, yet only one can fill it at a time, and the office is presumed never to he vacant. It is therefore of the officer, as a single and perpetual one, and not of the different individuals, (as individuals,) who may at different times fill the office, that the constitution speaks, when it speaks of “the President.” And in speaking of this perpetual officer as a single individual, it uniformly uses the masculine pronoun. Inasmuch as it would be a plain violation of grammatical rules to speak of a single and particular individual as a male person, if the individual were a female, it may (and probably must) be inferred that the constitution did not intend that the office should ever be filled by any other than a male person.

*

Somerset was not a citizen of England, or entitled, as such, to the protection of the English law. The privilege of the writ of habeas corpus was granted to him on the ground simply of his being a man.

*

From whom come these objections to the “propriety” of the general government’s interfering to maintain republicanism in the states? Do they not come from those who have ever hitherto claimed that the general government was bound to interfere to put down republicanism? And that those who were republicans at the north, might with perfect “propriety” and consistency, pledge their assistance to the despots of the south, to sustain the worst, the meanest and most atrocious of tyrannies? Yes, from the very same. To interfere to assist one half of the people of a state in the cowardly, cruel and fiendish work of crushing the other half into the earth, corresponds precisely with their chivalrous notions of “propriety;” but it is insufferable officiousness for them to form any political compacts that will require them to interfere to protect the weak against the tyranny of the strong, or to maintain justice, liberty, peace and freedom.

*

Eli Whitney.

*

The Supreme Court say, “The instrument, when it came from their hands, (that is, the hands of the convention,) was a mere proposal, without obligation or pretension to it.” “The people were at perfect liberty to accept or reject it; and their act was final.”—M‘Cullock vs. Maryland,—4 Wheaton 403—4.

*

The Supreme Court of the United States say:

“The intention of the instrument must prevail: this intention must be collected from its words.”—Ogden vs. Saunders,—12 Wheaton, 332.

“The intention of the legislature is to be searched for in the words which the legislature has employed to convey it.”—Schr. Paulina’s Cargo vs. United States,—7 Cranch, 60.

Judge Story, in giving an opinion upon the bankrupt act, replies as follows to an argument analogous to that, which is often drawn from the debates of the convention, in opposition to the language of the constitution itself. He says:

“At the threshold of the argument, we are met with the suggestion, that when the (Bankrupt) act was before Congress, the opposite doctrine was then maintained in the House of Representatives, and it was confidently stated, that no such jurisdiction was conferred by the act, as is now insisted on. What passes in Congress upon the discussion of a bill can hardly become a matter of strict judicial inquiry; and if it were, it could scarcely be affirmed, that the opinions of a few members, expressed either way, are to be considered as the judgment of the whole House, or even of a minority. But, in truth, little reliance can or ought to be placed upon such sources of interpretation of a statute. The questions can be, and rarely are, there debated upon strictly legal grounds, with a full mastery of the subject and of the just rules of interpretation. The arguments are generally of a mixed character, addressed by way of objection or of support, rather with a view to carry or defeat a bill, than with the strictness of a judicial decision. But if the House entertained one construction of the language of the bill, non constat, that the same opinion was entertained either by the Senate or by the President; and their opinions are certainly, in a matter of the sanction of laws, entitled to as great weight as the other branch. But in truth, courts of justice are not at liberty to look at considerations of this sort. We are bound to interpret the act as we find it, and to make such an interpretation as its language and its apparent objects require. We must take it to be true, that the legislature intend precisely what they say, and to the extent which the provisions of the act require, for the purpose of securing their just operation and effect. Any other course would deliver over the court to interminable doubts and difficulties; and we should be compelled to guess what was the law, from the loose commentaries of different debates, instead of the precise enactments of the statute. Nor have there been wanting illustrious instances of great minds, which, after they had, as legislators, or commentators, reposed upon a short and hasty opinion, have deliberately withdrawn from their first impressions, when they came upon the judgment seat to re-examine the statute or law in its full bearings.”—Mitchell vs. Great Works Milling and Manufacturing Company. Story’s Circuit Court Reports, Vol. 2, page 653.

If the intentions of legislatures, who are invested with the actual authority of prescribing laws, are of no consequence otherwise than as they are expressed in the language of their statutes, of how much less consequence are any unexpressed intentions of the framers of the constitution, who had no authority to establish a constitution, but only to draft one to be offered to the people for their voluntary adoption or rejection.

*

“Elliot’s Debates,” so often referred to, are, if possible, a more miserable authority than Mr. Madison’s notes. He seems to have picked up the most of them from the newspapers of the day, in which they were reported by nobody now probably knows whom. In his preface to his first volume, containing the debates in the Massachusetts and New York conventions, he says:

“In the compilation of this volume, care has been taken to search into contemporary publications, in order to make the work as perfect as possible; still, however, the editor is sensible, from the daily experience of newspaper reports of the present time, that the sentiments they contain may, in some instances, have been inaccurately taken down, and in others, probably too faintly sketched, fully to gratify the inquisitive politician.” He also speaks of them as “rescued from the ephemeral prints of that day, and now, for the first time, presented in a uniform and durable form.”

In the preface to his second volume, which is devoted to the Virginia convention, he says the debates were reported by an able stenographer, David Robertson; and then quotes the following from Mr. Wirt, in a note to the Life of Patrick Henry:

“From the skill and ability of the reporter, there can be no doubt that the substance of the debates, as well as their general course, are accurately preserved.”

In his preface to the third volume, embracing the North Carolina and Pennsylvania conventions, he says:

“The first of the two North Carolina conventions is contained in this volume; the second convention, it is believed, was neither systematically reported nor printed.” The debates in the Pennsylvania convention, that have been preserved, it appears, are on one side only; a search into the contemporary publications of the day, has been unsuccessful to furnish us with the other side of the question.”

In his preface to the fourth volume, he says:

“In compiling the opinions, on constitutional questions, delivered in Congress, by some of the most enlightened senators and representatives, the files of the New York and Philadelphia newspapers, from 1789 to 1800, had to be relied on; from the latter period to the present, the National Intelligencer is the authority consulted for the desired information.”

It is from such stuff as this, collected and published thirty-five and forty years after the constitution was adopted—stuff very suitable for constitutional dreams to be made of—that our courts and people now make their constitutional law, in preference to adopting the law of the constitution itself. In this way they manufacture law strong enough to bind three millions of men in slavery.

*

This principle would apply, as we have before seen, where the change was from the colonial to a state government. It would also apply to all cases where the change took place, under the constitution of the United States, from a territorial to a state government. It needs no argument to prove that all our territorial statutes that have purported to authorize slavery, were unconstitutional.

*

Art. 2, Sec. 1, Clause 5: “No person, except a natural born citizen, * * * shall be eligible to the office of President.”

T.16 The Unconstitutionality of Slavery: Part Second 1860).↩

Title

[16.] The Unconstitutionality of Slavery: Part Second (Boston: Bela Marsh, 1860).

- also online </titles/2207>.

Text

CONTENTS OF PART SECOND.

- CHAPTER XIV.—THE DEFINITION OF LAW, page 137

- CHAPTER XV.—OUGHT JUDGES TO RESIGN THEIR SEATS? 147

- CHAPTER XVI.—“THE SUPREME POWER OF A STATE,” 153

- CHAPTER XVII.—RULES OF INTERPRETATION, 155

- First Rule, 157

- Second Rule, 161

- Third Rule, 165

- Fourth Rule, 168

- Fifth Rule, 180

- Sixth Rule, 182

- Seventh Rule, 189

- Eighth Rule, 196

- Ninth Rule, 198

- Tenth Rule, 199

- Eleventh Rule, 200

- Twelfth Rule, 200

- Thirteenth Rule, 201

- Fourteenth Rule, 204

- Rules cited for Slavery, 205

- First Rule cited for Slavery, 205

- Second Rule cited for Slavery, 213

- Third Rule cited for Slavery, 217

- Fourth Rule cited for Slavery, 219

- CHAPTER XVIII.—SERVANTS COUNTED AS UNITS, 237

- CHAPTER XIX.—SLAVE REPRESENTATION, 238

- CHAPTER XX.—ALIENS COUNTED AS THREE FIFTHS, 242

- CHAPTER XXI.—WHY THE WORDS “FREE PERSONS” WERE USED, 247

- CHAPTER XXII.—“ALL OTHER PERSONS,” 257

- CHAPTER XXL—ADDITIONAL ARGUMENTS OF THE WORD “FREE,” 264

- CHAPTER XXIV.—POWER OF THE GENERAL GOVERNMENT OVER SLAVERY, 269

- APPENDIX.

- A.Fugitive Slavis, 279

- B.Suggestions to Abolitionists, 290

[iv] [137]

THE UNCONSTITUTIONALITY OF SLAVERY.

PART SECOND.

CHAPTER XIV.: THE DEFINITION OF LAW.

It has been alleged, by way of objection to the definition of law given in chapter first, that under it the law would be uncertain, and government impracticable. Directly the opposite of both these allegations is true. Let us see.

1. Natural law, so far from being uncertain, when compared with statutory and constitutional law, is the only thing that gives any certainty at all to a very large portion of our statutory and constitutional law. The reason is this. The words, in which statutes and constitutions are written, are susceptible of so many different meanings,—meanings widely different from, often directly opposite to, each other, in their bearing upon men’s rights,—that, unless there were some rule of interpretation for determining which of these various and opposite meanings are the true ones, there could be no certainty at all as to the meaning of the statutes and constitutions themselves. Judges could make almost anything they should please out of them. Hence the necessity of a rule of interpretation. And this rule is, that the language of statutes and constitutions shall be construed, as nearly as possible, consistently with natural law.

The rule assumes, what is true, that natural law is a thing certain in itself; also that it is capable of being learned. It assumes, furthermore, that it actually is understood by the legislators and judges who make and interpret the written law. Of necessity, therefore, it assumes further, that they (the legislators and judges) are incompetent to make and interpret the written law, unless they previously understand the natural law applicable to the [138] same subject. It also assumes that the people must understand the natural law, before they can understand the written law.

It is a principle perfectly familiar to lawyers, and one that must be perfectly obvious to every other man that will reflect a moment, that, as a general rule, no one can know what the written law is, until he knows what it ought to be; that men are liable to be constantly misled by the various and conflicting senses of the same words, unless they perceive the true legal sense in which the words ought to be taken. And this true legal sense is the sense that is most nearly consistent with natural law of any that the words can be made to bear, consistently with the laws of language, and appropriately to the subjects to which they are applied.

Though the words contain the law, the words themselves are not the law. Were the words themselves the law, each single written law would be liable to embrace many different laws, to wit, as many different laws as there were different senses, and different combinations of senses, in which each and all the words were capable of being taken.

Take, for example, the Constitution of the United States. By adopting one or another sense of the single word “free,” the whole instrument is changed. Yet, the word free is capable of some ten or twenty different senses. So that, by changing the sense of that single word, some ten or twenty different constitutions could be made out of the same written instrument. But there are, we will suppose, a thousand other words in the constitution, each of which is capable of from two to ten different senses. So that, by changing the sense of only a single word at a time, several thousands of different constitutions would be made. But this is not all. Variations could also be made by changing the senses of two or more words at a time, and these variations could be run through all the changes and combinations of senses that these thousand words are capable of. We see, then, that it is no more than a literal truth, that out of that single instrument, as it now stands, without altering the location of a single word, might be formed, by construction and interpretation, more different constitutions than figures can well estimate.

But each written law, in order to be a law, must be taken only in some one definite and distinct sense; and that definite and distinct sense must be selected from the almost infinite variety of senses which its words are capable of. How is this selection to [139] be made? It can be only by the aid of that perception of natural law, or natural justice, which men naturally possess.

Such, then, is the comparative certainty of the natural and the written law. Nearly all the certainty there is in the latter, so far as it relates to principles, is based upon, and derived from, the still greater certainty of the former. In fact, nearly all the uncertainty of the laws under which we live,—which are a mixture of natural and written laws,—arises from the difficulty of construing, or, rather, from the facility of misconstruing, the written law. While natural law has nearly or quite the same certainty as mathematics. On this point, Sir William Jones, one of the most learned judges that have ever lived, learned in Asiatic as well as European law, says,—and the fact should be kept forever in mind, as one of the most important of all truths:—“It is pleasing to remark the similarity, or, rather, the identity of those conclusions which pure, unbiassed reason, in all ages and nations, seldom fails to draw, in such juridical inquiries as are not fettered and manacled by positive institutions.”* In short, the simple fact that the written law must be interpreted by the natural, is, of itself, a sufficient confession of the superior certainty of the latter.

The written law, then, even where it can be construed consistently with the natural, introduces labor and obscurity, instead of shutting them out. And this must always be the case, because words do not create ideas, but only recall them; and the same word may recall many different ideas. For this reason, nearly all abstract principles can be seen by the single mind more clearly than they can be expressed by words to another. This is owing to the imperfection of language, and the different senses, meanings, and shades of meaning, which different individuals attach to the same words, in the same circumstances.†

Where the written law cannot be construed consistently with the natural, there is no reason why it should ever be enacted at all. It may, indeed, be sufficiently plain and certain to be easily understood; but its certainty and plainness are but a poor compensation [140] for its injustice. Doubtless a law forbidding men to drink water, on pain of death, might be made so intelligible as to cut off all discussion as to its meaning; but would the intelligibleness of such a law be any equivalent for the right to drink water? The principle is the same in regard to all unjust laws. Few persons could reasonably feel compensated for the arbitrary destruction of their rights, by having the order for their destruction made known beforehand, in terms so distinct and unequivocal as to admit of neither mistake nor evasion. Yet this is all the compensation that such laws offer.

Whether, therefore, written laws correspond with, or differ from, the natural, they are to be condemned. In the first case, they are useless repetitions, introducing labor and obscurity. In the latter case, they are positive violations of men’s rights.

There would be substantially the same reason in enacting mathematics by statute, that there is in enacting natural law. Whenever the natural law is sufficiently certain to all men’s minds to justify its being enacted, it is sufficiently certain to need no enactment. On the other hand, until it be thus certain, there is danger of doing injustice by enacting it; it should, therefore, be left open to be discussed by anybody who may be disposed to question it, and to be judged of by the proper tribunal, the judiciary.*

It is not necessary that legislators should enact natural law in order that it may be known to the people, because that would be presuming that the legislators already understand it better than the people,—a fact of which I am not aware that they have ever heretofore given any very satisfactory evidence. The same sources of knowledge on the subject, are open to the people, that are open to the legislators, and the people must be presumed to know it as well as they.†

[141]

2. But it is said further, that government is not practicable under this theory of natural law. If by this is meant only that government cannot have the same arbitrary and undisputed supremacy over men’s rights, as under other systems—the same absolute [142] authority to do injustice, or to maintain justice, at its pleasure—the allegation is of course true; and it is precisely that, that constitutes the merits of the system. But if anything more than that is meant, it is untrue. The theory presents no obstacle to the use of all just means for the maintenance of justice; and this is all the power that government ought ever to have. It is all the power that it can have, consistently with the rights of those on whom it is to operate. To say that such a government is not practicable, is equivalent to saying that no governments are practicable but arbitrary ones; none but those that are licensed to do injustice, as well as to maintain justice. If these latter governments only are practicable, it is time that all men knew it, in order that those who are to be made victims may stand on their defence, instead of being cheated into submission by the falsehood that government is their protector, and is licensed to do, and intends to do, nothing but justice to any.

If we say it is impracticable to limit the constitutional power of government to the maintenance of natural law, we must, to be consistent, have done with all attempts to limit government at all by written constitutions; for it is obviously as easy, by written constitutions, to limit the powers of government to the maintenance of natural law, as to give them any other limit whatever. And if they were thus limited expressly, it would then, for the reasons before given, be as easy, and even altogether more easy, for the judiciary to determine what legislation was constitutional, and what not, than it is under a constitution that should attempt to define the powers of government arbitrarily.

[143]

On what ground it can seriously be said that such a government is impracticable, it is difficult to conceive. Protecting the rights of all, it would naturally secure the cordial support of all, instead of a part only. The expense of maintaining it would be far less than that of maintaining a different one. And it would certainly be much more practicable to live under it, than under any other. Indeed, this is the only government which it is practicable to establish by the consent of all the governed; for an unjust government must have victims, and the victims cannot be supposed to give their consent. All governments, therefore, that profess to be founded on the consent of the governed, and yet have authority to violate natural laws, are necessarily frauds. It is not a supposable case, that all, or even any very large part, of the governed, can have agreed to them. Justice is evidently the only principle that everybody can be presumed to agree to, in the formation of government.

It is true that those appointed to administer a government founded on natural law, might, through ignorance or corruption, depart from the true theory of the government in particular cases, as they do under any other system; and these departures from the system would be departures from justice. But departures from justice would occur only through the errors of the men; such errors as systems cannot wholly prevent; they would never, as under other systems, be authorized by the constitution. And even errors arising from ignorance and corruption would be much less frequent than under other systems, because the powers of government would be much more definite and intelligible; they could not, as under other systems, be stretched and strained by construction, so as to afford a pretext for anything and everything that corruption might desire to accomplish.

It is probable that, on an average, three fourths, and not unlikely nine tenths, of all the law questions that are decided in the progress of every trial in our courts, are decided on natural principles; such questions, for instance, as those of evidence, crime, the obligation of contracts, the burden of proof, the rights of property, &c., &c.* If government be practicable, as we thus see it to be, where three fourths or nine tenths of the law administered [144] is natural, it would be equally practicable where the whole was so.

So far from government being impracticable on principles of natural law, it is wholly impracticable to have a government of law, applicable to all cases, unless the great body of the law administered be natural; because it is impossible for legislation to anticipate but a small portion of the cases that must arise in regard to men’s rights, so as to enact a law for them. In all the cases which the legislature cannot anticipate and provide for, natural law must prevail, or there can be no law for them, and, consequently,—so far as those cases are concerned—no government.

Whether, therefore, we regard the certainty of the law, or the practicability of a government applicable to all cases, the preference is incomparably in favor of natural law.

But suppose it were not so. Suppose, for the sake of the argument, that the meaning of the arbitrary commands of power were, in the majority of cases, more easily ascertained than the principles of natural justice; is that any proof that the former are law, and the latter not? Does the comparative intelligibility of the two determine which is to be adopted as the true definition of law? It is very often easier to understand a lie than to ascertain a truth; but is that any proof that falsehood is synonymous with fact? or is it any reason why falsehood should be held to be fact? As much reason would there be in saying this, as there is in saying that the will of the supreme power of the state is law, or should be held to be law, rather than natural justice, because it is easier to understand the former than to ascertain the latter.

Or suppose, further, that government were impracticable, under such a definition of law as makes law synonymous with natural justice; would that be any argument against the definition? or only against government?

The objection to the practicability of government under such a definition of law, assumes, 1st, that government must be sustained, whether it administer justice or injustice; and, 2d, that its commands must be called law, whether they really are law or not. Whereas, if justice be not law, it may certainly be questioned whether government ought to be sustained. And to this question all reasonable men must answer, that we receive such an abundance of injustice from private persons, as to make it inexpedient to maintain a government for the sole purpose of increasing the supply. But even if unjust government must be sustained, the question [145] will still remain, whether its commands ought to be called law? If they are not law, they should be called by their right name, whatever it may be.

In short, the definition of law involves a question of truth or falsehood. Natural justice either is law, or it is not. If it be law, it is always law, and nothing inconsistent with it can ever be made law. If it be not law, then we have no law except what is prescribed by the reigning power of the state; and all idea of justice being any part of our system of law, any further than it may be specially prescribed, ought to be abandoned; and government ought to acknowledge that its authority rests solely on its power to compel submission, and that there is not necessarily any moral obligation of obedience to its mandates.

If natural justice be not law, then all the decisions that are made by our courts on natural principles, without being prescribed by statute or constitution, are unauthorized, and not law. And the decisions of this kind, as has already been supposed, comprise probably three fourths, or more likely nine tenths, of all the decisions given by our courts as law.*

If natural justice be law, then all statutes and constitutions inconsistent with it are no law, and courts are bound to say so. Courts must adopt some definition of law, and adhere to it. They cannot make it mean the two opposite principles of justice and injustice at once. White cannot be made white and black at the same time, by the assertions of all the courts on the globe. Neither can law be made two opposite things at once. It must be either one thing or the other.

No one doubts that there is such a principle as natural law; and natural law is natural justice. If natural justice be law, natural injustice cannot be made law, either by “the supreme power of the [146] state,” or by any other power; and it is a fraud to call it by that name.

“The supreme powers of states,” whether composed of majorities or minorities, have alike assumed to dignify their unjust commands with the name of law, simply for the purpose of cheating the ignorant into submission, by impressing them with the idea that obedience was a duty.

The received definition of law, viz., that it is “a rule of civil conduct prescribed by the supreme power of a state,” had its origin in days of ignorance and despotism, when government was founded in force, without any acknowledgment of the natural rights of men. Yet even in those days the principle of justice competed, as now, with the principle of power, in giving the definition of law; for justice was conceded to be the law in all, or very nearly all, the cases where the will of the supreme power had not been explicitly made known; and those cases comprised, as now, a very large portion of all the cases adjudicated.

What a shame and reproach, nay, what an unparalleled crime is it, that at this day, and in this country, where men’s natural rights are universally acknowledged, and universally acknowledged to be inalienable, and where government is acknowledged to have no just powers except what it derives from the consent of the governed, (who can never be supposed to consent to any invasion of their rights, and who can be supposed to establish government only for their protection,) a definition of law should be adhered to, that denies all these self-evident and glorious truths, blots out all men’s natural rights, founds government on force, buries all present knowledge under the ignorance and tyranny of the past, and commits the liberties of mankind to the custody of unrestrained power!

The enactment and enforcement of unjust laws are the greatest crimes that are committed by man against man. The crimes of single individuals invade the rights of single individuals. Unjust laws invade the rights of large bodies of men, often of a majority of the whole community; and generally of that portion of community who, from ignorance and poverty, are least able to bear the wrong, and at the same time least capable of resistance.*

[147]

CHAPTER XV.: OUGHT JUDGES TO RESIGN THEIR SEATS?

It being admitted that a judge can rightfully administer injustice as law, in no case, and on no pretence whatever; that he has no right to assume an oath to do so; and that all oaths of that kind [148] are morally void; the question arises, whether a judge, who has actually sworn to support an unjust constitution, be morally bound [149] to resign his seat? or whether he may rightfully retain his office, administering justice, instead of injustice, regardless of his oath?

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The prevalent idea is, that he ought to resign his seat; and high authorities may be cited for this opinion. Nevertheless, the opinion is probably erroneous; for it would seem that, however wrong it may be to take the oath, yet the oath, when taken, being morally void to all intents and purposes, can no more bind the taker to resign his office, than to fulfil the oath itself.

The case appears to be this: The office is simply power, put into a man’s hands, on the condition, based upon his oath, that he will use that power to the destruction or injury of some person’s rights. This condition, it is agreed, is void. He holds the power, then, by the same right that he would have done if it had been put into his hands without the condition. Now, seeing that he cannot fulfill, and is under no obligation to fulfill, this void condition, the question is, whether he is bound to resign the power, in order that it may be given to some one who will fulfill the condition? or whether he is bound to hold the power, not only for the purpose of using it himself in defence of justice, but also for the purpose of withholding it from the hands of those who, if he surrender it to them, will use it unjustly? Is it not clear that he is bound to retain it for both of these reasons?

Suppose A put a sword into the hands of B, on the condition of B’s taking an oath that with it he will murder C. Now, however immoral the taking of this oath may be, yet, when taken, the oath and the condition are utterly void. They are incapable of raising the least moral obligation, of any kind whatever, on the part of B towards A. B then holds the sword on the same principle, and by the same right, that he would have done if it had [151] been put into his hands without any oath or condition whatever. Now the question is, whether B, on refusing to fulfil the condition, is bound to retain the sword, and use it, if necessary, in defence of C? or whether he is bound to return it to A, in order that A may give it to some one who will use it for the murder of C? The case seems to be clear. If he were to give up the sword, under these circumstances, knowing the use that was intended to be made of it, and it should then be used, by some other person, for the murder of C, he would be, on both moral and legal principles, as much accessary to the murder of C, as though he had furnished the sword for that specific purpose, under any other circumstances whatever.

Suppose A and B come to C with money, which they have stolen from D, and intrust it to him, on condition of his taking an oath to restore it to them when they shall call for it. Of course, C ought not to take such an oath in order to get possession of the money; yet, if he have taken the oath, and received the money, his duty, on both moral and legal principles, is then the same as though he had received it without any oath or condition; because the oath and condition are both morally and legally void. And if he were to restore the money to A and B, instead of restoring it to D, the true owner, he would make himself their accomplice in the theft—a receiver of stolen goods. It is his duty to restore it to D.

Suppose A and B come to C, with a captive, D, whom they have seized with the intention of reducing him to slavery; and should leave him in the custody of C, on condition of C’s taking an oath that he will restore him to them again. Now, although it is wrong for C to take such an oath for the purpose of getting the custody of D, even with a view to set him free, yet, if he have taken it, it is void, and his duty then is, not to give D up to his captors, but to set him at liberty—else he will be an accomplice in the crime of enslaving him.

The principle, in all these cases, appears to be precisely similar to that in the case of a judge, who has sworn to support an unjust constitution. He is intrusted with certain power over the rights of men, on condition of his taking an oath that he will use the power for the violation of those rights. It would seem that there can hardly be a question, on either moral or legal principles, that this power, which he has received on the condition that he shall use it for the destruction of men’s rights, he is bound to retain and use for their defence.

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If there be any difference of principle in these several cases, I should like much to see it pointed out. There probably is none. And if there be none, the principle that would induce a judge to resign his power; is only a specimen of the honor that is said to prevail among thieves; it is no part of the morality that should govern men claiming to be just towards all mankind. It is indeed but a poor specimen even of the honor of thieves, for that honor, I think, only forbids the exposure of one’s accomplices, and the seizure, for one’s own use, of more than his agreed share of the spoils; it hardly forbids the restoration of stolen property to its rightful owners.

As long as the dogma is sustained that a judge is morally bound either to fulfil his oath to support an unjust constitution, or to surrender the power that has been entrusted to him for that purpose, so long those, who wish to establish such constitutions, will be encouraged to do so; because they will know that they can always find creatures enough, who will accept the office for its honors and emoluments, and will then execute it, if they must, rather than surrender them. But let the principle be established that such oaths are void, and that the power conferred is therefore held on the same grounds as though the oath had not been taken at all, and one security, at least, for the execution of unjust constitutions is taken away, and the inducement to establish them is consequently weakened.

Judges and other public officers habitually appeal to the pretended obligation of their oaths, when about to perform some act of iniquity, for which they can find no other apology, and for which they feel obliged to offer some apology. Hence the importance of the doctrine here maintained, if it be true.

Perhaps it will be said that a judge has no right to set up his own notions of the validity of a statute, or constitution, against the opinions of those who enact or establish it; that he is bound to suppose that they consider the statute or constitution entirely just, whatever may be his own opinion of it; and that he is therefore bound to yield his opinion to theirs, or to resign his seat. But this is only saying that, though appointed judge, he has no right to be judge. It is the prerogative of a judge to decide everything that is involved in the question of law, or no law. His own mind alone is the arbiter. To say that it is not, is to say that he is not judge. He may err, like other men. Those who appoint him, take the risk of his errors. He is bound only by his own convictions.

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But there is no reason in presuming that legislators, or constitution makers, when they violate natural law, do it in the belief that they are conforming to it. Everybody is presumed to know the law, especially natural law. And legislators must be presumed to know it, as well as other men; and if they violate it, (which question the judge must decide,) they, like other men, must be presumed to have done it intentionally.

CHAPTER XVI.: “THE SUPREME POWER OF A STATE.”

If any additional argument were needed to enforce the authority of natural law, it would be found in the nature of the only opposing authority, to wit, the authority of “the supreme power of the state,” as it is called.

In most “states,” “the supreme power” is obtained by force, and rests upon force; and its mandates do not necessarily have any other authority than what force can give them.

But in this country, “the supreme power” is acknowledged, in theory, to rest with the people. Our constitutions purport to be established by “the people,” and, in theory, “all the people” consent to such government as the constitutions authorize. But this consent of “the people” exists only in theory. It has no existence in fact. Government is in reality established by the few; and these few assume the consent of all the rest, without any such consent being actually given. Let us see if such be not the fact.

Only the male adults are allowed to vote either in the choice of delegates to form constitutions, or in the choice of legislators under the constitutions. These voters comprise not more than one fifth of the population. A bare majority of these voters,—that is, a little more than one tenth of the whole people,—choose the delegates and representatives. And then a bare majority of these delegates and representatives, (which majority were chosen by, and, consequently, represent but little more than one twentieth of the whole people,) adopt the constitution, and enact the statutes. Thus the actual makers of constitutions and statutes cannot be said to be the representatives of but little more than one twentieth of the people whose rights are affected by their action.

In fact, not one twentieth, but only a little more than one fortieth, [154] of the people, are necessarily represented in our statutory legislation, state and national; for, in the national legislature, and in nearly all the state legislatures, a bare majority of the legislative bodies constitute a quorum, and a bare majority of that quorum are sufficient to enact the laws. The result, then, is substantially this. Not more than one fifth of the people vote. A bare majority of that fifth, (being about one tenth of the whole,) choose the legislators. A bare majority of the legislators, (representing but about one twentieth of the people,) constitute a quorum. A bare majority of the quorum, (representing but about one fortieth of the people.) are sufficient to make the laws.

Finally. Even the will of this one fortieth of the people cannot be said to be represented in the general legislation, because the representative is necessarily chosen for his opinions on one, or at most a few, important topics, when, in fact, he legislates on an hundred, or a thousand others, in regard to many, perhaps most, of which, he differs in opinion from those who actually voted for him. He can, therefore, with certainty, be said to represent nobody but himself.

Yet the statutory and constitutional law, that is manufactured in this ridiculous and fraudulent manner, is claimed to be the will of “the supreme power of the state;” and even though it purport to authorize the invasion, or even the destruction, of the natural rights of large bodies of the people,—men, women, and children,—it is, nevertheless, held to have been established by the consent of the whole people, and to be of higher authority than the principles of justice and natural law. And our judges, with a sanctimony as disgusting as it is hypocritical, continually offer these statutes and constitutions as their warrant for such violations of men’s rights, as, if perpetrated by them in their private capacities, would bring upon them the doom which they themselves pronounce upon felons.*

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CHAPTER XVII.: RULES OF INTERPRETATION.*

The three preceding chapters, as also chapter first, although their principles are claimed to be of paramount authority, as law, to all statutes and constitutions inconsistent with them, are nevertheless not claimed to have anything to do with the question of the constitutionality or unconstitutionality of slavery, further than this, viz., that they indicate the rule of interpretation that should be adopted in construing the constitution. They prove the reasonableness, propriety, and therefore truth, of the rule, quoted from the supreme court of the United States, and adopted in the prior argument, as the fundamental rule of interpretation; a rule which, if adhered to, unquestionably proves that slavery is unconstitutional. That rule is this.

“Where rights are infringed, where fundamental principles are overthrown, where the general system of the laws† is departed from, the legislative intention must be expressed with irresistible clearness, to induce a court of justice to suppose a design to effect such objects.” 2 Cranch, 390.

The whole question of the constitutionality or unconstitutionality [156] of slavery, is one of construction. And the real question is only whether the rules, applicable to the interpretation of statutes, and all other legal instruments, that are enforced by courts as obligatory, shall be applied also to the interpretation of the constitution? or whether these rules are to be discarded, and the worst possible meaning of which the words are capable put upon the instrument arbitrarily, and for no purpose but to sustain slavery? This is the question, and the whole of it.

The validity of the rule, quoted from the supreme court, has not, so far as I am aware, been denied. But some of the explanations given of the rule, in the prior argument, have been called in question. As the whole question at issue, in regard to the constitutionality of slavery, is one solely of interpretation, it becomes important to sustain, not only the explanations given of this rule, [157] but also some of the other rules laid down in that argument. And hence the necessity of going more fully into the question of interpretation.

FIRST RULE.

The first rule, in the interpretation of the constitution, as of all other laws and contracts, is, “that the intention of the instrument must prevail.”

The reason of this rule is apparent; for unless the intention of the instrument prevail, wherefore was the instrument formed? or established as law? If any other intention is to prevail over the instrument, the instrument is not the law, but a mere nullity.

The intentions of a statute or constitution are always either declared, or presumed.

The declared intentions of a statute or constitution are the intentions that are clearly expressed in terms in the statute or constitution itself.

Where the intentions of statutes and constitutions are not clearly expressed in the instruments themselves, the law always presumes them. And it always presumes the most just and beneficial intentions, which the words of the instruments, taken as a whole, can fairly be made to express, or imply.

Statutes and constitutions, in which no intentions were declared, and of which no reasonable intentions could be presumed, would be of no legal validity. No intentions that might be attributed to them by mere force of conjecture, and exterior history, could be legally ascribed to them, or enforced as law.

The intentions, which individuals, in discussions, conversations, and newspapers, may attribute to statutes and constitutions, are no part of the instruments themselves. And they are not of the slightest importance as evidence of their intentions, especially if they are in opposition, either to the declared, or the presumed, intentions of the instruments. If the intentions of statutes and constitutions were to be gathered from the talk of the street, there would be no use in writing them in terms. The talk of the street, and not the written instruments, would constitute the laws. And the same instrument would be as various and contradictory in its meanings, as the various conjectures, or assertions, that might be heard from the mouths of individuals; for one man’s conjecture or assertion would be of as much legal value as another’s; and effect would therefore have to be given to all, if to any.

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Those who argue for slavery, hold that “the intentions of the people” must prevail, instead of “the intentions of the instrument;” thus falsely assuming that there is a legal distinction between the intentions of the instrument and the intentions of the people. Whereas the only object of the instrument is to express the intentions of the people. That is the only motive that can be attributed to the people, for its adoption. The people established the constitution solely to give written and certain evidence of their intentions. Having their written instrument, we have their own testimony, their own declaration, of what their intentions are. The intentions of the instrument, then, and the intentions of the people, are identical. And it is legally a matter of indifference which form of expression is used; for both legally express the same idea.

But the same class of persons, who assume a distinction between the intentions of the instrument and the intentions of the people, labor to prove, by evidence extraneous to the instrument, that the intentions of the people were different from those the instrument expresses; and then they infer that the instrument must be warped and twisted, and made to correspond to these unexpressed intentions of the people.

The answer to all this chicanery is this. The people, assuming that they have the right to establish their will as law, have, in theory, agreed upon an instrument to express their will, or their intentions. They have thus said that the intentions expressed in that instrument are their intentions. Also that their intentions, as expressed in the instrument, shall be the supreme law of the land.

“The people,” by thus agreeing that the intentions, expressed by their joint instrument, shall be the supreme law of the land, have virtually and legally contracted with each other, that, for the sake of having these, their written intentions, carried into effect, they will severally forego all other intentions, of every name and nature whatsoever, that conflict with the written ones, in which they are all agreed.

Now this written instrument, which is, in theory, the voluntary contract of each and every individual with each and every other, is the highest legal evidence of their intentions. It is the specific evidence that is required of all the parties to it. It is the only evidence that is required, or accepted, of any. It is equally valid and sufficient, in favor of all, and against all. It is the only [159] evidence that is common to all. The intentions it expresses must, therefore, stand as the intentions of all, and be carried into effect as law, in preference to any contrary intentions, that may have been separately, individually, and informally expressed by any one or all the parties on other occasions; else the contract is broken.

As long as the parties acknowledge the instrument as being their contract, they are each and all estopped by it from saying that they have any intentions adverse to it. Its intentions and their intentions are identical, else the parties individually contradict themselves. To acknowledge the contract, and yet disavow its intentions, is perfect self-contradiction.

If the parties wish to repudiate the intentions of the instrument, they must repudiate or abolish the instrument itself. If they wish to change the intentions of the instrument, in any one or more particulars, they must change its language in those particulars, so as to make it express the intentions they desire. But no change can be wrought by exterior evidence; because the written instrument, to which, and to which only, all have, in theory, agreed, must always be the highest evidence that the courts can have of the intentions of the whole people.

If, therefore, the fact were historically well authenticated, that every man in the nation had publicly asserted, within one hour after the adoption of the constitution, (that is, within one hour after he had, in theory, agreed to it,) that he did not agree to it intending that any or all of the principles expressed by the instrument should be established as law, all those assertions would not be of the least legal consequence in the world; and for the very sufficient reason, that what they have said in the instrument is the law; and what they have said out of it is no part of it, and has no legal bearing upon it.

Such assertions, if admitted to be true, would only prove that the parties had lied when they agreed to the instrument; and if they lied then they may be lying now. If we cannot believe their first and formal assertion of their intentions, we cannot believe their second and informal one.

The parties cannot claim that they did not understand the language of the instrument; for if they did not understand the language then, when they agreed to it, how can we know that they understand it now, when they dissent from it? Or how can we know that they so much as understand the very language they are [160] now using in making their denial? or in expressing their contrary intentions?

They cannot claim that they did not understand the rules, by which their language, used in the instrument, would be interpreted; for if they did not understand them then, how can we know that they understand them now? Or how do we know that they understand the rules, by which their present declarations of their intentions will be interpreted?

The consequence is, that every man must be presumed to understand a contract to which he agrees, whether he actually does understand it or not. He must be presumed to understand the meaning of its words; the rules by which its words will be interpreted; and the intentions, which its words, thus interpreted, express. Otherwise men can never make contracts that will be binding upon them; for a man cannot bind himself by a contract which he is not presumed to understand; and it can seldom, or never, be proved whether a man actually does understand his contract, or not. If, therefore, at any time, through ignorance, carelessness, mental reservations, or fraudulent designs, men agree to instruments that express intentions different from their own, they must abide the consequences. The instrument must stand, as expressing their intentions, and their adverse intentions must fail of effect.

Every one, therefore, when he agrees to a contract, judges for himself, and takes his own risk, whether he understands the instrument to which he gives his assent. It is plainly impossible to have constitutions established by contract of the people with each other on any other principle than this; for, on any other principle, it could never be known what the people, as a whole, had agreed to. If every individual, after he had agreed to a constitution, could set up his own intentions, his own understandings of the instrument, or his own mental reservations, in opposition to the intentions expressed by the instrument itself, the constitution would be liable to have as many different meanings as there were different individuals who had agreed to it. And the consequence would be, that it would have no obligation at all, as a mutual and binding contract, for, very likely, no two of the whole would have understood the instrument alike in every particular, and therefore no two would have agreed to the same thing.

Each man, therefore, before he agrees to an instrument, must judge for himself, taking his own risk whether he understands it. [161] After he has agreed to it, he is estopped, by his own instrument, from denying that his intentions were identical with the intentions expressed by the instrument.

The constitution of the United States, therefore, until its language is altered, or the instrument itself abolished, by the people of the United States, must be taken to express the intentions of the whole people of the United States, whether it really do express their intentions or not. It is the highest evidence of their intentions. It is the only evidence which they have all agreed to furnish of their intentions. All other adverse evidence is, therefore, legally worthless and inadmissible. The intentions of the instrument, then, must prevail, as being the intentions of the people, or the constitution itself is at an end.

SECOND RULE.

The second rule of interpretation is, that “the intention of the constitution must be collected from its words.”*

This rule is, in reality, nearly synonymous with the preceding one; and its reason, like that of the other, is apparent; for why are words used in writing a law, unless it is to be taken for granted [162] that when written they contain the law? If more was meant, why was not more said? If less was meant, why was so much said? If the contrary was meant, why was this said, instead of the contrary?

To go beyond the words of a law, (including their necessary or reasonable implications,) in any case, is equivalent to saying that the written law is incomplete: that it, in reality, is not a law, but only a part of one; and that the remainder was left to be guessed at, or rather to be made, by the courts.

It is, therefore, a violation of legal rules, to go beyond the words of a law, (including their necessary or reasonable implications,) in any case whatever.*

To go contrary to the words of a law, is to abolish the law itself, by declaring its words to be false.

But it happens that the same words have such various and opposite meanings in common use, that there would be no certainty as to the meaning of the laws themselves, unless there were some rules for determining which one of a word’s various meanings was to be attached to it, when the word was found in a particular connection. Hence the necessity of rules of interpretation. Their office is to determine the legal meaning of a word, or, rather, to select the legal meaning of word, out of all the various meanings which the word bears in common use. Unless this selection were made, a word might have two or more different and contradictory meanings in the same place. Thus the law would be mere jargon, instead of being a certain and precise rule of action.

These rules of interpretation have never been specially enacted by statute, or constitutions, for even a statute or constitution enacting them would be unintelligible or uncertain, until interpreted by them. They have, therefore, originated in the necessity of the case; in the inability of words to express single, definite, and clear ideas, such as are indispensable to certainty in the law, unless some one of their several meanings be selected as the legal one.

Men of sense and honesty, who have never heard of these rules as legal ones, but who, nevertheless, assume that written laws and contracts are made for just and reasonable ends, and then judge of [163] their meaning accordingly, unconsciously act upon these rules in so doing. Their perception of the fact, that unless the meaning of words were judged of in this manner, words themselves could not be used for writing laws and contracts, without being liable to be perverted to subserve all manner of injustice, and to defeat the honest intentions of the parties, forces upon them the conviction, that the legal meaning of the words must be such, and only such, as (it will hereafter be seen) these rules place upon them. The rules, then, are but the dictates of common sense and common honesty, applied to determining the meaning of laws and contracts. And common sense and common honesty are all that is necessary to enable one to judge of the necessity and soundness of the rules.

Rules of interpretation, then, are as old as the use of words, in prescribing laws, and making contracts. They are as necessary for defining the words as the words are for describing the laws and contracts. The words would be unavailable for writing laws and contracts, without the aid of the rules for interpreting them. The rules, then, are as much a part of the language of laws and contracts as are the words themselves. Their application to the words of laws and contracts is as much presumed to be understood, by all the parties concerned, as is the meaning of the words themselves. And courts have no more right to depart from, or violate, these rules, than to depart from, or contradict, the words themselves.

The people must always be presumed to understand these rules, and to have framed all their constitutions, contracts, &c., with reference to them, as much as they must be presumed to understand the common meanings of the words they use, and to have framed their constitutions and contracts with reference to them. And why? Because men’s contracts and constitutions would be no contracts at all, unless there were some rules of interpretation understood, or agreed upon, for determining which was the legal meaning of the words employed in forming them. The received rules of interpretation have been acted upon for ages;* indeed, they must have been acted upon through all time, since men first attempted to make honest contracts with each other. As no other rules than these received ones can be presumed against the parties, and as these are the only ones that can secure men’s honest [164] rights, under their honest contracts; and, as everybody is bound to know that courts must be governed by fixed rules, applying the same to all contracts whatsoever, it must always be presumed, in each particular case, that the parties intended their instruments should be construed by the same rules by which the courts construe all others.

Another reason why the people must be presumed to know these rules, at least in their application to cases where a question of right and wrong is involved, is, that the rules are but a transcript of a common principle of morality, to wit, the principle which requires us to attribute good motives and good designs to all the words and actions of our fellow-men, that can reasonably bear such a construction. This is a rule by which every man claims that his own words and actions should be judged. It is also a principle of law, as well as of morals, and one, too, of which every man who is tried for an offence claims the benefit. And the law accords it to him. So long as there be so much as “a reasonable doubt” whether his words or actions evince a criminal intent, the law presumes a good intent, and gives him the benefit of it. Why should not the same rule be observed, in inferring the intent of the whole community, from the language of their laws and constitutions, which is observed in inferring the intent of each individual of that community from his language and conduct? It should clearly require as strong proof to convict the whole community of a crime, (and an unjust law or constitution is one of the highest of all possible crimes,) as it does to convict a single individual. The principle, then, is the same in both cases; and the practice of those who infer a bad intent from the language of the constitution, so long as the language itself admits of a reasonable doubt whether such be its intent, goes the length of overthrowing an universally recognized principle of law, on which the security of every accused person is liable to depend.*

For these, and perhaps other reasons, the people are presumed [165] to understand the reason and justice of these rules, and therefore, to understand that their contracts will be construed by them. If, therefore, men ever frame constitutions or contracts with the intention that they shall be construed contrarily to these rules, their intention must be defeated; and for the same reason that they would have to be defeated if they had used words in a directly opposite sense to the common ones, such, for example, as using white when they meant black, or black when they meant white.

For the sake of having a case for the rules to apply to, we will take the representative clause, embracing the word “free,” (Art. 1, sec. 2,) which is the first and the strongest of all the clauses in the constitution that have been claimed as recognizing and sanctioning slavery. Indeed, unless this clause do recognize and sanction it, nobody would pretend that either of the other clauses do so. The same rules, if any, that prevent the representative clause and the word “free” from having any legal reference to slavery, will also have the same effect upon the other clauses. If, therefore, the argument for slavery, based upon the word “free,” falls to the ground, the arguments based upon the words “importation of persons,” “service and labor,” &c., must also fall; for they can stand, if at all, only by means of the support they obtain from the argument drawn from the word “free.”

THIRD RULE.

A third rule is, that we are always, if possible, to give a word some meaning appropriate to the subject matter of the instrument itself.*

This rule is indispensable, to prevent an instrument from degenerating into absurdity and nonsense.

In conformity with this rule, words which purport to describe certain classes of persons existing under the constitution, must be taken in a sense that will aptly describe such persons as were actually to exist under it, and not in a sense that will only describe those who were to have no existence under it.

It would, for instance, be absurd for the constitution to provide that, in every ten years, there should be “added to the whole number [166] of free persons three fifths of all other persons,” if there were really to be no other persons than the free.

If, therefore, a sense correlative with slavery were given to the word free, it would make the word inappropriate to the subject matter of the constitution, unless there were really to be slaves under the constitution.

It is, therefore, inadmissible to say that the word free is used in the constitution as the correlative of slaves, until it be first proved that there were to be slaves under the constitution.

We must find out what classes of persons were to exist under the constitution, before we can know what classes of persons the terms used in the constitution apply to.

If the word free had but one meaning, we might infer, from the word itself, that such persons as that word would necessarily describe were to exist under the constitution. But since the word has various meanings, we can draw no certain inference from it alone, as to the class of persons to whom it is applied. We must, therefore, fix its meaning in the constitution, by ascertaining, from other parts of the instrument, what kind of “free persons,” and also what kind of “other persons,” were really to exist under the constitution. Until this is done, we cannot know the meaning of the word free, as it is used in the constitution.

Those who say that the word free is used, in the constitution, in a sense correlative with slavery, assume the very point in dispute; viz., that there were to be slaves under the constitution. This is the point to be proved, and cannot be assumed. And until it be proved, it is making nonsense of the constitution, to say that the word free is used as the correlative of slavery.

There is no language in the constitution, that expressly declares, or necessarily implies, that slavery was to exist under the constitution. To say, therefore, that the word free was used as the correlative of slaves, is begging the question that there were to be slaves; it is assuming the whole ground in dispute. Those who argue for slavery, must first prove, by language that can mean nothing less, that slavery was to be permitted under the constitution. Then they may be allowed to infer that the word free is used as its correlative. But until then, a different meaning must be given to the word, else the clause before cited is converted into nonsense.

On the other hand, in giving the word free the sense common at that day, to wit, a sense correlative with persons not naturalized, [167] and not possessed of equal political privileges with others, we assume the existence of no class of persons except those whom the constitution itself especially recognizes, to wit, those possessing full political rights, as citizens, or members of the state, and those unnaturalized persons who will not possess full political rights. The constitution explicitly recognizes these two classes, because it makes a distinction between them in the matter of eligibility to certain offices, and it also explicitly authorizes Congress to pass laws for the naturalization of those who do not possess full rights as citizens.

If, then, we take the word free in the sense correlative with unnaturalized persons, the word has a meaning that is already appropriate to the subject matter of the instrument, and requires no illegal assumptions to make it so.

On the other hand, if we use the word in the sense correlative with slaves, we either make nonsense of the language of the constitution, or else we assume the very point in dispute, viz., that there were to be slaves under the constitution; neither of which have we any right to do.

This argument is sufficient, of itself, to overthrow all the arguments that were ever made in favor of the constitutionality of slavery.

Substantially the whole argument of the advocates of slavery is founded on the assumption of the very fact in dispute, viz., that there was to be slavery under the constitution. Not being able to prove, by the words of the constitution, that there was to be any slavery under it, they assume that there was to be slavery, and then use that assumption to prove the meaning of the constitution itself. In other words, not being able to prove slavery by the constitution, they attempt to prove the meaning of the constitution by slavery. Their whole reasoning on this point is fallacious, simply because the legality of slavery, under the constitution, is itself a thing to be proved, and cannot be assumed.

The advocates of slavery cannot avoid this dilemma, by saying that slavery existed at the time the constitution was adopted; for many things existed at the time, such as theft, robbery, piracy, &c., which were not therefore to be legalized by the constitution. And slavery had no better constitutional or legal existence than either of these crimes.

Besides, even if slavery had been legalized (as it was not) by any of the then existing state constitutions, its case would have [168] been no better; for the United States constitution was to be the supreme law of the land, anything in the constitution or laws of any state to the contrary notwithstanding. The constitution being the supreme law, operating directly upon the people, and securing to them certain rights, it necessarily annulled everything that might be found in the state constitutions that was inconsistent with the freedom of the people to enjoy those rights. It of course would have annulled the legality of slavery, if slavery had then had any legal existence; because a slave cannot enjoy the rights secured by the United States constitution.

Further. The constitution is a political instrument, treating of men’s political rights and privileges. Its terms must therefore be taken in their political sense, in order to be appropriate to the subject matter of the instrument. The word free, in its political sense, appropriately describes men’s political rank as free and equal members of the state, entitled, of right, to the protection of the laws. On the other hand, the word free, in the sense correlative with slavery, has no appropriateness to the subject matter of such an instrument—and why? Because slavery is not, of itself, a political relation, or a political institution; although political institutions may, and sometimes do, recognize and legalize it. But, of itself, it is a merely private relation between one man and another, created by individual force, and not by political authority. Thus a strong man beats a weaker one, until the latter will obey him. This is slavery, and the whole of it; unless it be specially legalized. The United States constitution does not specially legalize it; and therefore slavery is no part of the subject matter of that instrument. The word free, therefore, in the constitution, cannot be said to be used as the correlative of slavery; because that sense would be entirely inappropriate to anything that is the subject matter of the instrument. It would be a sense which no other part of the constitution gives any occasion or authority for.

FOURTH RULE.

A fourth rule is, that where technical words are used, a technical meaning is to be attributed to them.

This rule is commonly laid down in the above general terms. It is, however, subject to these exceptions, viz., that where the technical sense would be inconsistent with, or less favorable to, justice, or not consonant to the context, or not appropriate to the nature of the subject, some other meaning may be adopted. Subject [169] to these exceptions, the rule is of great authority, for reasons that will hereafter appear.

Thus, in commercial contracts, the terms and phrases used in them are to be taken in the technical or professional sense common among merchants, if that sense be consonant to the context, and appropriate to the nature of the contracts.

In political contracts, the terms and phrases used in them are to be taken in the political and technical sense common in such instruments, if that sense be consonant to the context, and appropriate to the subject matter of the contracts.

Terms common and proper to express political rights, relations, and duties, are of course to be taken in the technical sense natural and appropriate to those rights, relations, and duties.

Thus, in political papers, such terms as liberty, allegiance, representation, citizenship, citizens, denizens, freemen, free subjects, free-born subjects, inhabitants, residents, people, aliens, allies, enemies, are all to be understood in the technical sense appropriate to the subject matter of the instrument, unless there be something else, in the instrument itself, that shows that some other meaning is intended.

Terms which, by common usage, are properly descriptive of the parties to, or members of, the compact, as distinguished from others, are to be taken in the technical sense, which describes them, as distinguished from others, unless there be, in the instrument itself, some unequivocal evidence that they are to be taken in a different sense.

The authority of this rule is so well founded in nature, reason, and usage, that it is almost strange that it should be questioned. It is a rule which everybody, by their common practice, admit to be correct; for everybody more naturally understands a word in its technical sense than in any other, unless that sense be inconsistent with the context.

Nevertheless, an attempt has been made by some persons to deny the rule, and to lay down a contrary one, to wit, that where a word has what they choose to call a common or popular meaning, and also a technical one, the former is to be preferred, unless there be something, in other parts of the instrument, that indicates that the technical one should be adopted.

The argument for slavery virtually claims, not only that this so called common and popular meaning of a word, (and especially of the word “free,”) is to be preferred to the technical one, but also that this simple preference is of sufficient consequence to outweigh [170] all considerations of justice and injustice, and indeed all, or nearly all, the other considerations on which legal rules of interpretation are founded. Nevertheless I am not aware that the advocates of slavery have ever had the good fortune to find a single instance where a court has laid it down, as a rule, that any other meaning is, of itself, preferable to the technical one; much less that that preference was sufficient, in cases where right and wrong were involved, to turn the scale in favor of the wrong. And if a court were to lay down such a rule, every one is at liberty to judge for himself of its soundness.

But inasmuch as this pretended rule is one of the main pillars, if not the main pillar, in support of the constitutionality of slavery, it is entitled to particular consideration.

The falsehood of this pretended rule will be evident when it is considered that it assumes that the technical meaning of a word is not the common and popular one; whereas it is the very commonness, approaching to uniformity, with which a word is used in a particular sense, in relation to particular things, that makes it technical.*

A technical word is a word, which in one profession, art, or trade, or in reference to particular subjects, is generally, or uniformly, used in a particular sense, and that sense a somewhat different one from those in which it is generally used out of that profession, art, or trade, or in reference to other subjects.

There probably is not a trade that has not its technical words. Even the cobbler has his. His ends are generally quite different things from the ends of other people. If we hear a cobbler speak of his ends, we naturally suppose he means the ends of his threads, because he has such frequent occasion to speak of and use them. If we hear other people speak of their ends, we naturally suppose that they mean the objects they have in view. With the cobbler, then, ends is a technical word, because he frequently or generally uses the word in a different sense from that in which it is used by other people.

Mechanics have very many technical words, as, for instance, to describe particular machines, parts of machines, particular processes [171] of labor, and particular articles of manufacture. And when we hear a mechanic use one of these words, we naturally suppose that he uses it in a technical sense—that is, with reference to his particular employment, machinery, or production. And why do we suppose this? Simply because it is more common for him to use the word in that sense than in any other, especially if he is talking of anything in regard to which that sense would be appropriate. If, however, his talk is about some other subject, in relation to which the technical sense of the word would not be appropriate, then we conclude that he uses it, not in the technical sense appropriate to his art, but in some other sense more appropriate to the subject on which he is speaking.

So, if we were to hear a banker speak of “the days of grace having expired,” we should naturally attach a very different meaning to the words from what we should if we were to hear them from the pulpit. We should suppose, of course, that he used them in the technical sense appropriate to his business, and that he had reference only to a promissory note that had not been paid when due.

If we were to hear a banker speak of a check, we should suppose he used the word in a technical sense, and intended only an order for money, and not a stop, hindrance, or restraint.

So, if one farmer were to say of another, He is a good husband, we should naturally infer that he used the word husband in the technical sense appropriate to his occupation, meaning that he cultivated and managed his farm judiciously. On the other hand, if we were to hear lawyers, legislators, or judges, talking of husbands, we should infer that the word was used only in reference to men’s legal relations to their wives. The word would be used in a technical sense in both cases.

So, if we were to hear a man called a Catholic priest, we should naturally infer that the word Catholic was used in its technical sense, that is, to describe a priest of the Catholic persuasion, and not a priest of a catholic, liberal, and tolerant spirit.

These examples might be multiplied indefinitely. But it will be seen from those already given that, so far from the technical sense and the common sense of words being opposed to each other, the technical sense is itself the common sense in which a word is used with reference to particular subjects.

These examples also show how perfectly natural, instead of unnatural, it is for us to attribute the technical meaning to a word, [172] whenever we are talking of a subject in relation to which that meaning is appropriate.

Almost every word of substantive importance, that is of frequent use in the law, is used in a technical sense—that is, in a sense having some special relation either to natural justice, or to men’s rights or privileges under the laws.

The word liberty, for instance, has a technical meaning in the law. It means, not freedom from all restraint, or obligation; not a liberty to trespass with impunity upon other men’s rights; but only that degree of liberty which, of natural right, belongs to a man; in other words, the greatest degree of liberty that he can exercise, without invading or immediately endangering the rights of others.

Unless nearly all words had a technical meaning in the law, it would be impossible to describe laws by words; because words have a great variety of meanings in common use; whereas the law demands certainty and precision. We must know the precise meaning of a word, before we can know what the law is. And the technical meaning of a word is nothing more than a precise meaning, that is appropriate, and commonly applied, to a particular subject, or class of subjects.

How would it be possible, for instance, to have laws against murder, unless the word murder, or some other word, were understood, in a technical sense, to describe that particular mode of killing which the law wishes to prohibit, and which is morally and legally distinguishable from all other modes of killing?

So indispensable are precision and certainty, as to the meaning of words used in laws, that where a word has not a technical meaning already known, the legislature frequently define the meaning they intend it shall bear in particular laws. Where this is not done, the courts have to give it a precise and definite meaning, before the law can be administered; and this precise meaning they have to conjecture, by reference to the context, and to the presumed object of all laws, justice.

What perfect chaos would be introduced into all our existing laws and contracts, if the technical meanings of all the words used in them were obliterated from our minds. A very large portion of the laws and contracts themselves would be substantially abolished, because all certainty as to their meaning would be extinguished. Suppose, for instance, the technical meanings of liberty, trial by jury, habeas corpus, grand jury, petit jury, murder, rape [173] arson, theft, indictment, trial, oath, testimony, witness, court, verdict, judgment, execution, debt, dollar, bushel, yard, foot, cord, acre, rod, pound, check, draft, order, administrator, executor, guardian, apprentice, copartner, company, husband, wife, marriage, lands, goods, real estate, personal estate, highway, citizen, alien, subject, and an almost indefinite number of other words, as they now stand in our laws and contracts, were at once erased from our minds, and the legal meanings of the same words could only be conjectured by the courts and people from the context, and such other circumstances as might afford grounds for conjecture. Suppose all this, and where would be our existing laws and contracts, and the rights dependent upon them? We might nearly as well throw our statute-books, and all our deeds, notes, and other contracts, into the fire, as to strike out the technical meanings of the words in which they are written. Yet for the courts to disregard these technical meanings, is the same thing as to strike them out of existence.

If all our constitutions, state and national, were to be annulled at a blow, with all the statutes passed in pursuance of them, it would hardly create greater confusion as to men’s rights, than would be created by striking out from men’s minds all knowledge of the technical meanings of the words now used in writing laws and contracts. And the reconstruction of the governments, after such an abolition of them, would be a much less labor than the reconstruction of a legal language, in which laws and contracts could be written with the same conciseness and certainty as now. The former would be the work of years, the latter of centuries.

The foregoing considerations show in what ignorance and folly are founded the objections to the technical meanings of words used in the laws.

The real difference between the technical meaning of a word, and any other meaning, is just the difference between a meaning that is common, certain, and precise, and one that is, at best, less common, less certain, and less precise, and perhaps neither common, certain, nor precise.

The authorities in favor of the technical meaning, are given in the note, and are worthy of particular attention.*

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The argument, and the whole argument, so far as I know, in favor of what is called the common or popular meaning, is, that that meaning is supposed to be better known by the people, and therefore it is more probable they would use it, than the other.

[175]

But this argument, if not wholly false, is very shallow and frivolous; for everybody is presumed to know the laws, and therefore they are presumed to be familiar with the technical meanings of all the technical words that are of frequent use in writing the laws. [176] And this presumption of law corresponds with the general fact. The mass of the people, who are not learned in the law, but who nevertheless have general ideas of legal matters, naturally understand the words of the laws in their legal senses, and attach their legal senses to them without being aware that the legal sense is a technical one. They have been in the habit of thinking that the technical meaning of words was something dark and recondite, (simply because some few technical terms are in another language than the English,) when in reality they themselves are continually using a great variety of words, indeed, almost all important words, in a technical or legal sense, whenever they are talking of legal matters.

But whether the advocates of slavery can, or cannot, reconcile themselves to the technical meaning of the word “free,” they cannot, on their own construction of the constitution, avoid giving the word a precise and technical sense, to wit, as the correlative of slavery, as distinguished from all other forms of restraint and servitude.

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The word slaves, if it had been used in the constitution, (instead of the words “all other persons,”) would have itself been held to be used in a technical sense, to wit, to designate those persons who were held as chattels, as distinguished from serfs, villeins, apprentices, servants for years, persons under twenty-one years of age, prisoners of war, prisoners for debt, prisoners for crime, soldiers, sailors, &c., &c. The word slaves, then, being technical, the word free must necessarily have been taken in a technical sense, to wit, as the precise correlative of chattel slaves, and not as the correlative of persons held under any of these other forms of restraint or servitude. So that on the score of technicality, (even if that were an objection,) nothing would be gained by adopting the sense correlative with slaves.

But it is a wholly erroneous assumption that the use of the word “free,” in a sense correlative with slaves, was either a common or popular use of the word. It was neither common nor popular, if we may judge of that time by the present; for now such a use of it is seldom or never heard, unless made with special reference to the classification which it is assumed that the constitution has established on that point.

The common and popular classification of the people of this country, with reference to slavery, is by the terms, white, free colored, and slaves. We do not describe anybody as free, except the free colored. The term white carries with it the idea of liberty; and it is nearly or quite universally used in describing the white people of the South, as distinguished from the slaves.

But it will be said by the advocates of slavery, that the term white was not used in the constitution, because it would not include all the free; that the term free was used in order to include both white and free colored. But this assertion is but another wholly gratuitous assumption of the facts, that there were to be slaves under the constitution, and that representation and taxation were to be based on the distinction between the slaves and the free; both of which points are to be proved, not assumed.

If there were to be slaves under the constitution, and if representation and taxation were to be based upon the distinction between the slaves and the free, then the constitution undoubtedly used the word free, instead of white, in order to include both the white and free colored in the class of units. But if, as we are bound to presume until the contrary is proved, there were to be no slaves under the constitution, or if representation and taxation were not founded [178] on the distinction between them and the free, then the constitution did not use the word free for such a purpose. The burden is upon the advocates of slavery to prove, first, that there were to be slaves under the constitution, and, secondly, that representation and taxation were to be based on the distinction between them and the free, before they can say that the word free was used for the purpose of including the white and free colored.

Now the whole argument, or rather assertion, which the advocates of slavery can offer in support of these points, which they are necessitated to prove, is, that the word free is commonly and popularly used as the correlative of slaves. That argument, or assertion, is answered by the fact that the word free is not commonly or popularly used as the correlative of slaves; that the terms white and free colored are the common terms of distinction between the free and the slaves. Now these last named facts, and the argument resulting from them, are not met at all, by saying that if there were to be slaves, and if representation and taxation were to be based on the distinction between them and the free, the word free would then have been used, in preference to any other, in order to include the free colored in the same class with the whites.

It must first be proved that there were to be slaves under the constitution, and that representation and taxation were to be based on the distinction between them and the free, before it can be said that the word free was used in order to include both white and free colored. Those points not being proved, the allegation, founded on the assumption of them, is good for nothing.

The use of the word free, then, in a sense correlative with slavery, not being the common and popular use of the word at the time the constitution was adopted, all the argument, founded on that assumption, falls to the ground.

On the other hand, the use of the word free, in a political sense, as correlative either with aliens, or with persons not possessed of equal political privileges with others, was the universal meaning of the word, in all documents of a fundamental and constitutional character, up to the time when the constitution of the United States was adopted—(that is, when it was used, as it is in the United States constitution, to describe one person, as distinguished from another living under the same government.) Such was the meaning of the word in the colonial charters, in several of the State constitutions existing in 1789, and in the articles of confederation Furthermore, it was a term that had very recently been in common [179] use in political discussions, and had thus been made perfectly familiar to the people. For example, the discussions immediately preceding the revolution, had all, or nearly all, turned upon the rights of the colonists, as “free British subjects.” In fact, the political meaning of the word free was probably as familiar to the people of that day as the meaning of the word citizen is now; perhaps, indeed, more so, for there is some controversy as to the legal meaning of the word citizen. So that all the argument against the technical sense of the term, on the ground of its not being the common sense, is founded in sheer ignorance or fraud.*

Finally; unless the word free be taken in the technical sense common at that day, it is wholly an unsettled matter what sense should be given to it, in the constitution. The advocates of slavery take it for granted that, if it be not taken in its common and technical sense, it must be taken in the sense correlative with slavery. But that is all gratuitous. There are many kinds of freedom besides freedom from chattel slavery; and many kinds of restraint besides chattel slavery; restraints, too, more legitimate in their nature, and better legitimated under the laws then existing, than slavery. And it may require a great deal more argument than some persons imagine, to settle the meaning of the word free, as used in the constitution, if its technical meaning be discarded.

I repeat, it is a wholly gratuitous assumption that, if the technical meaning of the word free be discarded, the sense correlative with slavery must be adopted. The word “free,” in its common and popular sense, does not at all imply, as its correlative, either property in man, or even involuntary service or labor. It, therefore, does not imply slavery. It implies, as its correlative, simply restraint. It is, of itself, wholly indefinite as to the kind of restraint implied. It is used as the correlative of all kinds of restraint, imprisonment, compulsion, and disability, to which mankind are liable. Nothing, therefore, can be inferred from the word alone, as to the particular kind of restraint implied, in any case. It is indispensable to know the subject matter, about which the word is used, in order to know the kind of restraint implied. And [180] if the word had had no technical meaning appropriate to the subject matter of the constitution, and if no other part of the constitution had given us any light as to the sense of the word in the representative clause, we should have been obliged to conjecture its correlative. And slavery is one of the last correlatives that we should have been at liberty to adopt. In fact, we should have been obliged to let the implication remain inoperative for ambiguity, and to have counted all men as “free,” (for reasons given under rule seventh,) rather than have adopted slavery as its correlative.

FIFTH RULE.

A fifth rule of interpretation is, that the sense of every word, that is ambiguous in itself, must, if possible, be determined by reference to the rest of the instrument.

The importance of this rule will be seen, when it is considered that the only alternatives to it are, that we must go out of the instrument, and resort to conjecture, for the meaning of ambiguous words.

The rule is an universal one among courts, and the reasons of it are as follows:—

Vattel says, “If he who has expressed himself in an obscure or equivocal manner, has spoken elsewhere more clearly on the same subject, he is the best interpreter of himself. We ought to interpret his obscure and vague expressions, in such a manner, that they may agree with those terms that are clear and without ambiguity, which he has used elsewhere, either in the same treaty, or in some other of the like kind. In fact, while we have no proof that a man has changed his mind, or manner of thinking, it is presumed that his thoughts have been the same on the same occasions; so that if he has anywhere clearly shown his intention, with respect to anything, we ought to give the same sense to what he has elsewhere said obscurely on the same affair.”

—B. 2, ch. 17, sec. 284.

Also; “Frequently, in order to abridge, people express imperfectly, and with some obscurity, what they suppose is sufficiently elucidated by the things that preceded it, or even what they propose to explain afterwards; and, besides, the expressions have a force, and sometimes even an entirely different signification, according to the occasion, their connection, and their relation to other words. The connection and train of the discourse is also another source of interpretation. We ought to consider the whole discourse together, in order perfectly to conceive the sense of it, and to give to each expression, not so much the signification it may receive in [181] itself, as that it ought to have from the thread and spirit of the discourse. This is the maxim of the Roman law: Incivile est, nist tota lege perspecta una aliqua particula ejus proposita, judicare, vel respondere.” (It is improper to judge of, or answer to, any one thing proposed in a law, unless the whole law be thoroughly examined.)

—Same, sec. 285.

Also; “The connection and relation of things themselves, serve also to discover and establish the true sense of a treaty, or of any other piece. The interpretation ought to be made in such a manner, that all the parts appear consonant to each other; that what follows agree with what went before; at least, if it does not manifestly appear, that by the last clauses, something is changed that went before. For it is presumed that the authors of the treaty have had an uniform and steady train of thought; that they did not desire things which ill agreed with each other, or contradictions; but rather that they have intended to explain one thing by another; and, in a word, that one and the same spirit reigns throughout the same work, or the same treaty.”

—Same, sec. 286.

The Sup. Court of Mass. says, “When the meaning of any particular section or clause of a statute is questioned, it is proper to look into the other parts of the statute; otherwise, the different sections of the same statute might be so construed as to be repugnant.”

—1 Pickering, 250.

Coke says, “It is the most natural and genuine exposition of a statute to construe one part of the statute by another part of the same statute.”

—Co. Lit., 381, b.

The foregoing citations indicate the absolute necessity of the rule, to preserve any kind of coherence or congruity between the different parts of an instrument.

If we were to go out of an instrument, instead of going to other parts of it, to find the meaning of every ambiguous word, we should be liable to involve the whole instrument in all manner of incongruities, contradictions, and absurdities. There are hardly three consecutive lines, of any legal instrument whatever, the sense of which can be understood without reference to other parts of the instrument.

To go out of an instrument, instead of going to other parts of it, to find the sense of an ambiguous word, is also equivalent to saying that the instrument itself is incomplete.

Apply this rule, then, to the word “free,” and the words “all other persons.” The sense of these words being ambiguous in themselves, the rest of the instrument must be examined to find the persons who may properly be denominated “free persons,” and “all other persons.” In making this examination, we shall [182] find no classes mentioned answering to these descriptions, but the native and naturalized persons on the one hand, and those not naturalized on the other.

SIXTH RULE.

A sixth rule of interpretation, and a very important, inflexible, and universal one, applicable to contracts, is, that a contract must never, if it be possible to avoid it, be so construed, as that any one of the parties to it, assuming him to understand his rights, and to be of competent mental capacity to make obligatory* contracts, may not reasonably be presumed to have consented to it.

If, for instance, two men were to form a copartnership in business, their contract, if its language will admit of any other possible construction, must not be so construed as to make it an agreement that one of the partners shall be the slave of the other; because such a contract would be unnatural, unreasonable, and would imply that the party who agreed to be a slave was incompetent to make a reasonable, and therefore obligatory, contract.†

This principle applies to the constitution of the United States, and to all other constitutions that purport to be established by “the people;” for such constitutions are, in theory, but contracts of the people with each other, entered into by them severally for their individual security and benefit. It also applies equally to all statutes made in pursuance of such constitutions, because the statutes derive their authority from the constitutional consent or contract of the people that such statutes may be enacted and enforced. The authority of the statutes, therefore, as much rests on contract, as does the authority of the constitutions themselves. To deny that constitutions and statutes derive their authority from contract, is to found the government on arbitrary power.

By the rule laid down, these statutes and constitutions, therefore, must not be construed, (unless such construction be unavoidable,) so as to authorize anything whatever to which every single individual of “the people” may not, as competent men, knowing [183] their rights, reasonably be presumed to have freely and voluntarily assented.

Now the parties to the contract expressed in the constitution of the United States, are “the people of the United States,” that is, the whole people of the United States. The description given of the parties to the constitution, as much includes those “people of the United States” who were at the time treated as slaves, as those who were not. The adoption of the constitution was not, in theory, the exercise of a right granted to the people by the State legislatures, but of the natural original right of the people themselves, as individuals. (This is the doctrine of the supreme court, as will presently appear.) The slaves had the same natural competency and right to establish, or consent to, government, that others had; and they must be presumed to have consented to it equally with others, if the language of the constitution implies it. We certainly cannot go out of the constitution to find the parties to it. And the constitution affords no legal ground whatever for separating the then “people of the United States” into two classes, and saying that one class were parties to the constitutional contract, and that the other class were not. There would be just as much reason in saying that the terms “the people” used in the constitutions of Massachusetts, Maine, New Hampshire, and Vermont, to describe the parties to those constitutions, do not include all “the people” of those States, as there is for saying that all “the people of the United States” are not included in the constitutional description of them, and are not, therefore, parties to the constitution of the United States.

We are obliged to take this term, “the people,” in its broadest sense, unless the instrument itself have clearly and palpably imposed some restriction upon it.

It is a universal rule of courts, that where justice will be promoted by taking a word in the most comprehensive sense in which it can be taken consistently with the rest of the instrument, it must be taken in that sense, in order that as much justice as possible may be accomplished. On the other hand, where a word is unfavorable to justice, it must be taken in its most restricted sense, in order that as little injustice as possible may be accomplished.*

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In conformity with this rule, the words, “the people of the United States,” would have to be taken in their most extensive sense, even though they stood but on an equal ground with other words in the instrument. But, in fact, they stand on privileged ground. Their meaning is to be determined before we proceed to the interpretation of the rest of the instrument. The first thing to be ascertained, in regard to an instrument, always is, who are the parties to it; for upon that fact may depend very many important things in the construction of the rest of the instrument. In short, the body of the instrument is to be interpreted with reference to the parties, and not the parties conjectured by reference to the body of the instrument. We must first take the instrument’s own declaration as to who the parties are; and then, if possible, make the body of the instrument express such, and only such, intentions, as all the parties named may reasonably be presumed to have agreed to.

Assuming, then, that all “the people of the United States” are parties to the constitutional contract, it is manifest, that it cannot reasonably be presumed that any, even the smallest, portion of them, knowing their natural rights, and being competent to make a reasonable contract of government, would consent to a constitution that should either make them slaves, or assist in keeping them in slavery. Such a construction, therefore, must not be put upon the contract, if the language admits of any other. This rule alone, then, is sufficient to forbid a construction sanctioning slavery.

It may, perhaps, be argued that the slaves were not parties to the constitution, inasmuch as they never, in fact, consented to it. But this reasoning would disfranchise half the population; for there is not a single constitution in the country—state, or national—to which one half of the people who are, in theory, parties to it, ever, in fact and in form, agreed. Voting for and under a constitution, are almost the only acts that can, with any reason at all, be considered a formal assent to a constitution. Yet a bare majority [185] of the adult males, or about one tenth of the whole people, is the largest number of “the people” that has ever been considered necessary, in this country, to establish a constitution. And after it is established, only about one fifth of the people are allowed to vote under it, even where suffrage is most extended. So that no formal assent to a constitution is ever given by the people at large. Yet the constitutions themselves assume, and virtually assert, that all “the people” have agreed to them. They must, therefore, be construed on the theory that all have agreed to them, else the instruments themselves are at once denied, and, of course, invalidated altogether. No one, then, who upholds the validity of the constitution, can deny its own assertion, that all “the people” are parties to it. Besides, no one, unless it be the particular individuals who have not consented, can take advantage of the fact that they have not consented.

And, in practice, we do not allow even such individuals to take advantage of the fact of their non-consent, to avoid the burdens imposed by the instrument; and not allowing the individuals themselves to take advantage of it for that purpose, no other person, certainly, can be allowed to take advantage of it to shut them out from its protection and benefits.

The consent, then, of “the people” at large is presumed, whether they ever have really consented, or not. Their consent is presumed only on the assumption that the rights of citizenship are valuable and beneficial to them, and that if they understood that fact, they would willingly give their consent in form. Now, the slaves, if they understood that the legal effect of their consenting to the constitution would be “to secure the blessings of liberty to themselves and their posterity,” would doubtless all be as ready to give their actual assent to it, as any other portion of “the people” can be. Inasmuch, then, as such would be the legal effect of their consent, there is no other class of “the people of the United States,” whose consent to the constitution may, with so much reason, be presumed; because no other class have so much to gain by consenting to it. And since the consent of all is presumed, solely on the ground that the instrument is beneficial to them, regardless of their actual assent, there is no ground for excluding, or for not presuming, the consent of those, whose consent, on account of its beneficial operation upon their interests and rights, can be most reasonably and safely presumed.

But it may, perhaps, be said that it cannot reasonably be presumed [186] that the slaveholders would agree to a constitution, which would destroy their right to their slave property.

One answer to this argument is, that the slaveholders had, at the time, no legal or constitutional right to their slaves, under their State constitutions, as has already been proved; and they must be presumed to have known that such was the fact, for every one is presumed to know the law.

A second answer is, that it is, in law, considered reasonable—as it is, in fact, one of the highest evidences of reason—for a man voluntarily to do justice, against his apparent pecuniary interests.

Is a man considered non compos mentis for restoring stolen property to its rightful owner, when he might have retained it with impunity? Or are all the men, who have voluntarily emancipated their slaves, presumed to have been fools? incompetent to make reasonable contracts? or even to have had less reason than those who refuse to emancipate? Yet this is the whole argument of those, who say that it cannot be supposed that the slaveholders would agree to a free constitution. The argument would have been good for nothing, even if the then existing State constitutions had authorized slavery.

There would be just as much reason in saying that it cannot be supposed that thieves, robbers, pirates, or criminals of any kind, would consent to the establishment of governments that should have authority to suppress their business, as there is in saying that slaveholders cannot be supposed to consent to a government that should have power to suppress slaveholding. If this argument were good for anything, we should have to apply it to the state constitutions, and construe them, if possible, so as to sanction all kinds of crimes which men commit, on the ground that the criminals themselves could not be supposed to have consented to any government that did not sanction them.

The truth is, that however great a criminal a man may have been, it is considered a very reasonable act for him to agree to do justice in future; and therefore, when communities establish governments for the purpose of maintaining justice and right, the assent of all the thieves, robbers, pirates, and slaveholders, is as much presumed, as is the assent of the most honest portion of community. Governments for the maintenance of justice and liberty could not be established by the consent of the whole people on any other ground.

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It would be a delectable doctrine, indeed, for courts to act upon, in construing a constitution, to presume that it was intended to subserve the criminal purposes of a few of the greatest villains in community; and then to force all its honest words to yield to that presumption, on the ground that otherwise these villains could not be presumed to have agreed to it. Yet this is the doctrine practised upon by all who uphold the constitutionality of slavery. They know that the whole people, honest and dishonest, slaveholders and non-slaveholders alike, must be presumed to have agreed either to an honest or a dishonest constitution; and they think it more reasonable to presume that all the honest people agreed to turn knaves, than that all the knaves agreed to become honest. This presumption is the polar star of all their reasonings in favor of the constitutionality of slavery. If this presumption be a true guide in the interpretation of all other constitutions, laws, and contracts, it is, of course, a correct one for interpreting the constitution of the United States; otherwise not.

The doctrine, that an instrument, capable of an honest meaning, is to be construed into a dishonest one, merely because one in forty of the parties to it has been a dishonest man up to the time of making the agreement, (and probably not more than one in forty of “the people of the United States” were slaveholders,) would not only put it nearly or quite out of the power of dishonest men to make contracts with each other that would be held honest in the sight of the law, but it would even put it nearly or quite out of the power of honest men to make contracts with dishonest ones, that would be held honest in the sight of the law. All their contracts, susceptible of a dishonest meaning, would have to be so construed; and what contract is ever entered into by honest with dishonest men, that is not susceptible of such a construction, especially if we may go out of the contract, and inquire into the habits, character, and business of each of the parties, in order to find that one of them is a man who may be suspected of a dishonest motive, and this suspected motive of the one may then be attributed to the others as their true motive.

Such a principle of law would virtually cut off dishonest men from all right to make even honest contracts with their fellowmen, and would be a far greater calamity to themselves than the doctrine that holds all their contracts to be honest, that are susceptible of an honest construction; because it is indispensable to a dishonest man’s success and well-being in life that a large portion of his contracts should be held honest and valid.

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Under a principle of law, that presumes everybody dishonest, and construes their constitutions, laws, and contracts accordingly, pandemonium would be established at once, in which dishonest men would stand no better chance than others; and would therefore have no more motive than others for sustaining the government.

In short, it is obvious that government would not, and could not, be upheld for an instant, by any portion of society, honest or dishonest, if such a presumption were to be adopted by the courts as a general rule for construing either constitutions, laws, or private contracts. Yet, let it be repeated, and never forgotten, that this presumption is indispensable to such a construction of the constitution as makes slavery constitutional. It is the sine qua non to the whole fabric of the slaveholding argument.

There is, then, no legal ground whatever for not presuming the consent of slaves, slaveholders, and non-slaveholders to the constitution of the United States, on the supposition that it prohibits slavery. Consequently, there is no legal ground for denying that the terms “the people of the United States,” included the whols of the then people of the United States. And if the whole of the people are parties to it, it must, if possible, be so construed as to make it such a contract as each and every individual might reasonably agree to. In short, it must, if possible, be so construed as not to make any of the parties consent to their own enslavement. Such a construction is possible, and being possible, is necessarily the true construction.

The constitution of the United States, therefore, would have abolished slavery, by making the slaves parties to it, even though the state constitutions had previously supported it.*

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SEVENTH RULE.

The seventh rule of interpretation is the one that has been repeatedly cited from the supreme court of the United States, to wit:

“Where rights are infringed, where fundamental principles are overthrown, where the general system of the laws is departed from, the legislative intention must be expressed with irresistible clearness, to induce a court of justice to suppose a design to effect such objects.”

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The pith of this rule is, that any unjust intention must be “expressed with irresistible clearness,” to induce a court to give a law an unjust meaning.

The word “expressed” is a very important one, in this rule. It is necessary, therefore, for the benefit of the unprofessional reader, to define it.

In law, a thing is said to be “expressed,” only when it is uttered, or written out, embodied in distinct words, in contradistinction to its being inferred, implied, or gathered from evidence exterior to the words of the law.

The amount of the rule, then, is, that the court will never, through inference, nor implication, attribute an unjust intention to a law; nor seek for such an intention in any evidence exterior to the words of the law. They will attribute such an intention to the law, only when such intention is written out in actual terms; and in terms, too, of “irresistible clearness.”

The rule, it will be observed, does not forbid a resort to inference, implication, or exterior evidence, to help out the supposed meaning of, or to solve any ambiguities in, a law that is consistent with justice. It only forbids a resort to such means to help out the supposed meaning of, or to solve any ambiguities in, an unjust law. It virtually says that if an ambiguous law can possibly be interpreted favorably to justice, it shall be thus interpreted. But if it cannot be thus interpreted, it shall be suffered to remain inoperative—void for its ambiguity—rather than the court will help out its supposed meaning by inference, implication, or exterior evidence.

Is this rule a sound one? It is; and for the following reasons:

Certainty is one of the vital principles of law. Properly speaking, nothing is law that is uncertain. A written law is only what is written. It is not certain, any further than it is written. If, then, we go out of the written law, we necessarily go into the region of uncertainty. It must, also, generally be presumed, that the legislature intend nothing more than they have chosen to communicate. It is therefore straining matters, and going beyond strict legal principles, to go out of the words of a law, to find its meaning, in any case whatever, whether for a good purpose, or a bad one.

It will be asked, then, “Why resort to inference, implication, and exterior evidence, to solve the ambiguities in a just law?” The answer is this: Such is the variety of senses in which language [191] is used by different persons, and such the want of skill in many of those who use it, that laws are very frequently left in some ambiguity. Men, nevertheless, act upon them, assuming to understand them. Their rights thus become involved in the efficacy of the law, and will be sacrificed unless the law be carried into effect. To save these rights, and for no other purpose, the courts will venture to seek the meaning of the law in exterior evidence, when the intent of the law is good, and the apparent ambiguity not great. Strictly speaking, however, even this proceeding is illegal. Nothing but the necessity of saving men’s rights, affords any justification for it. But where a law is ambiguous and unjust, there is no such necessity for going out of its words to settle its probable meaning, because men’s rights will not be saved, but only sacrificed, by having its uncertainty settled, and the law executed. It is, therefore, better that the law should perish, be suffered to remain inoperative for its uncertainty, than that its uncertainty should be removed, (or, rather, attempted to be removed, for it cannot be removed absolutely, by exterior evidence,) and the law carried into effect for the destruction of men’s rights.

Assuming, then, the rule of the court to be sound, are the rules laid down in the “Unconstitutionality of Slavery,”* that have since been somewhat questioned,† embraced in it? Those rules are as follows:

1. “One of them is, that where words are susceptible of two meanings, one consistent, and the other inconsistent, with justice and natural right, that meaning, and only that meaning, which is consistent with right, shall be attributed to them, unless other parts of the instrument overrule that interpretation.”

This rule is clearly embraced in the rule of the court; for the rule of the court requires the unjust meaning to be “expressed with irresistible clearness,” before it can be adopted; and an unjust meaning certainly cannot be said to be “expressed with irresistible clearness,” when it is expressed only by words, which, consistently with the laws of language, and the rest of the instrument, are susceptible of an entirely different—that is, a perfectly innocent—meaning.

2. “Another rule, (if, indeed, it be not the same,) is, that no language except that which is peremptory, and no implication, [192] except one that is inevitable, shall be held to authorize or sanction anything contrary to natural right.”

This rule is also clearly embraced in the rule of the court; for the rule of the court requires that the unjust intention be “expressed,” that is, uttered, written out in terms, as distinguished from being inferred, or implied. The requirement, also, that it be “expressed with irresistible clearness,” is equivalent to the requirement that the language be “peremptory.”

3. “Another rule is, that no extraneous or historical evidence shall be admitted to fix upon a statute an unjust or immoral meaning, when the words themselves of the act are susceptible of an innocent one.”

This rule is also clearly embraced in the rule of the court; for the rule of the court requires, not only that the unjust intention be “expressed,” written out, embodied in words, as distinct from being inferred, implied, or sought in exterior historical evidence, but also that it be embodied in words of “irresistible clearness.” Now, words that express their intention with “irresistible clearness,” can of course leave no necessity for going out of the words, to “extraneous or historical evidence,” to find their intention.

But it is said that these rules are in conflict with the general rule, that where a law is ambiguous, the probable intent of the legislature may be ascertained by extraneous testimony.

It is not an universal rule, as has already been shown, that even where a law, as a whole, is ambiguous, the intentions of the legislature may be sought in exterior evidence. It is only where a just law is ambiguous, that we may go out of its words to find its probable intent. We may never do it to find the probable intent of an unjust one that is ambiguous; for it is better that an unjust law should perish for uncertainty, than that its uncertainty should be solved by exterior evidence, and the law then be executed for the destruction of men’s rights.

Where only single words or phrases in a law are ambiguous, as is the case with the constitution of the United States, the rule is somewhat different from what it is where the law, as a whole, is ambiguous. In the case of single words and phrases that are ambiguous, all the rules applicable to ambiguous words and phrases must be exhausted in vain, before resort can be had to evidence exterior to the law, or the words and phrases be set down as sanctioning injustice. For example; to settle the meaning of an ambiguous word or phrase, we must, before going out of the [193] instrument, refer to all the other parts of the instrument itself, to its preamble, its general spirit and object, its subject matter, and, in the case of the constitution, to “the general system of the laws” authorized and established by it. And the ambiguous word or phrase must be construed in conformity with these, if possible, especially when these are favorable to justice. And it is only when all these sources of light have failed to suggest a just, reasonable, and consistent meaning, that we can go out of the instrument to find the probable meaning.

If, when a single word or phrase were ambiguous, we could at once go out of the instrument, (before going to other parts of it,) to find the probable intent of that single word or phrase, and could determine its intent, independently of its relation to the rest of the instrument, we should be liable to give it a meaning irrelevant to the rest of the instrument, and thus involve the whole instrument in absurdity, contradiction, and incongruity.

There are only four or five single words and phrases in the constitution, that are claimed to be ambiguous in regard to slavery. All the other parts of the instrument, its preamble, its prevailing spirit and principles, its subject matter, “the general system of the laws” authorized by it, all repel the idea of its sanctioning slavery. If, then, the ambiguous words and phrases be construed with reference to the rest of the instrument, there is no occasion to go out of the instrument to find their meaning.

But, in point of fact, the words of a law never are ambiguous, legally speaking, where the alternative is only between a meaning that is consistent, and one that is inconsistent, with natural right; for the rule that requires the right to be preferred to the wrong, is imperative and universal in all such cases; thus making the legal meaning of the word precisely as certain, as though it could, in no case, have any other meaning. It thus prevents the ambiguity, which, but for the rule, might have existed.

This rule, that a just, in preference to an unjust, meaning must be given to a word, wherever it is possible, consistently with the rest of the instrument, obviously takes precedence of the rule that permits a resort to exterior evidence; and for the following reasons:—

1. Otherwise, the rule in favor of the just meaning could seldom or never be applied at all, because when we have gone out of the words of the law, we have gone away from those things to which the rule applies. The exterior evidence which we should [194] find, would not necessarily furnish any opportunity for the application of the rule. This rule, therefore, of preferring the just to the unjust meaning of a word, could hardly have had an existence, except upon the supposition that it was to be applied to the words given in the law itself. And if applied to the words given in the law itself, it of course settles the meaning, and there is then no longer any occasion to go out of the law to find its meaning.

2. Nothing would be gained by going out of a law to find evidence of the meaning of one of its words, when a good meaning could be found in the law itself. Nothing better than a good meaning could be expected to be found by going out of the law. As nothing could be gained, then, by going out of the law, the only object of going out of it would be to find an unjust meaning; but that, surely, is no sufficient reason for going out of it. To go out of a law to find an unjust meaning for its words, when a just meaning could be found in the law itself, would be acting on the principle of subverting all justice, if possible.

3. It would hardly be possible to have written laws, unless the legal meaning of a word were considered certain, instead of ambiguous, in such cases as this; because there is hardly any word used in writing laws, which has not more than one meaning, and which might not therefore be held ambiguous, if we were ever to lose sight of the fact, or abandon the presumption, that justice is the design of the law. To depart from this principle would be introducing universal ambiguity, and opening the door to universal injustice.

4. Certainty and right are the two most vital principles of the law. Yet certainty is always sacrificed by going out of the words of the law; and right is always liable to be sacrificed, if we go out of the words, with liberty to choose a bad meaning, when a good meaning can be found in the words themselves; while both certainty and right are secured by adhering uniformly to the rule of preferring the just to the unjust meaning of a word, wherever the two come in collision. Need anything more be said to prove the soundness of the rule?

The words of a law, then, are never ambiguous, legally speaking, when the only alternative is between a just and an unjust meaning. They are ambiguous only when both meanings are consistent with right, or both inconsistent with it.

In the first of these two cases, viz., where both meanings are consistent with right, it is allowable, for the sake of saving the [195] rights dependent on the efficacy of the law, to go to extraneous history to settle the probable intention of the legislature. But in the latter case, viz., where both meanings are inconsistent with right, it is not allowable to go out of the words of the law itself, to ascertain the legislative intention. The law must rather be suffered to remain inoperative for its uncertainty.

The rule, quoted from the supreme court, comes fully up to these principles; for that rule requires, in order that an unjust law may be carried into effect, that the unjust intent be “expressed,” as distinguished from being inferred, implied, or sought in exterior evidence. It must also be “expressed with irresistible clearness.” If it be left in an uncertainty, the law will be construed in favor of the right, if possible; if not, it will be suffered to perish for its ambiguity.

Apply, then, this rule of the court, in all its parts, to the word “free,” and the matter will stand thus.

1. A sense correlative with aliens, makes the constitution consistent with natural right. A sense correlative with slaves, makes the constitution inconsistent with natural right. The choice must therefore be made of the former sense.

2. A sense correlative with aliens, is consistent with “the general system of the laws” established by the constitution. A sense correlative with slavery, is inconsistent with that system. The former sense then must be adopted.

3. If a sense correlative with aliens be adopted, the constitution itself designates the individuals to whom the word “free,” and the words “all other persons” apply. If a sense correlative with slaves be adopted, the constitution itself has not designated the individuals to whom either of these descriptions apply, and we should have to go out of the constitution and laws of the United States to find them. This settles the choice in favor of the former sense.

4. Even if it were admitted that the word “free” was used as the correlative of slaves, still, inasmuch as the constitution itself has not designated the individuals who may, and who may not, be held as slaves, and as we cannot go out of the instrument to settle any ambiguity in favor of injustice, the provision must remain inoperative for its uncertainty; and all persons must be presumed free, simply because the constitution itself has not told us who may be slaves.

Apply the rule further to the words “importation of persons,” [196] and “service and labor,” and those words wholly fail to recognize slavery.

Apply the rule only to the word “free,” and slavery is unconstitutional; for the words “importation of persons,” and “service and labor,” can have no claims to be considered recognitions or sanctions of slavery, unless such a signification be first given to the word “free.”

EIGHTH RULE.

An eighth rule of interpretation is, that where the prevailing principles and provisions of a law are favorable to justice, and general in their nature and terms, no unnecessary exception to them, or to their operation, is to be allowed.

It is a dictate of law, as of common sense—or rather of law, because of common sense—that an exception to a rule cannot be established, unless it be stated with at least as much distinctness and certainty as the rule itself, to which it is an exception; because otherwise the authority of the rule will be more clear and certain, and consequently more imperative, than that of the exception, and will therefore outweigh and overbear it. This principle may justly be considered a strictly mathematical one. It is founded simply on the necessary preponderance of a greater quantity over a less. On this principle, an exception to a general law cannot be established, unless it be expressed with at least as much distinctness as the law itself.

In conformity with this principle, it is the ordinary practice, in the enactment of laws, to state the exceptions with the greatest distinctness. They are usually stated in a separate sentence from the rest of the law, and in the form of a proviso, or exception, commencing with the words “Provided, nevertheless,” “Excepting, however,” or words of that kind. And the language of the proviso is generally even more emphatic than that of the law, as it, in reality, ought to be, to preponderate against it.

This practice of stating exceptions has been further justified, and apparently induced, by that knowledge of human nature which forbids us to understand a man as contradicting, in one sentence what he has said in another, unless his language be incapable of any other meaning. For the same reason, a law, (which is but the expression of men’s intentions,) should not be held to contradict, in one sentence, what it has said in another, except the terms be perfectly clear and positive.

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The practice of stating exceptions in this formal and emphatic manner, shows also that legislators have usually, perhaps unconsciously, recognized, and virtually admitted, the soundness of the rule of interpretation, that requires an exception to be stated with at least as much clearness as the law to which it is an exception.

This practice of stating exceptions in a clear and formal manner, is common even where no violation of justice is involved in the exception; and where an exception therefore involves less violation of reason and probability.

This rule of interpretation, in regard to exceptions, corresponds with what is common and habitual, if not universal, in common life, and in ordinary conversation. If, for instance, a man make an exception to a general remark, he is naturally careful to express the exception with peculiar distinctness; thus tacitly recognizing the right of the other party not to notice the exception, and the probability that he will not notice it, unless it be stated with perfect distinctness.

Finally. Although an exception is not, in law, a contradiction, it nevertheless partakes so strongly of the nature of a contradiction—especially where there is no legitimate or rightful reason for it—that it is plainly absurd to admit such an exception, except upon substantially the same terms that we admit a contradiction, viz., irresistible clearness of expression.

The question now is, whether there is, in the constitution, any compliance with these principles, in making exceptions in favor of slavery? Manifestly there is none. There is not even an approach to such a compliance. There are no words of exception; no words of proviso; no words necessarily implying the existence or sanction of anything in conflict with the general principles of the instrument.

Yet the argument for slavery, (I mean that founded on the representative clause,) makes two exceptions—not one merely, but two—and both of the most flagitious and odious character—without the constitution’s having used any words of proviso or exception; without its having devoted any separate sentence to the exception; and without its having used any words which, even if used in a separate sentence, and also preceded by a “Provided, nevertheless,” would have necessarily implied any such exceptions as are claimed. The exceptions are claimed as having been established merely incidentally and casually, in describing the [198] manner of counting the people for purposes of representation and taxation; when, what is worse, the words used, if not the most common and proper that could have been used, are certainly both common and proper for describing the people, where no exception to “the general system of the laws” established by the constitution is intended.

It is by this process, and this alone, that the argument for slavery makes two exceptions to the constitution; and both, as has already been said, of the most flagitious and odious character.

One of these exceptions is an exception of principle, substituting injustice and slavery, for “justice and liberty.”

The other is an exception of persons; excepting a part of “the people of the United States” from the rights and benefits, which the instrument professes to secure to the whole; and exposing them to wrongs, from which the people generally are exempt.

An exception of principle would be less odious, if the injustice were of a kind that bore equally on all, or applied equally to all. But these two exceptions involve not only injustice in principle, but partiality in its operation. This double exception is doubly odious, and doubly inadmissible.

Another insuperable objection to the allowance of these exceptions, is, that they are indefinite—especially the latter one. The persons who may be made slaves are not designated. The persons allowed to be made slaves being left in uncertainty, the exception must fail for uncertainty, if for no other reason. We cannot, for the reasons given under the preceding rule, go out of the instrument to find the persons, because it is better that the exception should fail for its uncertainty, than that resort should be had to exterior evidence for the purpose of subjecting men to slavery.

NINTH RULE.

A ninth rule of interpretation is, to be guided, in doubtful cases, by the preamble.

The authority of the preamble, as a guide to the meaning of an instrument, where the language is ambiguous, is established. In fact, the whole object of the preamble is to indicate the objects had in view in the enacting clauses; and of necessity those objects will indicate the construction to be given to the words used in those clauses. Any other supposition would either make the preamble worthless, or, worse than that, deceitful.

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If we are guided by the preamble in fixing the meaning of those clauses that have been claimed for slavery, it is plain that no sanction or recognition of slavery will be found in them; for the preamble declares the objects of the constitution to be, among other things, “justice” and “liberty.”*

TENTH RULE.

A tenth rule of interpretation is, that one part of an instrument must not be allowed to contradict another, unless the language be so explicit as to make the contradiction inevitable.

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Now the constitution would be full of contradictions, if it tolerated slavery, unless it be shown that the constitution itself has established an exception to all its general provisions, limiting their operation and benefits to persons not slaves. Such an exception or limitation would not, legally speaking, be a contradiction. But I take it for granted that it has already been shown that no such exception can be made out from its words. If no such exception be made out from its words, such a construction must, if possible, be given to each clause of the instrument, as will not amount to a contradiction of any other clause. There is no difficulty in making such a construction; but when made it will exclude slavery.

ELEVENTH RULE.

An eleventh rule is one laid down by the supreme court of the United States, as follows:

“An act of congress” (and the rule is equally applicable to the constitution) “ought never to be construed to violate the law of nations, if any other possible construction remains.”*

This rule is specially applicable to the clause relative to “the importation of persons.” If that clause were construed to sanction the kidnapping of the people of foreign nations, and their importation into this country as slaves, it would be a flagrant violation of that law.

TWELFTH RULE.

A twelfth rule, universally applicable to questions both of fact and law, and sufficient, of itself alone, to decide, against slavery, every possible question that can be raised as to the meaning of the constitution, is this, “that all reasonable doubts must be decided in favor of liberty.”†

All the foregoing rules, it will be observed, are little other than varied and partial expressions of the rule so accurately, tersely, comprehensively, and forcibly expressed by the supreme court of the United States, viz.:

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“Where rights are infringed, where fundamental principles are overthrown, where the general system of the laws is departed from, the legislative intention must be expressed with irresistible clearness, to induce a court of justice to suppose a design to effect such objects.”

THIRTEENTH RULE.

A thirteenth rule, and one of great importance, is, that instruments must be so construed as to give no shelter or effect to fraud.

This rule is especially applicable for deciding what meaning we are to give to the word free in the constitution; for if a sense correlative with slavery be given to that word, it will be clearly the result of fraud.

We have abundant evidence that this fraud was intended by some of the framers of the constitution. They knew that an instrument legalizing slavery could not gain the assent of the north. They therefore agreed upon an instrument honest in its terms, with the intent of misinterpreting it after it should be adopted.

The fraud of the framers, however, does not, of itself, implicate the people. But when any portion of the people adopt this fraud in practice, they become implicated in it, equally with its authors. And any one who claims that an ambiguous word shall bear a sense inappropriate to the subject matter of the instrument, contrary to the technical and common meaning of the word, inconsistent with any intentions that all the parties could reasonably be presumed to agree to, inconsistent with natural right, inconsistent with the preamble, and the declared purpose of the instrument, inconsistent with “the general system of the laws” established by the instrument; any one who claims such an interpretation, becomes a participator in the fraud. It is as much fraudulent, in law, for the people of the present day to claim such a construction of the word free, as it was for those who lived at the time the instrument was adopted.

Vattel has laid down two very correct principles to be observed as preventives of fraud. They are these:

1. That it is not permitted to interpret what has no need of interpretation.

2. That if a party have not spoken plainly, when he ought to have done so, that which he has sufficiently declared, shall be taken for true against him.

Vattel’s remarks in support of, and in connection with, these principles, are so forcible and appropriate that they will be given [202] somewhat at length. If he had had in his mind this very fraud which the slaveholders and their accomplices intended to perpetrate by means of the word free in the constitution, he could hardly have said anything better fitting the case.

He says, “That fraud seeks to take advantage even of the imperfection of language; that men designedly throw obscurity and ambiguity into their treaties, to obtain a pretence for eluding them upon occasion. It is then necessary to establish rules founded on reason, and authorized by the law of nature, capable of frustrating the attempts of a contracting power void of good faith. Let us begin with those that tend particularly to this end; with those maxims of justice and equity destined to repress fraud and prevent the effect of its artifices.

“The first general maxim of interpretation is, that it is not permitted to interpret what has no need of interpretation.* When an act is conceived in clear and precise terms, when the sense is manifest and leads to nothing absurd, there can be no reason to refuse the sense which this treaty naturally presents. To go elsewhere in search of conjectures in order to restrain or extinguish it, is to endeavor to elude it. If this dangerous method be once admitted, there will be no act which it will not render useless. Let the brightest light shine on all the parts of the piece, let it be expressed in terms the most clear and determinate; all this shall be of no use, if it be allowed to search for foreign reasons in order to maintain what cannot be found in the sense it naturally presents.

“The cavillers who dispute the sense of a clear and determinate article, are accustomed to draw their vain subterfuges from the pretended intention and views of the author of that article. It would often be very dangerous to enter with them into the discussion of these supposed views, that are not pointed out in the piece itself. This rule is more proper to repel them, and which cuts off all chicanery; if he who can and ought to have explained himself clearly and plainly, has not done it, it is the worse for him; he cannot be allowed to introduce subsequent restrictions which he has [203] not expressed. This is the maxim of the Roman law; Pactionem obscuram iis nocere, in quorum fuit potestate legem apertius conscribere. (The harm of an obscure compact shall fall upon those in whose power it was to write the rule plaiply.) The equity of this rule is extremely visible, and its necessity is not less evident. There can be no secure conventions, no firm and solid concession, if these may be rendered vain by subsequent limitations that ought to have been mentioned in the piece, if they were included in the intentions of the contracting powers.”—Vattel, b. 2, ch. 17, secs. 262, 263, 264.

“On every occasion when a person has, and ought to have shown his intention, we take for true against him what he has sufficiently declared. This is an incontestible principle applied to treaties; for if they are not a vain play of words, the contracting parties ought to express themselves with truth, and according to their real intentions. If the intention sufficiently declared, was not taken for the true intention of him who speaks and binds himself, it would be of no use to contract and form treaties.”—Same, sec. 266.

“Is it necessary, in an enlightened age, to say that mental reservations cannot be admitted in treaties? This is manifest, since by nature even of the treaty, the parties ought to declare the manner in which they would be reciprocally understood. There is scarcely a person at present, who would not be ashamed of building upon a mental reservation. What can be the use of such an artifice, if it was not to lull to sleep some other person under the vain appearance of a contract? It is, then, a real piece of knavery.”—Same, sec. 275.

“There is not perhaps any language that has not also words which signify two or many different things, or phrases susceptible of more than one sense. Thence arise mistakes in discourse. The contracting powers ought carefully to avoid them. To employ them with design, in order to elude engagements, is a real perfidy, since the faith of treaties obliges the contracting parties to express their intentions clearly. But if the equivocal term has found admission into a public treaty, the interpretation is to make the uncertainty produced by it disappear.

“This is the rule that ought to direct the interpretation in this case. We ought always to give to expressions the sense most suitable to the subject, or to the matter to which they relate. For we endeavor by a true interpretation, to discover the thoughts of those who speak, or of the contracting powers in a treaty. Now it ought to be presumed that he who has employed a word capable of many different significations, has taken it in that which agrees with the subject. In proportion as he employs himself on the matter in question, the terms proper to express his thoughts present themselves to his mind; this equivocal word could then only offer itself in the sense proper to express the thought of him who makes use of it, that is, in the sense agreeable to the subject. It [204] would be to no purpose to object, that we sometimes have recourse to equivocal expressions, with a view of exhibiting something very different from what one has truly in the mind, and that then the sense which agrees with the subject is not that which answers to the intention of the man who speaks. We have already observed, that whenever a man can and ought to have made known his intention, we may take for true against him what he has sufficiently declared. And as good faith ought to preside in conventions, they are always interpreted on the supposition that it actually did preside in them.”—Same, sec., 279, 80.

“The reason of the law, or the treaty, that is, the motive which led to the making of it, and the view there proposed, is one of the most certain means of establishing the true sense, and great attention ought to be paid to it whenever it is required to explain an obscure, equivocal and undetermined point, either of a law, or of a treaty, or to make an application of them to a particular case. As soon as we certainly know the reason which alone has determined the will of him who speaks, we ought to interpret his words, and to apply them in a manner suitable to that reason alone. Otherwise he will be made to speak and act contrary to his intention, and in a manner opposite to his views.

But we ought to be very certain that we know the true and only reason of the law, the promise, or the treaty. It is not here permitted to deliver ourselves up to vague and uncertain conjectures, and to suppose reason and views where there are none certainly known. If the piece in question is obscure in itself; if in order to know the sense, there are no other means left but to search for the reason of the act, and the views of the author; we must then have recourse to conjecture, and in the want of certainty, receive for true, what is most probable. But it is a dangerous abuse to go, without necessity, in search of reasons and uncertain views, in order to turn, restrain, or destroy, the sense of a piece that is clear enough in itself, and that presents nothing absurd; this is to offend against this incontestible maxim, that it is not permitted to interpret what has no need of interpretation. Much less is it permitted, when the author of a piece has himself there made known his reasons and motives, to attribute to him some secret reason, as the foundation to interpret the piece contrary to the natural sense of the terms. Though he had really the view attributed to him, if he has concealed it, and made known others, the interpretation can only be founded upon these, and not upon the views which the author has not expressed; we take for true against him what he has sufficiently expressed.”—Same, sec. 287.

FOURTEENTH RULE.

In addition to the foregoing particular rules of interpretation, this general and sweeping one may be given, to wit, that we are [205] never unnecessarily to impute to an instrument any intention whatever which it would be unnatural for either reasonable or honest men to entertain. Such intention can be admitted only when the language will admit of no other construction.

Law is “a rule of conduct.” The very idea of law, therefore, necessarily implies the ideas of reason and right. Consequently, every instrument, and every man, or body of men, that profess to establish a law, impliedly assert that the law they would establish is reasonable and right. The law, therefore, must, if possible, be construed consistently with that implied assertion.

RULES CITED FOR SLAVERY.

The rules already given (unless perhaps the fourth) take precedence of all the rules that can be offered on the side of slavery; and, taking that precedence, they decide the question without reference to any others.

It may, however, be but justice to the advocates of slavery, to state the rules relied on by them. The most important are the following:

FIRST RULE CITED FOR SLAVERY.

One rule is, that the most common and obvious sense or a word is to be preferred.

This rule, so far as it will apply to the word free in the constitution, is little or nothing more than a repetition of the rule before given, (under rule fourth,) in favor of the technical meaning of words. It avails nothing for slavery; and for the following reasons:

1. In determining, in a particular case, what is “the most common and obvious meaning” of a word, reference must be had not alone to the sense in which the word is most frequently used in the community, without regard to the context, or the subject to which it is applied; but only to its most common meaning, when used in a similar connection, for similar purposes, and with reference to the same or similar subjects. For example. In a law relative to vessels navigating Massachusetts Bay, or Chesapeake Bay, we must not understand the word bay in the same sense as when we speak of a bay horse, a bay tree, or of a man standing at bay. Nor in a law regulating the rate of discount, or the days of grace, on checks, notes, drafts and orders, must we understand [206] the word check in the same sense as when we speak of a man’s being checked in his career; nor the word note in the same sense as when we speak of notes in music, or of a man of note; nor the word draft in the same sense as when we speak of a ship’s draft of water, or of a sketch, plan, or drawing on paper; nor the word order in the same sense as when we speak of a military order, or orders in architecture, or of different orders of men, as the order of dukes, the order of knights, the order of monks, the order of nuns, &c., &c.

All can see that the meanings of the same words are so different when applied to different subjects, and used in different connections, that written laws would be nothing but jargon, and this rule utterly ridiculous, unless, in determining the most common and obvious meaning of a word, in any particular case, reference be had to its most common use in similar connections, and when applied to similar subjects, and with similar objects in view.

To ascertain, then, the most “common and obvious meaning” of the word “free,” in such a connection as that in which it stands in the constitution, we must first give it a meaning that appropriately describes a class, which the constitution certainly presumes will exist under the constitution. Secondly, a meaning which the whole “people of the United States,” (slaves and all,) who are parties to the constitution, may reasonably be presumed to have voluntarily agreed that it should have. Thirdly, we must give it a meaning that will make the clause in which it stands consistent with the intentions which “the people,” in the preamble, declare they have in view in ordaining the constitution, viz., “to establish justice,” and “secure the blessings of liberty to themselves, (the whole people of the United States,) and their posterity.” Fourthly, we must give it a meaning harmonizing with, instead of contradicting, or creating an exception to, all the general principles and provisions of the instrument. Fifthly, such a meaning must be given to it as will make the words, “all other persons,” describe persons who are proper subjects of “representation” and of taxation as persons. No one can deny that, at the time the constitution was adopted, the most “common and obvious meaning” of the word “free,” when used by the whole people of a state or nation, in political instruments of a similar character to the constitution, and in connection with such designs, principles, and provisions as are expressed and contained in the constitution, was such as has been claimed for it in this argument, viz., a meaning describing citizens, [207] or persons possessed of some political franchise, as distinguished from aliens, or persons not possessed of the same franchise. Nobody can deny this. On the contrary, everybody who argues that it describes free persons, as distinguished from slaves, admits, and is obliged to admit, that this meaning is either in conflict with, or an exception to, the professed intent, and all the general principles and provisions of the instrument.

If the constitution had purported to have been instituted by a part of the people, instead of the whole; and for purposes of injustice and slavery, instead of “justice and liberty;” and if “the general system of the laws” authorized by the constitution, had corresponded with that intention, there would then have been very good reason for saying that “the most common and obvious meaning” of the word “free,” in such a connection, was to describe free persons as distinguished from slaves. But as the constitution is, in its terms, its professed intent, and its general principles and provisions, directly the opposite of all this; and as the word “free” has a “common and obvious meaning,” that accords with these terms, intent, principles, and provisions, its most “common and obvious meaning,” in such a connection, is just as clearly opposite to what it would have been in the other connection, as its most common and obvious meaning, in the other connection, would be opposite to the meaning claimed for it in this. This position must either be admitted, or else it must be denied that the connection in which a word stands has anything to do with fixing its most “common and obvious meaning.”*

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Again. It has already been shown that the most common, and the nearly or quite universal meaning, given to the word free, both in this country and in England, when used in laws of a fundamental character, like the constitution, or, indeed, in any other laws, (for the purpose of designating one person, as distinguished from another living under the same laws,) was not to designate a free person, as distinguished from a slave, but to distinguish a citizen, or person possessed of some franchise, as distinguished from aliens, or persons not possessed of the same franchise. The authority of this rule, then, so far as it regards the most “common” meaning of this word in the law, is entirely in favor of the argument for freedom, instead of the argument for slavery.

2. But the rule fails to aid slavery for another reason. As has before been remarked, the word “free” is seldom or never used, even in common parlance, as the correlative of slaves, unless when applied to colored persons. A colored person, not a slave, is called a “free colored person.” But the white people of the south are never, in common parlance, designated as “free persons,” but as white persons. A slaveholder would deem it an insult to be designated as a “free person,” that is, using the word free in a sense correlative with slavery, because such a designation would naturally imply the possibility of his being a slave. It would naturally imply that he belonged to a race that was sometimes enslaved. Such an implication being derogatory to his race, would be derogatory to himself. Hence, where two races live together, the one as masters, the other as slaves, the superior race never habitually designate themselves as the “free persons,” but by the appropriate name of their race, thus avoiding the implication that they can be made slaves.

Thus we find, that the use of the word “free” was “common,” [209] in the law, to describe those who were citizens, but it was not “common,” either in the law, or in common parlance, for describing the white people of the south, as distinguished from their slaves. The rule, then, that requires the most common and obvious meaning of the word to be preferred, wholly fails to give to the word free, as used in the constitution, a meaning correlative with slaves.

3. But in point of fact, the rule that requires us to prefer the most “common and obvious meaning,” is of a wholly subordinate and unauthoritative character, when compared with the rules before laid down, except so far as it is necessary to be observed in order to preserve a reasonable connection and congruity of ideas, and prevent the laws from degenerating into nonsense. Further than this, it has no authority to give an unjust meaning to a word that admits of a just one, or to give to a word a meaning, inconsistent with the preamble, the general principles, or any other provisions, of an instrument. In short, all the rules previously laid down, (unless, perhaps, the fourth, which is nearly or quite synonymous with this,) take precedence of this, and this is of no consequence, in comparison with them, (except as before mentioned,) when they come in conflict. In this case, however, of the word free, there is no conflict. And the same may be said of the words, “held to service or labor,” and “the importation of persons.” Neither of these two latter forms of expression had probably ever been used in the country, either in law or in common parlance, to designate slaves or slavery. Certainly there had been no common use of them for that purpose; and such, therefore, cannot be said to be either their common or their obvious meaning. But even if such were their common and obvious meaning, it would not avail against the rule in favor of liberty or right, or any of the other rules before laid down.

That the other rules take precedence of this, is proved by the fact, that otherwise those rules could never have had an existence. If this rule took precedence of those, it would invariably settle the question; no other rule of interpretation would ever be required; because, it is not a supposable case, that there can ever be two meanings, without one being more common or obvious than the other. Consequently, there could never be any opportunity to apply the other rules, and they, therefore, could never have had an existence.

If this rule took precedence of the others, all legal interpretation [210] would be resolved into the simple matter of determining which was the most common and obvious meaning of words in particular connections. All questions of written law would thus be resolved into a single question of fact; and that question of fact would have to be decided by a judge, instead of a jury. And a very slight preponderance of evidence, as to the senses in which words are most commonly understood, would often have to determine the question. The judge, too, would have to be presumed omniscient as to the most common and obvious meaning of words, as used by the people at large, each one of whom is known to often use words in different senses, and with different shades of meaning, from all others. And the slightest preponderance of evidence on this point, that should appear to the judge’s mind alone, would be sufficient to overrule all those palpable principles of liberty, justice, right, and reason, which the people at large, (who cannot reasonably be presumed to be very critical or learned plilologists,) have in view in establishing government and laws. In short, courts, acting on such a principle, would in practice be little or nothing more than philological, instead of legal, tribunals.

Government and laws being established by the people at large, not as philologists, but as plain men, seeking only the preservation of their rights, the words they use must be made to square with that end, if possible, instead of their rights being sacrificed to nice philological criticisms, to which the people are strangers. Not that, in interpreting written laws, the plain and universal principles of philology are to be violated, for the sake of making the laws conform to justice; for that would be equivalent to abolishing all written laws, and abolishing the use of words as a means of describing the laws. But the principle is, that great latitude must be allowed in matters of philology, in accommodation of the various senses in which different men use and understand the same word in the same circumstances; while a severe and rigid adherence is required to principles of natural right, which are far more certain in their nature, and in regard to which all men are presumed to be agreed, and which all are presumed to have in view in the establishment of government and laws. It is much more reasonable to suppose—because the fact itself is much more common—that men differ as to the meaning of words, than that they differ as to the principles which they try to express by their words.

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No two men, in drawing up the same law, would do it in the same words, owing to their different tastes, capacities, and habits, in the use of language. And yet a law, when written, must, in theory, mean the same to all minds. This necessity of having the law mean the same to all minds, imposes upon courts the necessity of disregarding men’s different tastes and habits in the matter of words, and of construing the words of all laws so as to make them conform as nearly as possible to some general principle, which all men are presumed to have in view, and in regard to which all are presumed to be agreed. And that general principle is justice.

The result, then, is, that justice and men’s rights—the preservation of which is the great object of all the government and laws to which it is a supposable case that the whole people can have agreed—must not be staked on the decision of such a nice, frivolous, and uncertain point, as is the one, whether this or that meaning of a word is the more common one in the community, or the more obvious one to the generality of minds, in particular cases, when, in fact, either meaning is grammatically correct, and appropriate to the subject. Instead of such folly and suicide, any meaning, that is consonant to reason in the connection in which the word stands, and that is consistent with justice, and is known and received by society, though less common or obvious than some others, must be adopted, rather than justice be sacrificed, and the whole object of the people in establishing the government be defeated.

So great is the disagreement, even among scholars and lexicographers, as to the meaning of words, that it would be plainly impossible for the most acute scholars to agree upon a code of written laws, having in view the preservation of their natural rights, unless they should also expressly or impliedly agree, that, out of regard to the different senses in which the different individuals of their number might have understood the language in which the laws were written, the courts, in construing those laws, should be allowed very great latitude whenever it should be necessary, for the purpose of finding a sense consistent with justice. And if this latitude would be required in construing an instrument agreed to only by scholars and critics, how much more is it required in construing an instrument agreed to by mankind at large.

This rule, then, that prefers the most common and obvious [212] meaning of words, is a very insignificant and unimportant one, compared with the previous ones; and it can legally be resorted to, only where the prior ones, (unless, perhaps, the fourth,) are either inapplicable to, or have failed to determine the question; as, for instance, in cases where there is involved no question of right or wrong, or of consistency or inconsistency with the preamble, the general principles, or other particular provisions of an instrument; where nothing more than questions of expediency or convenience are concerned. And even a clear case of serious inconvenience only, is sufficient to set aside the rule, unless the language be very explicit.*

This rule, in favor of the most common and obvious meaning of words, has never, so far as I am aware, been laid down as decisive, by the Supreme Court of the United States, in any cases where any question of right, consistency, or of great and manifest convenience, was involved. I think it has generally been cited as authoritative, in constitutional questions, only where the doubt was, whether a particular constitutional power had been vested in the general government, or reserved to the states. In such cases, where the power was admitted to be in one government or the other, and where no question of right, of consistency with other parts of the instrument, or of manifest convenience, was involved, the court, very properly assuming that the power might be as rightfully vested in one government as in the other, at the discretion of the people, have held that the doubt should be determined by taking the language of the constitution to have been used in its most common and obvious sense. But such a decision of a mere question as to which of two governments is the depository of a particular power, which is conceded to be vested [213] in one or the other, has nothing to do with cases where a question of right or wrong is involved, or of consistency with other parts of the instrument, or even where a serious and clear question of inconvenience is concerned.

If, however, that court have, at any time, laid greater stress upon the rule, they are not sustained, either by the reason of things, or by the practice of other courts; nor are they consistent or uniform in the observance of it themselves.*

SECOND RULE CITED FOR SLAVERY.

A second rule of interpretation, relied upon by the advocates of slavery, is that where laws are ambiguous, resort may be had to exterior circumstances, history, &c., to discover the probable intention of the law-givers.

But this is not an universal rule, as has before been shown, (under rule seventh,) and has no application to a question that can be settled by the rules already laid down, applicable to the words themselves. It is evident that we cannot go out of the words of a law, to find its meaning, until all the rules applicable to its words have been exhausted. To go out of a law to find the meaning of one of its words, when a meaning, and a good meaning, can be found in the law, is assuming gratuitously that the law is incomplete; that it has been but partially written; that, in reality, it is not a law, but only a part of a law; and that we have a right to make any additions to it that we please.

Again. When we go out of the words of the law, we necessarily go into the regions of conjecture. We therefore necessarily [214] sacrifice certainty, which is one of the vital principles of the law. This cannot be done for any bad purpose. It can only be done to save rights, (not to accomplish wrongs,) depending on the efficacy of the law.

To go out of a law to find a bad meaning, when a good meaning can be found in the law, is also to sacrifice right, the other vital principle of law. So that both certainty and right would be sacrificed by going out of the constitution to find the meaning, or application, of the word free; since an appropriate and good meaning is found in the instrument itself.

Further. It has before been shown, (under rule seventh,) that a word is not, legally speaking, “ambiguous,” when the only question is between a just and an unjust meaning; because the rule, which requires the right to be preferred to the wrong, being uniform and imperative, makes the meaning always and absolutely certain; and thus prevents the ambiguity that might otherwise have existed.

It is true that, in a certain sense, such a word may be called “ambiguous,” but not in a legal sense. Almost every word that is used in writing laws, might be called ambiguous, if we were allowed to lose sight of the fact, or unnecessarily abandon the presumption, that the law is intended for purposes of justice and liberty.

But this point has been so fully discussed in the former part of this chapter, (under rule seventh,) that it need not now be discussed at length.

It is not to be forgotten, however, that even if we go out of the constitution to find the meaning of the word free, and resort to all the historical testimony that is of a nature to be admissible at all, we shall still be obliged to put the same construction upon it as though we take the meaning presented by the constitution itself. The use of the word in all laws of a similar character, and even of a dissimilar character, to the constitution, fixes this meaning. The principles of liberty, prevailing in the country generally, as evidenced by the declaration of independence, and the several State constitutions, and constituting at least the paramount, the preponderating, law, in every State of the Union, require the same meaning to be given to the word.

The fact, that this prevailing principle of liberty, or this general principle of law, was, at that time, violated by a small portion, (perhaps one fortieth,) of the community, (the slaveholders,) furnishes [215] no legal evidence against this construction; because the constitution, like every other law, presumes everybody willing to do justice, unless the contrary explicitly appear in the instrument itself. This is a reasonable presumption, both in fact and in law, as has before been suggested, (under rule sixth.) What court ever laid down the rule that an instrument was “ambiguous,” or that an unjust meaning must be given to it, because its just meaning was more just than the parties, or some few of the parties, could reasonably be presumed to have intended the instrument should be? If this idea were admissible, as a rule of interpretation, all our most just and equitable laws are liable to be held ambiguous, and to have an unjust construction put upon them, (if their words will admit of it,) on the ground of their present construction being more just than some portion of the community, for which they were made, could be presumed to desire them to be. The slaveholders, then, must be presumed to have been willing to do justice to their slaves, if the language of the constitution implies it, whether they were really willing or not. No unwillingness to do justice can be presumed on the part of the slaveholders, any more than on the part of any other of the parties to the constitution, as an argument against an interpretation consistent with liberty.

Again. The real or presumed intentions of that particular portion of the “people,” who were slaveholders, are of no more legal consequence towards settling ambiguities in the constitution, than are the real or presumed intentions of the same number of slaves; for both slaves and slaveholders, as has been shown, (under rule sixth,) were, in law, equally parties to the constitution. Now, there were probably five or ten times as many slaves as slaveholders. Their intentions, then, which can be presumed to have been only for liberty, overbalance all the intentions of the slaveholders. The intentions of all the non-slaveholders, both north and south, must also be thrown into the same scale with the intentions of the slaves—the scale of liberty.

But further. The intentions of all parties, slaves, slaveholders, and non-slaveholders, throughout the country, must be presumed to have been precisely alike, because, in theory, they all agreed to the same instrument. There were, then, thirty, forty, or fifty, who must be presumed to have intended liberty, where there was but one that intended slavery. If, then, the intentions, principles, and interests, of overwhelming majorities of “the people,” who “ordained and established the constitution,” are to have any [216] weight in settling ambiguities in it, the decision must be in favor of liberty.*

But it will be said that, in opposition to this current of testimony, furnished by the laws and known principles of the nation at large, we have direct historical evidence of the intentions of particular individuals, as expressed by themselves at or about the time.

One answer to this argument is, that we have no legal evidence whatever of any such intentions having been expressed by a single individual in the whole nation.

Another answer is, that we have no authentic historical evidence of such intentions having been expressed by so many as five hundred individuals. If there be such evidence, where is it? and who were the individuals? Probably not even one hundred such can be named. And yet this is all the evidence that is to be offset against the intentions of the whole “people of the United States,” as expressed in the constitution itself, and in the general current of their then existing laws.

It is the constant effort of the advocates of slavery, to make the constitutionality of slavery a historical question, instead of a legal one. In pursuance of this design, they are continually citing the opinions, or intentions, of Mr. A, Mr. B, and Mr. C, as handed down to us by some history or other; as if the opinions and intentions of these men were to be taken as the opinions and intentions of the whole people of the United States; and as if the irresponsible statements of historians were to be substituted for the constitution. If the people of this country have ever declared that these fugitive and irresponsible histories of the intentions and sayings of single individuals here and there, shall constitute the constitutional law of the country, be it so; but let us be consistent, burn [217] the constitution, and depend entirely upon history. It is nothing but folly, and fraud, and perjury, to pretend to maintain, and swear to support, the constitution, and at the same time get our constitutional law from these irresponsible sources.

If every man in the country, at the time the constitution was adopted, had expressed the intention to legalize slavery, and that fact were historically well authenticated, it would be of no legal importance whatever—and why? Simply because such external expressions would be no part of the instrument itself.

Suppose a man sign a note for the payment of money, but at the time of signing it declare that it is not his intention to pay it, that he does not sign the note with such an intention, and that he never will pay it. Do all these declarations alter the legal character of the note itself, or his legal obligation to pay? Not at all—and why? Because these declarations are no part of that particular promise which he has expressed by signing the note. So if every man, woman, and child in the Union, at the time of adopting the constitution, had declared that it was their intention to sanction slavery, such declarations would all have been but idle wind—and why? Because they are no part of that particular instrument, which they have said shall be the supreme law of the land. If they wish to legalize slavery, they must say so in the constitution, instead of saying so out of it. By adopting the constitution, they say just what, and only what, the constitution itself expresses.

THIRD RULE CITED FOR SLAVERY.

A third rule of interpretation, resorted to for the support of slavery, is the maxim that “Usage is the best interpreter of laws.”

If by this rule be meant only that the meaning to be applied to a word in a particular case ought to be the same that has usually been applied to it in other cases of a similar nature, we can, of course, have no objection to the application of the rule to the word “free;” for usage, as has already been shown, will fix upon it a meaning other than as the correlative of slaves.

Or if by this rule be meant that all laws must be interpreted according to those rules of interpretation which usage has established, that is all that the advocates of liberty can desire, in the interpretation of the constitution.

But if the rule requires that after a particular law has once, [218] twice, or any number of times, been adjudicated upon, it must always be construed as it always has been, the rule is ridiculous; it makes the interpretation given to a law by the courts superior to the law itself; because the law had a meaning of its own before any “usage” had obtained under it, or any judicial construction had been given to it.

It is the original meaning of the constitution itself that we are now seeking for; the meaning which the courts were bound to put upon it from the beginning; not the meaning they actually have put upon it. We wish to determine whether the meaning which they have hitherto put upon it be correct. To settle this point, we must go back to the rules applicable to the instrument itself, before any judicial constructions had been given to it. All constructions put upon it by the courts or the government, since the instrument was adopted, come too late to be of any avail in settling the meaning the instrument had at the time it was adopted—certainly unless it be impossible to settle its original meaning by any rules applicable to the instrument itself.

We charge the courts with having misinterpreted the instrument from the beginning; with having violated the rules that were applicable to the instrument before any practice or usage had obtained under it. This charge is not to be answered by saying that the courts have interpreted it as they have, and that that interpretation is now binding, on the ground of usage, whether it were originally right or wrong. The constitution itself is the same now that it was the moment it was adopted. It cannot have been altered by all the false interpretations that may have been put upon it.

If this rule were to be applied in this manner to the constitution, it would deserve to be regarded as a mere device of the courts to maintain their own reputations for infallibility, and uphold the usurpations of the government on which they are dependent, rather than a means of ascertaining the real character of the constitution.*

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But perhaps it will be said, that by usage is meant the practice of the people. It would be a sufficient answer to this ground to say, that usage, against law and against right, can neither abolish nor change the law, in any case. And usage is worth nothing in the exposition of a law, except where the law is so uncertain that its meaning cannot be settled by the rules applicable to its words. Furthermore, it is only ancient usage that is, in any case, of any considerable importance.

This whole matter of usage is well disposed of in the note.*

FOURTH RULE CITED FOR SLAVERY.

A fourth rule of interpretation, relied on for the support of slavery, is that the words of a law must be construed to subserve the intentions of the legislature. So also the words of a contract [220] must be construed to subserve the intentions of the parties. And the constitution must be construed to subserve the intentions of “the people of the United States.”

Those who quote this rule in favor of slavery, assume that it was the intention of “the people of the United States” to sanction slavery; and then labor to construe all its words so as to make them conform to that assumption.

But the rule does not allow of any such assumption. It does not supersede, or at all infringe, the rule that “the intention of the legislature is to be collected from the words they have used to convey it.”* This last rule is obviously indispensable to make written laws of any value; and it is one which the very existence of written laws proves to be inflexible; for if the intentions could be assumed independently of the words, the words would be of no use, and the laws of course would not be written.

Nor does this rule, that words are to be construed so as to subserve intentions, supersede, or at all infringe, the rule, that the intentions of the legislature are to be taken to be just what their words express, whether such be really their intentions or not.†

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The two rules, that “words must be construed to subserve intentions,” and that “intentions must be collected from the words,” may, at first view, appear to conflict with each other. There is, however, no conflict between them. The rule, that words must be construed to subserve intentions, applies only to ambiguous words; to those words which, on account of their ambiguity, need to be construed;* and it assumes that the intentions of the law have been made known by other words, that are not ambiguous. The whole meaning of the rule, then, is, that the intentions of ambiguous words must be construed in conformity with the intentions expressed in those words that are explicit.†

Where no intentions are explicitly revealed, the court will presume the best intentions of which the words, taken as a whole, are capable; agreeably to the rule cited from the Supreme Court of Massachusetts, viz., “It is always to be presumed that the legislature intend the most beneficial construction of their acts, when the design of them is not apparent.”—4 Mass., 537.

This rule, then, that the ambiguous words of an instrument must be construed to subserve the intentions expressed by other words, that are explicit, requires that the ambiguous words in the constitution (if there are any such) be construed in favor of liberty, instead of slavery.

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Thus have been stated and examined all the rules of interpretation, (with the exception of one, to be named hereafter,) that occur to me as being of any moment in this discussion. And I think the soundness and permanent authority of those that make for liberty and justice, if indeed they do not all make for liberty and justice, have been shown.

But of the reason and authority of all these rules, the reader must of necessity judge for himself; for their whole authority rests on their reason, and on usage, and not on any statute or constitution enacting them.* And the way for the reader to judge of their soundness, is, for him to judge whether they are the rules by which he wishes his own contracts, and the laws on which he himself relies for protection, to be construed. Whether, in fact, honest contracts, honest laws, and honest constitutions, can be either agreed upon, or sustained, by mankind, if they are to be construed on any other principles than those contained in these rules.

If he shall decide these questions in favor of the rules, he may then properly consider further, that these were the received rules of legal interpretation at the time the constitution was adopted, and had been for centuries. That they had doubtless been the received rules of interpretation from the time that laws and contracts were first formed among men; inasmuch as they are such as alone can secure men’s rights under their honest contracts, and under honest laws, and inasmuch also as they are such as unprofessional and unlearned men naturally act upon, under the dictates of common sense, and common honesty.

If it now be still objected that the people, or any portion of them, did not intend what the constitution, interpreted by the preceding rules, expresses, the answer is this.

We must admit that the constitution, of itself, independently of the actual intentions of the people, expresses some certain, fixed, definite, and legal intentions; else the people themselves would express no intentions by agreeing to it. The instrument would, in fact, contain nothing that the people could agree to. Agreeing to an instrument that had no meaning of its own, would only be agreeing to nothing.

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The constitution, then, must be admitted to have a meaning of its own, independently of the actual intentions of the people. And if it be admitted that the constitution has a meaning of its own, the question arises, What is that meaning? And the only answer that can be given is, that it can be no other than the meaning which its words, interpreted by sound legal rules of interpretation, express. That, and that alone, is the meaning of the constitution. And whether the people who adopted the constitution really meant the same things which the constitution means, is a matter which they were bound to settle, each individual with himself, before he agreed to the instrument; and it is therefore one with which we have now nothing to do. We can only take it for granted that the people intended what the constitution expresses, because, by adopting the instrument as their own, they declared that their intentions corresponded with those of the instrument. The abstract intentions, or meaning, of the instrument itself, then, is all that we have now any occasion to ascertain. And this we have endeavored to do, by the application of the foregoing rules of interpretation.

It is perfectly idle, fraudulent, and futile, to say that the people did not agree to the instrument in the sense which these rules fix upon it; for if they have not agreed to it in that sense, they have not agreed to it at all. The instrument itself, as a legal instrument, has no other sense, in which the people could agree to it. And if the people have not adopted it in that sense, they have not yet adopted the constitution; and it is not now, and never has been, the law of the land.

There would be just as much reason in saying that a man who signs a note for the payment of five hundred dollars, does not sign it in the legal sense of the note, but only in the sense that he will not pay, instead of the sense that he will pay, so much money, as there is in saying that the people did not agree to the constitution in its legal sense, but only in some other sense, which slaveholders, pirates, and thieves might afterwards choose to put upon it.

Besides, does any one deny that all the rest of the constitution, except what is claimed for slavery, was agreed to in the sense which these rules put upon it? No decent man will make such a denial. Well, then, did not the people intend that all parts of the same instrument should be construed by the same rules? Or do the advocates of slavery seriously claim that three or four millions of people, thinly scattered over thirteen states, and having no opportunity for concert, except by simply saying yea, or nay, to the [224] instrument presented to them, did, nevertheless, at the time of agreeing to the instrument, agree, also, by means of some mysterious, invisible, miraculous intercourse, that the slave clauses, as they are called, should be construed by directly opposite rules from all the rest of the instrument? Even if they did so agree, such agreement would be no part of the constitution; but if they did not, they certainly did not agree to sanction slavery. No matter what any, or all, of them said before, or after, or otherwise than by, the adoption of the instrument. What they all said by the single act of adoption, is all that had any effect in establishing the constitutional law of the country.

Certainly, the whole instrument must be construed by uniform rules of interpretation. If, then, the slave clauses, as they are called, are construed so as to sanction slavery, all the rest of the instrument must be construed to sanction all possible iniquity and injustice of which its words can be made to insinuate a sanction. More than this. “The laws passed in pursuance of the constitution,” must of course be construed by the same rules as the constitution itself. If, then, the constitution is to be construed as adversely as possible to liberty and justice, all “the laws passed in pursuance of it” must be construed in the same manner. Such are the necessary results of the arguments for slavery.

Nothing can well be more absurd than the attempt to set up the real or pretended intentions of a few individuals, in opposition to the legal meaning of the instrument the whole people have adopted, and the presumed intentions of every individual who was a party to it. Probably no two men, framers, adopters, or any others, ever had the same intentions as to the whole instrument; and probably no two ever will. If, then, one man’s actual intentions are of any avail against the legal meaning of the instrument, and against his presumed intentions, any and every other man’s actual intentions are of equal importance; and consequently, in order to sustain this theory of carrying into effect men’s actual intentions, we must make as many different constitutions out of this one instrument, as there were, are, or may be, different individuals who were, are, or may be, parties to it.

But this is not all. It is probable that, as matter of fact, four fifths, and, not unlikely, nine tenths, of all those who were legally parties to the constitution, never even read the instrument, or had any definite idea or intention at all in regard to the relation it was to bear, either to slavery, or to any other subject. Every inhabitant [225] of the country, man, woman, and child, was legally a party to the constitution, else they would not have been bound by it. Yet how few of them read it, or formed any definite idea of its character, or had any definite intentions about it. Nevertheless, they are all presumed to have read it, understood it, agreed to it, and to have intended just what the instrument legally means, as well in regard to slavery as in regard to all other matters. And this presumed intention of each individual, who had no actual intention at all, is of as much weight in law, as the actual intention of any of those individuals, whose real or pretended intentions have been so much trumpeted to the world. Indeed the former is of altogether more importance than the latter, if the latter were contrary to the legal meaning of the instrument itself.

The whole matter of the adoption of the constitution is mainly a matter of assumption and theory, rather than of actual fact. Those who voted against it, are just as much presumed to have agreed to it, as those who voted for it. And those who were not allowed to vote at all, are presumed to have agreed to it equally with the others. So that the whole matter of the assent and intention of the people, is, in reality, a thing of assumption, rather than of reality. Nevertheless, this assumption must be taken for fact, as long as the constitution is acknowledged to be law; because the constitution asserts it as a fact, that the people ordained and established it; and if that assertion be denied, the constitution itself is denied, and its authority consequently invalidated, and the government itself abolished.

Probably not one half, even, of the male adults ever so much as read the constitution, before it was adopted. Yet they are all presumed to have read it, to have understood the legal rules of interpreting it, to have understood the true meaning of the instrument, legally interpreted, and to have agreed to it in that sense, and that only. And this presumed intention of persons who never actually read the instrument, is just as good as the actual intention of those who studied it the most profoundly; and better, if the latter were erroneous.

The sailor, who started on a voyage before the constitution was framed, and did not return until after it was adopted, and knew nothing of the matter until it was all over, is, in law, as much a party to the constitution as any other person. He is presumed to have read it, to have understood its legal meaning, and to have agreed to that meaning, and that alone; and his presumed intention [226] is of as much importance as the actual intention of George Washington, who presided over the convention that framed it, and took the first presidential oath to support it. It is of altogether more consequence than the intention of Washington, if Washington intended anything different from what the instrument, legally interpreted, expresses; for, in that case, his intention would be of no legal consequence at all.

Men’s presumed intentions were all uniform, all certainly right, and all valid, because they corresponded precisely with what they said by the instrument itself; whereas their actual intentions were almost infinitely various, conflicting with each other, conflicting with what they said by the instrument, and therefore of no legal consequence or validity whatever.

It is not the intentions men actually had, but the intentions they constitutionally expressed, that make up the constitution. And the instrument must stand, as expressing the intentions of the people, (whether it express them truly or not,) until the people either alter its language, or abolish the instrument. If “the people of the United States” do not like the constitution, they must alter, or abolish, instead of asking their courts to pervert it, else the constitution itself is no law.

Finally. If we are bound to interpret the constitution by any rules whatever, it is manifest that we are bound to do it by such rules as have now been laid down. If we are not bound to interpret it by any rules whatever, we are wholly without excuse for interpreting it in a manner to legalize slavery. Nothing can justify such an interpretation but rules of too imperative a character to be evaded.*

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CHAPTER XVIII.: SERVANTS COUNTED AS UNITS.

The constitution (Art. 1, Sec. 2) requires that the popular basis of representation and taxation be made up as follows, to wit:

“By adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other persons.”

If the word free, in this clause, be used as the correlative of slaves, and the words “all other persons” mean slaves, the words “including those bound to service for a term of years” are sheer surplusage, having no legal force or effect whatever; for the persons described by them would of course have been counted with the free persons, without the provision. If the word free were used as the correlative of slaves at all, it was used as the correlative of slaves alone, and not also of servants for a term of years, nor of prisoners, nor of minors under the control of their parents, nor of persons under any other kind of restraint whatever, than the simple one of chattel slavery.*

It was, therefore, wholly needless to say that “persons bound to service for a term of years” should not be counted in the class with slaves, for nobody, who understood the word free as the correlative of slaves, would have imagined that servants for a term of years were to be included in the class with slaves. There would have been nearly or quite as much reason in saying that minors under the control of their parents, persons under guardianship, prisoners for debt, prisoners for crime, &c., should not be counted in the class with slaves, as there was in saying that servants for a term of years should not be counted in that class. In fact, the whole effect of the provision, if it have any, on the slave hypothesis, is to imply that all other persons under restraint, except [238] “those bound to service for a term of years,” shall be counted in the class with slaves; because an exception of particular persons strengthens the rule against all persons not excepted. So that, on the slave hypothesis, the provision would not only be unnecessary in favor of the persons it describes, but it would even be dangerous in its implications against persons not included in it.

But we are not allowed to consider these words even as surplusage, if any reasonable and legal effect can be given them. And under the alien hypothesis they have such an effect.

Of the “persons bound to service for a term of years” in those days, large numbers were aliens, who, but for this provision, would be counted in the three fifths class. There was, nevertheless, a sound reason why they should be distinguished from other aliens, and be counted as units, and that was, that they were bound to the country for a term of years as laborers, and could not, like other aliens, be considered either a transient, unproductive, or uncertain population. Their being bound to the country for a term of years as laborers, was, to all practical purposes, equivalent to naturalization; for there was little or no prospect that such persons would ever leave the country afterwards, or that, during their service, they would recognize the obligations of any foreign allegiance.

On the alien hypothesis, then, the words have an effect, and a reasonable one. On the slave hypothesis, they either have no effect at all, or one adverse to all persons whatsoever that are under any kind of restraint, except servants for a term of years.

CHAPTER XIX.: SLAVE REPRESENTATION.

The injustice to the North that is involved in allowing slaves, who can have no rights in the government, who can owe it no allegiance, who are necessarily its enemies, and who therefore weaken, instead of supporting it—the injustice and inequality of allowing such persons to be represented at all in competition with those who alone have rights in the government, and who alone support it, is so palpable and monstrous, as utterly to forbid any such construction being put upon language that does not necessarily mean it. The absurdity, also, of such a representation, is, if possible, equal to its injustice. We have no right—legal rules, that [239] are universally acknowledged, imperatively forbid us—unnecessarily to place upon the language of an instrument a construction, that either stultifies the parties to it to such a degree as the slave construction does the people of the North, or that makes them consent to having such glaring and outrageous injustice practised upon them.

But it will be said in reply to these arguments, that, as a compensation to the North for the injustice of slave representation, all direct taxes are to be based on population; that slaves are to be counted as three fifths citizens, in the apportionment of those taxes; and that the injustice of the representation being thus compensated for, by a corresponding taxation, its absurdity is removed.

But this reply is a mere assumption of the fact that the constitution authorizes slave taxation; a fact, that, instead of being assumed, stands only on the same evidence as does the slave representation, and therefore as much requires to be proved by additional evidence, as does the representation itself. The reply admits that the slave representation is so groundless, absurd, unequal, and unjust, that it would not be allowable to put that construction upon the clause, if it had provided only for representation. Yet it attempts to support the construction by alleging, without any additional evidence, that the direct taxation, (if there should ever be any direct taxation,) was to be on the same absurd principle. But this is no answer to the objection. It only fortifies it; for it accuses the constitution of two absurdities, instead of one, and does it upon evidence that is admitted to be insufficient to sustain even one. And the argument for slavery does, in reality, accuse the constitution of these two absurdities, without bringing sufficient evidence to prove either of them. Not having sufficient evidence to prove either of these absurdities, independently of the other, it next attempts to make each absurdity prove the other. But two legal absurdities, that are proved only by each other, are not proved at all. And thus this whole fabric of slave representation and slave taxation falls to the ground.

Undoubtedly, if the clause authorizes slave representation, it also authorizes slave taxation; or if it authorizes slave taxation, it undoubtedly authorizes slave representation. But the first question to be settled is, whether it authorizes either? And this certainly is not to be answered in the affirmative, by simply saying that, if it authorizes one, it authorizes the other.

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If any one wishes to prove that the clause authorizes slave representation, he must first prove that point independently of the taxation, and then he may use the representation to prove the taxation; or else he must first prove the slave taxation, and then he may use the taxation to prove the representation. But he cannot use either to prove the other, until he has first proved one independently of the other; a thing which probably nobody will ever undertake to do. No one certainly will ever undertake to prove the representation independently of the taxation; and it is doubtful whether any one will ever undertake to prove the taxation, independently of the representation. The absurdity and incongruity of reckoning one single kind of property as persons, in a government and system of taxation founded on persons, are as great as would be that of valuing one single class of persons as property, in a government and system of taxation founded on property. The absurdity and incongruity in each case would be too great to be allowable, if the language would admit, (as in this case it does admit,) of another and reasonable construction.

Nevertheless, if any one should think that this slave taxation is not a thing so absurd or unjust as to forbid that construction, still, the fact that, if that construction be established, the absurd and unjust representation will follow as a consequence from it, is a sufficient reason why it cannot be adopted. For we are bound to make the entire clause harmonious with itself, if possible; and, in doing so, we are bound to make it reasonable throughout, if that be possible, rather than absurd throughout.

I have thus far admitted, for the sake of the argument, the common idea, that the taxation, which the slave construction of this clause would provide for, would be some compensation to the North, for the slave representation. But, in point of fact, it would not necessarily be any compensation at all; for it is only direct taxes that are to be apportioned in this manner, and the government is not required to lay direct taxes at all. Indeed, this same unjust representation, which it is claimed that the clause authorizes, may be used to defeat the very taxation which it is said was allowed as an equivalent for it. So that, according to the slave argument, the unjust representation is made certain, while the compensating taxation is made contingent; and not only contingent, but very likely contingent upon the will of the unjust representation itself. Here, then, are another manifest and gross absurdity and injustice, which the slave construction is bound to overcome, before it can be adopted.

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But suppose the taxation had been made certain, so as to correspond with, and compensate for, the representation—what then? The purport of the clause would then have been, that the North said to the South, “We will suffer you to govern us, (by means of an unequal representation,) if you will pay such a portion, (about one sixth,) of our taxes.” Certainly no construction, unless an unavoidable one, is allowable, that would fasten upon the people of the north the baseness and the infamy of having thus bargained away their equal political power for money; of having sold their freedom for a price. But when it is considered how paltry this price was, and that its payment was not even guarantied, or likely ever to be made, such a construction of the contract would make the people of the North as weak and foolish, as infamous and despicable. Is there a man in the whole northern states, that would now consent to such a contract for himself and his children? No. What right, then, have we to accuse all our fathers, (fathers too who had proved their appreciation of liberty by risking life and fortune in its defence,) of doing what none of us would do? No legal rules of interpretation, that were ever known to any decent tribunal, authorize us to put such a construction upon their instrument as no reasonable and honorable man would ever have agreed to. There never lived a man in the northern states, who would have consented to such a contract, unless bribed or moved to it by some motive beyond his proportionate share in such a price. Yet this price is all the motive that can be legally assigned for such a contract; for the general benefits of the Union must be presumed to have been equal to each party. If any difference were allowable in this respect, it must have been in favor of the North, for the South were the weaker party, and needed union much more than the north.

This question has thus far been treated as if the South had really made some pretence, at least, of paying more than her share of taxation. But this is by no means the true mode of presenting the question; because these persons, it must be remembered, whom it is claimed were to be represented and taxed only as three fifths of a person each, were legally free by the then existing State constitutions; and, therefore, instead of being slaves, not entitled to be represented or taxed at all as persons, were really entitled to be represented, and liable to be taxed, as units, equally with the other people of the United States. All this the North must be presumed to have known. The true mode of presenting the question, [242] therefore, is this, viz., 1. Whether the South, for the privilege of enslaving a portion of her people, of holding them in slavery under the protection of the North, and of saving two fifths of her direct taxation upon them, agreed to surrender two fifths of her representation on all she should enslave? and, 2. Whether the North, in order to secure to herself a superiority of representation, consented to the enslavement of a portion of the Southern people, guarantied their subjection, and agreed to abate two fifths of the direct taxation on every individual enslaved? This is the true mode of presenting the subject; and the slave construction of the clause answers these questions in the affirmative. It makes the North to have purchased for herself a superior representation, and to have paid a bounty on slavery, by remitting taxes to which the South would have been otherwise liable; and it makes the South to have chartered away her equal representation, her equal political power—makes her, in fact, to have sold her own liberties to the North, for a pitiful amount of taxation, and the privilege of enslaving a part of her own people.

Such is the contract—infamous on the part of both North and South, and base, suicidal, and servile on the part of the South—which the slave construction would make out of this provision of the constitution. Such a contract cannot be charged upon political communities, unless it be “expressed with irresistible clearness.” Much less can it be done on the evidence of language, which equally well admits of a construction that is rational, honorable, and innocent, on the part of both.

The construction which legal rules require, to wit, that “free persons” mean the citizens, and “all other persons” the aliens, avoids all these obstacles in the way of making this clause an honorable, equal, and reasonable contract.

CHAPTER XX.: WHY ALIENS ARE COUNTED AS “THREE FIFTHS.”

There are both justice and reason in a partial representation, and a partial taxation, of aliens. They are protected by our laws, and should pay for that protection. But as they are not allowed the full privileges of citizens, they should not pay an equal tax with the citizens. They contribute to the strength and resources [243] of the government, and therefore they should be represented. But as they are not sufficiently acquainted with our system of government, and as their allegiance is not made sufficiently sure, they are not entitled to an equal voice with the citizens, especially if they are not equally taxed.

But it has been argued* that aliens were likely to be in about equal numbers in all the States, in proportion to the citizens; and that therefore no great inequality would have occurred, if no separate account had been taken of them. But it is not true that aliens were likely to be in equal numbers in the several States in proportion to the citizens. Those States whose lands were already occupied, like Connecticut, Rhode Island, and Massachusetts, (exclusive of Maine,) and who could not expect to retain even so much as their natural increase of population, could not expect to receive the same additions to it by the immigration of foreigners as New York, Pennsylvania, and other States, that still had immense bodies of unoccupied lands. And none of the old thirteen States could expect long to have the same proportion of aliens as the new States that were to be opened in the west. And even those new States, that were then about to be opened, would soon become old, and filled with citizens, compared with other States that were to be successively opened still further west.

This inequality in the proportion of aliens in the respective States, was then, and still is, likely to be for centuries an important political element; and it would have been weak, imprudent, short-sighted, and inconsistent with the prevailing notions of that time, of all previous time, and of the present time, for the constitution to have made no provision in regard to it. And yet, on the slave hypothesis, the constitution is to be accused of all this weakness, imprudence, short-sightedness, and inconsistency; and, what is equally inadmissible, is to be denied all the credit of the intentions, which, on the alien hypothesis, the clause expresses; intentions, the wisdom, justice, and liberality of which are probably more conspicuous, and more harmoniously blended, than in any other provision in regard to aliens, that any nation on earth ever established, before or since.

It is as unnatural and absurd, in the interpretation of an instrument, to withhold the credit of wise and good intentions, where the language indicates them, as it is to attribute bad or foolish ones, [244] where the language does not indicate them. And hence the positive merits of this clause, on the alien hypothesis, are entitled to the highest consideration; and are moreover to be contrasted with its infamous demerits, on the slave hypothesis.

The preceding view of this clause is strongly confirmed by other parts of the constitution. For example: The constitution allows aliens, equally with the citizens, to vote directly in the choice of representatives to congress, and indirectly for senators and president, if such be the pleasure of the State governments.* Yet they are not themselves eligible to these three offices, although they are eligible to all other offices whatsoever under the constitution.† All that is required of them is simply the official oath to support the constitution; the same oath that is required of citizens.

Again. The constitution of the United States lays no restraint upon their holding, devising, and inheriting real estate, if such should be the pleasure of the State governments. And in many, if not all, the States, they are allowed to hold, devise, and inherit it.

Now the facts, that they are not restrained by the constitution from holding, devising, and inheriting real estate; that they have the permission of the constitution to vote, (if the State governments shall please to allow them to do so;) and that they are eligible to a part of the offices, but not to all, show that the constitution regards them not as aliens, in the technical sense of that term,‡ but as partial citizens. They indicate that the constitution intended to be consistent with itself throughout, and to consider them, in reality, what this argument claims that it considers them in respect of representation and taxation, viz., as three fifths citizens.

The same reason that would induce the constitution to make aliens eligible to all offices, except the three named, (to wit, those [245] of representative, senator, and president,) and to allow them the right of voting, would also induce it to allow them some right of being counted in making up the basis of representation. On the other hand, the same reasons which would forbid their eligibility, as representatives, senators, and presidents, would forbid their being reckoned equal to citizens, in making up the basis of representation; and would also forbid their votes for those officers being counted as equal to the votes of citizens. Yet a single vote could not be divided so as to enable each alien to give three fifths, or any other fraction, of a vote. Here then was a difficulty. To have allowed the separate States full representation for their aliens, as citizens, while it denied the aliens themselves the full rights of citizenship, (as, for instance, eligibility to the legislative and highest executive offices of the government,) would have been inconsistent and unreasonable. How, then, was this matter to be arranged? The answer is, just as this argument claims that it was arranged, viz., by allowing the aliens full liberty of voting, at the discretion of the State governments, yet at the same time so apportioning the representation among the States, that each State would acquire no more weight in the national government, than if her aliens had each given but three fifths of a vote, instead of a full vote.

In this manner all the inconsistency of principle, which, it has been shown, would have otherwise existed between the different provisions of the constitution, relative to aliens, as compared with citizens, was obviated. At the same time justice was done to the States, as States; also to the citizens, as citizens; while justice, liberality, and consistency were displayed towards the aliens themselves. The device was as ingenious, almost, as the policy was wise, liberal, and just.

Compare now the consistency and reason of this arrangement with the inconsistency and absurdity of the one resulting from the slave hypothesis. According to the latter, the States are allowed the full weight of their aliens, as citizens, in filling those departments of the government, (the legislative and highest executive,) which aliens themselves are not allowed to fill. 2. Aliens are allowed full votes with the citizens in filling offices, to which, (solely by reason of not being citizens,) they are not eligible. 3. And what is still more inconsistent, absurd, and atrocious even, half the States are allowed a three fifths representation for a class of persons, whom such States have made enemies to the nation, [246] and who are allowed to fill no office, are allowed no vote, enjoy no protection, and have no rights in, or responsibility to, the government.

If legal rules require us to make an instrument consistent, rather than inconsistent, with itself, and to give it all a meaning that is reasonable and just, rather than one that is unjust and absurd, what meaning do they require us to give to the constitution, on the point under consideration?

The only imperfection in the constitution on this point seems to be, that it does not secure the elective franchise to aliens. But this omission implies no disfavor of aliens, and no inconsistency with the actual provisions of the constitution; nor is it any argument against the theory here maintained; for neither does the constitution secure this franchise to the citizens, individually, as it really ought to have done. It leaves the franchise of both citizens and aliens at the disposal of the State governments separately, as being the best arrangement that could then be agreed upon, trusting, doubtless, that the large number of aliens in each State would compel a liberal policy towards them.

From this whole view of the subject, it will be seen that the constitution does not, in reality, consider unnaturalized persons as aliens, in the technical sense of that term.* It considers them as partial citizens, that is, as three fifths citizens, and two fifths aliens. The constitution could find no single term by which to describe them, and was therefore obliged to use the phrase, “all other persons” than “the free,” that is, “all other persons” than those entitled to full representation, full rights of eligibility to office, and full rights of citizenship generally. The term “alien” would have been a repulsive, unfriendly, and wholly inappropriate one, by which to designate persons who were in fact members of the government, and allowed to participate in its administration on a footing so near to an equality with the citizens. As the word had acquired a technical meaning, indicative of exclusion from office, from suffrage, from the basis of representation, and from the right of holding real estate, its use in the constitution would have served to keep alive prejudices against them, and would have been made a pretext for great illiberality and injustice towards them. Hence the constitution nowhere uses the word.

How much more reasonable in itself, and how much more creditable [247] to the constitution and the people, is this mode of accounting for the use of the words “all other persons,” than the one given by the advocates of slavery, viz., that the people had not yet become sufficiently shameless to avow their treason to all the principles of liberty for which they had been distinguished, and, therefore, instead of daring to use the word “slaves,” they attempted to hide their crime and infamy under such a fig-leaf covering as that of the words “all other persons.” But the law knows nothing of any such motives for using unnatural and inappropriate terms. It presumes that the term appropriate for describing the thing is used when that term is known—as in this case it was known, if the things intended to be described were slaves.

CHAPTER XXI.: WHY THE WORD’S “FREE PERSONS” WERE USED.

The words “free persons” were, I think, of themselves—that is, independently of any desire that we may suppose a part of the people to have had to pervert their true meaning—the most appropriate words that could have been used to describe the native and naturalized citizens—that is, the full citizens, as distinguished from those partial citizens, (not technically aliens, though commonly called aliens,)—whom I have supposed the words “all other persons” were intended to describe.

The real distinction between these two classes was, that the first class were free of the government—that is, they were full members of the State, and could claim the full liberty, enjoyment and protection of the laws, as a matter of right, as being parties to the compact; while the latter class were not thus free; they could claim hardly anything as a right, (perhaps nothing, unless it were the privilege of the writ of habeas corpus,) and were only allowed, as a matter of favor and discretion, such protection and privileges as the general and State governments should see fit to accord to them.

It was important that the first of these classes should be described by some technical term; because technical terms are more definite, precise, and certain, in their meaning, than others. And in this case, where representation and taxation were concerned, the greatest precision that language admitted of was requisite. Now, I think, there was no other word in the language that would [248] have described so accurately, as does the word “free,” (when used in its technical sense,) the class which I have supposed it was intended to describe.

The technical term, in the English law, for describing a member of the state, is “free subject.”* “Free subjects” are the whole body of the people, men, women, and children, who were either born within the dominions and allegiance of the crown,† or have been naturalized by act of parliament. Individually, they are members of the state; collectively, they constitute the state. As members of the state, they are individually entitled, of right, to all the essential liberties and rights which the laws secure to the people at large.

“Free subjects” are distinguishable from aliens, or persons born out of the country, but residing in the country, and allowed, as a matter of privilege, such protection as the government sees fit to accord to them.

“Free subjects” are also distinguishable from denizens, who, in the English law, are persons born out of the country, and not naturalized by act of parliament, but have certain privileges conferred upon them by the king’s letters patent.‡

This term, “free subject,” had been universally used in this country, up to the time of the revolution, to describe members of the state, as distinguished from aliens. The colonial charters guarantied to the subjects of the British crown, settling in the colonies, that they and their children should “have and enjoy all the liberties and immunities of free and natural subjects, to all intents, constructions, and purposes whatsoever, as if they and every of them were born within the realm of England.” And up to the revolution, the colonists, as everybody knows, all claimed the rights and the title of “free British subjects.” They did not call themselves citizens of Massachusetts, and citizens of Virginia. They did not call themselves citizens at all. The word citizen was never, I think, used in the English law, except to describe persons residing, or having franchises, in a city; as, for example, [249] citizens of London. But as members of the state, they were all called “free subjects,” or “free British subjects.”

Up to the time of the revolution, then, the term “free subject” was the only term in common use to describe members of the state, as distinguished from aliens. As such it was universally known in the country, and universally used.*

The term “free” was also naturally an appropriate one by which to describe a member of a free state; one who was politically free, and entitled, of right, to the full and free enjoyment of all the liberties and rights that are secured to the members of a government established for the security of men’s personal freedom. What but a “free subject,” or “free person,” could such a member of a free state be appropriately called?

And when it is considered in what estimation “the liberties of England,” “of Englishmen,” and of English subjects everywhere, were held; that they were the peculiar pride and boast of the nation; the title of “free” is seen to be a perfectly natural and appropriate one, by which to designate the political rank of those who were entitled, of right, to the possession and enjoyment of all those liberties, as distinguished from those not entitled to the same liberties.

After the Declaration of Independence, the word “subject” was no longer an appropriate name for the people composing our republican States; for “subject” implied a sovereign; but here the people had themselves become the sovereigns. The term “subject” was, therefore, generally dropped. It seldom appears in the State constitutions formed after the Declaration of Independence.

But although the term “subject” had been generally dropped, yet, up to the adoption of the United States constitution, no other single term had been generally adopted in the several State constitutions, as a substitute for “free subject,” to describe the members of the state, as distinguished from aliens.

The terms people, inhabitants, residents, which were used in most of the State constitutions, did not mark the difference between native and naturalized members of the state, and aliens.

The term “freeman” was used in some of the State constitutions; [250] but its meaning is sometimes indefinite, and sometimes different from what it appears to be in others. For example. In the then existing Declaration of Rights of the State of Delaware, (Sec. 6,) it would seem to be applied only to male adults. In the then existing “constitution and form of government” of Maryland, (Sec. 42,) it would seem to include only males, but males under as well as over twenty-one years of age. Again, in the “Declaration of Rights” of the same State, (Secs. 17 and 21,) it would seem to include men, women, and children. In the “Declaration of Rights” of North Carolina, (Secs. 8, 9, 12, and 13,) it would seem to include men, women, and children. Again, in the “constitution or form of government” of the same State, (Secs. 7 and 8,) it would seem to mean only male persons.

The result was, that the precise legal meaning of the word was not sufficiently settled by usage in this country, nor had the word itself been so generally adopted in the State constitutions, as to make it either a safe or proper one to be introduced into the representative clause in the United States constitution. It would also have been equally objectionable with the words “free persons,” in its liability to be interpreted as the correlative of slavery.

What term, then, should the United States constitution have adopted to distinguish the full members of the state from unnaturalized persons? “Free subjects” was the only term, whose meaning was well settled, and with which the whole people of the United States had ever been acquainted, as expressing that idea, and no other. But the word “subject,” we have already mentioned, was no longer appropriate. By retaining the word “free,” which was the significant word, and substituting the word “persons” for “subjects,” the same body of people would be described as had before been described by the term “free subjects,” to wit, all the full members of the state, the native and naturalized persons, men, women, and children, as distinguished from persons of foreign birth, not naturalized. What term, then, other than “free persons,” was there more appropriate to the description of this body of the people?

The word “free,” it must be constantly borne in mind, if introduced into the constitution, would have to be construed with reference to the rest of the instrument, in which it was found, and of course with reference to the government established by that instrument. In that connection, it could legally mean nothing else than the members of the state, as distinguished from others, unless, (as [251] was not the case,) other things should be introduced into the instrument to give the word a different meaning.

The word “free,” then, was an appropriate word, in itself, and, in its technical sense, (which was its presumptive sense,) it was precisely the word, to be used in the constitution, to describe with perfect accuracy all that body of the people, native and naturalized, who were full members of the state, and entitled, of right, to the full liberty, or political freedom, secured by the laws, as distinguished from aliens and persons partially enfranchised. In short, it described, with perfect accuracy, those who were free of the government established by the constitution. This was its precise legal meaning, when construed, as it was bound to be, with reference to the rest of the instrument; and it was the only meaning that it could have, when thus construed.

A word of this kind was wanted—that is, a word of precisely the same meaning, which the word free, in its technical sense, bears, with reference to the rest of the instrument and the government established by it, was wanted—because representation and taxation were to be based upon the persons described, and perfect accuracy of description was therefore all important.

Now, those who object to the term “free persons” being taken in that sense, are bound to show a better term that might have been used to describe the same class of persons. I think there is not another word in the language, technical, or otherwise, that would have described them so accurately, or so appropriately.

The term “freemen,” we have seen, would not have been so appropriate, for it was liable to be taken in a narrower signification, so as to include only male adults, or persons entitled to the elective franchise. But “free persons” included men, women, and children, voters and non-voters, who were entitled to protection under the laws as of right.

“People,” “residents,” and “inhabitants” would not do, because they included all persons living in the country, native, naturalized, and aliens.

The only other word, that could have been used, was “citizens.” Perhaps if that word had been used, the courts, construing it with reference to the rest of the instrument, would have been bound to put the same construction upon it that they were bound to put upon the words “free persons.” Nevertheless, there were decisive objections against the adoption of it in the representative clause. The word “citizens” was not, at that time certainly, (even if it be [252] now,) a word that had acquired any such definite meaning, either in England, or in this country, as describing the great body of free and equal members of the state, men, women, and children, as had the word “free.” In fact, it had probably never been used in that sense at all in England; nor in this country up to the time of the revolution. And it is probable, (as will hereafter be seen,) that it had never been used in that sense in this country, up to the adoption of the constitution of the United States, unless in the single constitution of Massachusetts. Its meaning, in this country, is, to this day, a matter of dispute. Lawyers, as well as others, differ about it, as will presently be seen.

The word “citizen” is derived from the Latin civis; and its true signification is to describe one’s relations to a city, rather than to a state. It properly describes either a freeman of a city, or a mere resident, as will be seen by the definitions given in the note.*

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It will be seen also, by these definitions, that, taking the word in its best sense, and also with reference to the state, it could, at most, only have been held synonymous with the “free persons” or “freemen” of the state; and that we should then have been obliged to employ these latter terms, in their technical senses, in order to define it.

It would also have been even more liable than the term “free” to the objection of impliedly excluding slaves; for in Rome, where the term was used, and whence it has come down to us, they had slaves, who of course were not regarded as citizens; while in England, whence the term “free” was borrowed, they had no slaves.

The term “free citizen” was also used in the then existing State constitutions of Georgia and North Carolina, where they held slaves, (though not legally.) If, then, the word had been employed in the United States constitution, there would have been at least as much reason to say that it excluded slaves, as there would be for saying that the word “free” excluded them.

The term “citizen” was objectionable in still another respect, viz., that it seems to have been previously, as it has been since, employed to define those who enjoyed the elective franchise. But it would be unreasonable that the constitution should base representation and taxation upon a distinction between those enjoying the elective franchise, and “all other persons”—it being left with the States to say who should enjoy that franchise. Yet, if the constitution had used the word “citizen” in connection with representation and taxation, it might have given some color to that idea.

But to prove how inappropriate would have been the use of the word “citizens,” in the representative clause—where a word of a [254] precise and universally known meaning was required—the following facts are sufficient; for we are to look at the word as people looked at it at that day, and not as we look at it now, when it has grown into use, and we have become familiar with it.

Of all the State constitutions in existence in 1789, the word citizen was used in but three, to wit, those of Massachusetts, North Carolina, and Georgia; and in those, only in the following manner:

In the constitution of Massachusetts it was used some half dozen times, and in such connections as would indicate that it was used synonymously with the members of the state.

In the constitution of North Carolina it was used but once, (Sec. 40,) and then the term “free citizen,” was used; thus indicating, either that they had more than one kind of citizens, or that the word citizen itself was so indefinite that its meaning would be liable to be unknown to the people, unless the word free were used to define it.

In the constitution of Georgia it was used but once, (Art. 11,) and then in the same manner as in the constitution of North Carolina, that is, with the word free prefixed to it for the purpose of definition.

In the constitutions of the other ten States, (including the charters of Rhode Island and Connecticut,) the word citizen was not used at all.

In the Articles of Confederation it was used but once, (Art. 4, Sec. 1,) and then the term was, as in the constitutions of Georgia and North Carolina, “free citizens.”

So that there was but one constitution, (that of Massachusetts,) out of the whole fourteen then in the country, in which the word citizen could be said to be used with any definite meaning attached to it. In the three other cases in which it was used, its own indefiniteness was confessed by the addition of the word free, to define it.

A word so indefinite, and so little known to the people, as was the word citizen, was of course entirely unsuitable to be used in the representative clause for the purpose of describing the native and naturalized members of the state, men, women and children, as distinguished from persons not naturalized.

For all these reasons the word citizens was objectionable; while in reference to slavery, it would seem to have been not one whit better than the words “free persons.”

Finally, the term “free persons” was much more appropriate, [255] in itself, to designate the members of a free state, of a republican government, than was the word citizen, which, of itself, implies no necessary relationship to a free state, any more than to an aristocracy.

What objection was there, then, to the use of the words “free persons,” in the constitution, for describing the members of the state? None whatever, save this, viz., the liability of the words to be perverted from that meaning, if those who should administer the government should be corrupt enough to pervert them. This was the only objection. In every other view, the words chosen, (as well the words “free persons” as the words “all other persons,”*) were the best the English language afforded. They were the most accurate, the most simple, the most appropriate, to express the true idea on which a classification for purposes of representation and taxation should be founded.

These words, then, being, in themselves, the best that could be used, could the North have reasonably objected to their use? No. They could not say to the South, “We fear you do not understand the legal meaning which the word free will bear in this instrument.” For everybody knew that such was the meaning of that word when used to describe men’s relation to the state; and everybody was bound to know, and every lawyer and judge did actually know, that the word, if used in the manner it is in the constitution, could legally be construed only with reference to the rest of the instrument, and consequently could describe only one’s relation to the government established by the instrument; that it was only by violating all legal principles of interpretation that it could be made to describe any merely personal relation between man and man, illegal and criminal in itself, and nowhere else recognized by the instrument, but really denied by its whole purport.

The legal meaning of the word, then, was undoubted; and that was all the North could require. They could not require that other language should be introduced for the special purpose of preventing a fraudulent construction of this word. If it had been intended to form the constitution on the principle of making everything so plain that no fraudulent construction could possibly be put upon it, a new language must have been invented for the purpose; the English is wholly inadequate. Had that object been attempted, the instrument must have been interminable in length, and vastly [256] more confused in meaning than it now is. The only practicable way was for the instrument to declare its object in plain terms in the preamble, as it has done, viz., the establishment of justice, and the security of liberty, for “the people of the United States, and their posterity,” and then to use the most concise, simple, and appropriate language in all the specific provisions of the instrument, trusting that it would all be honestly and legally interpreted, with reference to the ends declared to be in view. And this rule could no more be departed from in reference to slavery, than in reference to any other of the many crimes then prevalent.

It would have been only a mean and useless insult to the honest portion of the South, (if there were any honest ones amongst them,) to have said to the whole South, (as we virtually should have done if any specific reference to slavery had been made,) “We fear you do not intend to live up to the legal meaning of this instrument. We see that you do not even enforce the State constitutions, which you yourselves establish; and we have suspicions that you will be equally false to this. We will, therefore, insert a special provision in relation to slavery, which you cannot misconstrue, if you should desire to do so.”

The South would have answered, “Whatever may be your suspicions of us, you must treat with us, if at all, on the presumption that we are honorable men. It is an insult to us for you to propose to treat with us on any other ground. If you dare not trust us, why offer to unite with us on any terms? If you dare trust us, why ask the insertion of specifications implying your distrust? We certainly can agree to no instrument that contains any imputations upon our own integrity. We cannot reasonably be asked to defame ourselves.”

Such would have been the short and decisive answer of the South, as of any other community. And the answer would have been as just, as it would be decisive.

All, then, that the North could ask of the South was to agree to an honest instrument, that should “be the supreme law of the land, anything in the constitution or laws of any State to the contrary notwithstanding,” and that all State, as well as national officers, executive, legislative, and judicial, should swear to support it. This the South were ready to do, some probably in good faith, others in bad faith. But no compact could be formed except upon the presumption that all were acting in good faith, whatever reason they may have had to suspect the contrary on [257] the part of particular portions of the country, or with reference to particular portions of the instrument. And it would have been as foolish as useless to have suggested the idea of especial guards against fraudulent constructions in particular cases.

It was a great point gained for liberty, to get the consent of the whole country to a constitution that was honest in itself, however little prospect there might be that it would be speedily enforced in every particular. An instrument, honest in itself, saved the character and conscience of the nation. It also gave into the hands of the true friends of liberty a weapon sure to be sufficient for their purposes, whenever they should acquire the numbers necessary to wield it to that end.

CHAPTER XXII.: “ALL OTHER PERSONS.”

It has been already shown, (in chapter 20,) that there was a sufficient, and even a necessary reason for the use of the words “all other persons,” in preference to the word “aliens.”

That reason was, that the word “alien” had a technical meaning, implying exclusion from office, exclusion from suffrage, and exclusion from the right to hold real estate; whereas, the constitution intended no exclusion whatever, except simply from the three offices of president, senator, and representative. The word “aliens,” then, would have been a false word of itself, and would also have furnished ground for many mischievous and unfriendly implications and prejudices against the parties concerned.

If, then, only this single class of persons had been intended, there was ample reason for the use of the words, “all other persons;” while, on the slave hypothesis—that is, on the hypothesis that the words include only slaves, as they are generally supposed to do—no reason at all can be assigned for the use of these words, instead of the word slave, except such a reason as we are not at liberty to attribute to a law or constitution, if by any other reasonable construction it can be avoided.

But whether the words “all other persons” include slaves, or unnaturalized persons, there was still another reason for the use of the words, “all other persons,” in preference either to the [258] word slaves, or the word aliens. That reason was, that the three fifths class was to include more than one kind of persons, whether that one kind were slaves or unnaturalized persons. “Indians not taxed” were to be included in the same count, and, therefore, neither the word slaves, nor the word aliens, would have correctly described all the persons intended.

So far as I am aware, all those who hold slavery to be constitutional, have believed that “Indians not taxed” were excluded both from the count of units, and the three fifths count; that the words “all other persons” refer solely to slaves; and that those words were used solely to avoid the mention of slaves, of which the people were ashamed. They have believed these facts just as firmly as they have believed that slavery was constitutional.

I shall attempt to prove that “Indians not taxed,” instead of being excluded from both counts, were included in the three fifths class, and, consequently, that the words “all other persons” were perfectly legitimate to express the two kinds of persons, of which that class were to be composed. If this proof be made, it will furnish another instance in which those who hold slavery to be constitutional, have made false law, by reason of their abandoning legal rules of interpretation, and construing everything in the light of their assumed insight into certain knavish intentions that are nowhere expressed.

The clause reads as follows:—

“Representatives and direct taxes shall be apportioned among the several States which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, (including those bound to service for a term of years, and excluding Indians not taxed,) three fifths of all other persons.”

The question arising on this clause is, whether there be any class made by it, except the class of units, and the three fifths class? Or whether there be three classes, to wit, the class of units, the three fifths class, and another class, “Indians not taxed,” who are not to be counted at all?

To state the question is nearly enough to answer it, for it is absurd to suppose there is any class of “the people of the United States” who are not to be counted at all. “Indians not taxed,” (that is, not taxed directly, for all Indians are taxed indirectly,) are as much citizens of the United States as any other persons, [259] and they certainly are not to be unnecessarily excluded from the basis of representation and taxation.*

It would seem to be grammatically plain that the words “all other persons” include all except those counted as units. And it would probably have always been plain that such was their meaning, but for the desire of some persons to make them include slaves, and their belief that, in order to make them include slaves, they must make them include nobody but slaves.

The words “including those bound to service for a term of years, and excluding Indians not taxed,” are parenthetical,† and might have been left out, without altering the sense of the main sentence, or diminishing the number of classes. They are thrown in, not to increase the number of classes, but simply to define who may, and who may not, be included in the first class, the class of units.

This is proved, not only by the fact, that the words are parenthetical, (which would alone be ample proof,) but also by the fact that the two participles, “including” and “excluding,” are connected with each other by the conjunction “and,” and are both parsed in the same manner, both having relation to the “number” counted as units, and to that alone.

The words, “excluding Indians not taxed,” exclude the Indians mentioned simply from the count of the preceding “number,” the [260] number to which the word “excluding” relates; that is, the count of units. They do nothing more. They do not exclude them from any other count; they do not create, or at all purport to create, out of them a distinct class. They do not at all imply that they are not to be counted at all. They do not, of themselves, indicate whether these Indians, that are excluded from the count of units, are, or are not, to be included in, or excluded from, any other count. They simply exclude them from the first count, leaving them to be disposed of as they may be, by the rest of the clause.

To make this point more evident, let us write the clause again, supplying two words that are necessary to make the sense more clear.

“Representatives and direct taxes shall be apportioned among the several States which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, (including therein those bound to service for a term of years, and excluding therefrom Indians not taxed,) three fifths of all other persons.”

Such is plainly the true grammatical construction of the sentence; and the phrases, “including therein,” and “excluding therefrom,” both plainly relate to one and the same number or count, to wit, the number counted as units, and to that only. Grammatically, one of these phrases has no more to do with the class of “all other persons,” than the other.

On grammatical grounds there would be just as much reason in saying that the word “including” includes servants in the class of “all other persons,” as there is in saying that the word “excluding” excludes Indians from that class; for it is perfectly apparent, that the words including and excluding refer only to one and the same number, and that number is the number counted as units.

To illustrate this point further, let us suppose these parenthetical sentences to have been transposed, and the clause to have read thus:

“By adding to the whole number of free persons, (excluding therefrom Indians not taxed, and including therein those bound to service for a term of years,) three fifths of all other persons.”

It is plain that the sense of the clause would not have been in the least altered by this transposition. Yet would anybody then have supposed that Indians were excluded from the class of “all other persons?” Or that “those bound to service for a term of years” were included in the class of “all other persons?” Certainly [261] not. Everybody would then have seen that the words including and excluding both related only to the preceding number—the number counted as units. Yet it is evident that this transposition has not at all altered the grammatical construction or the legal sense of the clause.

The argument for slavery, while it claims that the word including includes servants in the number of units only, claims that the word excluding excludes Indians both from the number of units, and also from the number of “all other persons;” that the word including includes servants in only one count, but that the word excluding excludes Indians from both counts; whereas it is perfectly manifest that the two words, including and excluding, relate to one and the same count, to wit, the count of units, and to that alone.

There would be just as much reason, on grammatical grounds in saying that the word including includes servants in both counts, as there is in saying that the word excluding excludes Indians from both counts.

Inasmuch, then, as the words of the parenthesis, viz., the words “including those bound to service for a term of years, and excluding Indians not taxed,” refer only to the count of units, and serve only to define those who may, and those who may not, be included in that count, they do not, and cannot, create any new class, additional to the two named exteriorly to the parenthesis, to wit, the class of units, and the three fifths class.

There being, then, but two classes made, and “Indians not taxed,” being specially excluded from the first, are necessarily included in the last.

Both the grammar and the law of the clause, (though perhaps not its rhetoric,) would therefore be adequately provided for, even if there were no other persons than “Indians not taxed” to be reckoned in the class of “all other persons;” for “Indians not taxed” are “other persons” than those counted as units. And we cannot, I think, make these words, “all other persons,” imply the existence of slaves, if we can find any other persons than slaves for them to refer to.

Further. There being but two classes made, to wit, the class of units and the three fifths class, and “Indians not taxed” being excluded from the first, and therefore necessarily included in the last, it would follow, if the constitution uses the word “free” as the correlative of slaves, that it either considers these Indians as slaves, or that, for purposes of representation and taxation, it counts [262] them in the same class with slaves—a thing that, so far as I know has never been done.

But perhaps it will still be said by the advocates of slavery, (for this is all they can say,) that “Indians not taxed” are not to be counted at all; that they are to be excluded from both classes.

But this is, if possible, making their case still worse. It shows how, in order to extricate themselves from one dilemma, they are obliged to involve themselves in another—that of excluding entirely from the popular basis of representation and taxation, a part of those who are not only not slaves, but are confessedly actual citizens.

To say that “Indians not taxed” are not to be counted at all; that they are to be excluded both from the class of units and the three fifths class, is not only violating the grammar of the clause, (as has already been shown,) but it is violating all common sense. Indians living under the governments of the States and the United States—that is, within the territory over which the United States and one of the several States have actually extended their civil jurisdiction—are as much citizens of the United States as anybody else; and there is no more authority given in the constitution for excluding them from the basis of representation and taxation, than there is for excluding any other persons whatever. In fact, the language of the constitution is express, that all persons shall be counted either in the class of units or in the three fifths class; and there is no escape from the mandate. The only exclusion that the constitution authorizes, is the exclusion of “Indians not taxed” from the count of units.

But perhaps it will be claimed that Indians are not citizens, and therefore they are excluded of course. But there is not the least authority for this assertion, unless it be in regard to those tribes, or nations, who, living within the chartered limits of the States, have, nevertheless, retained their separate independence, usages, and laws, and over whom the States have not extended their civil jurisdiction. The assertion is wholly groundless as to all those Indians who have abandoned their nationality, intermingled with the whites, and over whom the States have extended their jurisdiction. Such persons were as much a part of the people of the United States, and were as much made citizens by the constitution, as any other portion of the people of the country.

This exception of “Indians not taxed” from the count of units, of itself implies that Indians are citizens; for it implies that, but [263] for this express exception, they would all have been counted as units.

Again. This exception cannot be extended beyond the letter of it. It therefore applies only to those “not taxed;” and it excludes even those only from the count of units; thus leaving all that are taxed to be counted as units; which of course implies that they are citizens. And if those Indians, who are taxed, are citizens, those who are “not taxed” are equally citizens. Citizenship does not depend at all upon taxation, in the case of the Indian, any more than in the case of the white man; if it did, a man would be a citizen this year, if he happened to be taxed this year, and yet lose his citizenship next year, if he should happen not to be taxed next year.

But it will be asked, If Indians are citizens, why are they not all counted as units? The reason is obvious. The numbers of Indians in the different States were so unequal, and they contributed so little to the resources of the States in which they lived, that justice required that, in apportioning representation and taxation among the separate States, some discrimination should be made on account of this class of population. Being citizens, they must be represented; and being represented, their State must be taxed for them. And no better arrangement could be agreed on, without making too many classes, than that of ranking them, (so far as representation and taxation were concerned,) on an equality with unnaturalized persons.

It being established that Indians are citizens, it follows that those “not taxed” must be included in the basis of representation and taxation, unless expressly excluded. But the express exclusion does no more than exclude them from the count of units, and the exclusion cannot go beyond the letter. They are therefore necessarily included in the three fifths class, the class which embraces “all other persons” than those counted as units.

If “Indians not taxed” were also to be excluded from the three fifths class, the constitution would have said so; and would also have told us expressly how they should be counted, or that they should not be counted at all.

The clause has thus been explained on the ground of there being but two classes made by it, to wit, the class counted as units, and the three fifths class; which are all the classes that the grammar of the clause will allow to be made. It is to be remarked, however, that if the grammar of the clause be disregarded, and [264] three classes be made, the clause will still be consistent with the alien hypothesis. Indeed, it is immaterial, on the alien hypothesis, whether two or three classes be made. Whether the slave hypothesis can be sustained without making more than two classes, I leave for the advocates of slavery to determine.* They will, at any rate, be obliged to admit that “Indians not taxed” are included in the class described as “all other persons,” and thus lose the benefit of their stereotyped argument, that those words must mean slaves, because they could mean nothing else. They will also be obliged to give up their old surmise about the motive for using the words “all other persons”—a surmise which has always, (in their opinion,) wonderfully strengthened their law, although it seems to have contained not a particle of fact.†

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CHAPTER XXIII.: ADDITIONAL ARGUMENTS ON THE WORD “FREE.”

ARGUMENT I.

The constitutional argument for slavery rests mainly, if not wholly, upon the word free, in the representative clause; (Art. Sec. 2.)

Yet this clause does not, of itself, at all purport to fix, change or in any way affect, the civil rights or relations of any single individual. It takes it for granted that those rights and relations are fixed, as they really are, by other parts of the instrument. It purports only to prescribe the manner in which the population shall be counted, in making up the basis of representation and taxation; and to prescribe that representation and taxation shall be apportioned among the several States, according to the basis so made up. This is the whole purport of the language of the clause, and the whole of its apparent object; and it is a palpable violation of all legal rules to strain its legal operation beyond this purpose. To use the clause for a purpose nowhere avowed, [266] either in itself or the rest of the instrument, viz., that of destroying rights with which it does not at all purport to intermeddle, is carrying fraudulent and illegal interpretation to its last extent.

Yet this provision for simply counting the population of the country, and apportioning representation and taxation according to that count, has been transmuted, by unnecessary interpretation, into a provision denying all civil rights under the constitution to a part of the very “people” who are declared by the constitution itself to have “ordained and established” the instrument, and who of course, are equal parties to it with others, and have equal rights in it, and in all the privileges and immunities it secures.

If parties, answering to the several descriptions given of them in this clause, can be found, (so as simply to be counted,) without supposing any change or destruction of individual rights, as established by other parts of the instrument, we are bound thus to find and count them, without prejudice to any of their rights. This is a self-evident proposition. That parties, answering to the several descriptions, can be found, without supposing any change or destruction of individual rights, as contemplated by the other parts of the instrument to exist, has already been shown. And this fact is enough to settle the question as to the legal effect of the clause.

The whole declared and apparent object of the clause, viz., the counting of the population, and the apportionment of the representation and taxation according to that count, can be effected without prejudice to the rights of a single individual, as established by the rest of the instrument. This being the case, there is no epithet strong enough to describe the true character of that fraud which would pervert the clause to a purpose so entirely foreign to its declared and apparent object, as that of licensing the denial and destruction of men’s rights; rights everywhere implied throughout the entire instrument.

ARGUMENT II.

It would have been absurd to have used the word “free” in a sense correlative with slaves, because it is a self-evident truth that, taking the word in that sense, all men are naturally and rightfully free. This truth, like all other natural truths, must be presumed to be taken for granted by all people, in forming their constitutions, unless they plainly deny it. Written constitutions of government could not be established at all, unless they took for [267] granted all natural truths that were not plainly denied; because, the natural truths that must be acted upon in the administration of government are so numerous, that it would be impossible to enumerate them. They must, therefore, all be taken for granted unless particular ones be plainly denied. Furthermore, this particular truth, that all men are naturally free, had but recently been acknowledged, and proclaimed even, by the same people who now established the constitution. For this people, under such circumstances, to describe themselves, in their constitution, as “the whole number of free persons, and three fifths of all other persons,” (taking the word “free” in the sense correlative with slaves,) would have been as absurd, in itself, (independently of things exterior to the constitution, and which the constitution certainly cannot be presumed to sanction,) as it would have been to have described themselves as “the whole number of males and females, and three fifths of all other persons.”

Such an absurdity is not to be charged upon a people, upon the strength of a single word, which admits of a rational and appropriate construction.

ARGUMENT III.

The constitution is to be construed in consistency with the Declaration of Independence, if possible, because the two instruments are the two great enactments of the same legislators—the people. They purport to have the same objects in view, viz., the security of their liberties. The Declaration had never been repealed, and legal rules require that an enactment later in time than another, more especially if the former one be not repealed, should be construed in consistency with the earlier one, if it reasonably can be, unless the earlier one be opposed to reason or justice.*

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ARGUMENT IV.

It is perfectly manifest, from all the evidence given in the preceding pages, (including Part First of the argument,) that the word “free,” when used in laws and constitutions, to describe one class of persons, as distinguished from another living under the same laws or constitutions, is not sufficient, of itself, to imply slavery as its correlative. The word itself is wholly indefinite, as to the kind of restraint implied as its correlative.* And as slavery is the worst, it is necessarily the last, kind of restraint which the law will imply. There must be some other word, or provision, in the instrument itself, to warrant such an implication against the other class. But the constitution contains no such other word or provision. It contains nothing but the simple word “free.” While, on the other hand, it is full of words and provisions, perfectly explicit, that imply the opposite of slavery.

Under such circumstances, there can be no question which construction we are legally bound to put upon the word in the constitution.†

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ARGUMENT V.

Even if the word “free” were taken in the sense correlative with slaves, and if the words “importation of persons” were taker to authorize the importation of slaves, slavery would, nevertheless, for the most part, be now unconstitutional. The constitution would then sanction the slavery of only those individuals who were slaves at the adoption of the constitution, and those who were imported as slaves. It would give no authority whatever for the enslavement of any born in the country, after the adoption of the constitution.

The constitution is the supreme law of the land, and it operates “directly on the people and for their benefit.”* No State laws or constitutions can stand between it and the people, to ward off its benefits from them. Of course, it operates upon all the people, except those, if any, whom it has itself specially excepted from its operation. If it have excepted any from its operation, it has, at most, excepted only those particular individuals who were slaves at the adoption of the constitution, and those who should subsequently be imported as slaves. It has nowhere excepted any that should thereafter be born in the country. It has nowhere authorized Congress to pass laws excepting any who should be born in the country. It has nowhere authorized the States, or recognized the right of the States, to except from its operation any persons born in the country after its adoption. It has expressly prohibited the States from making any such exception; for it has said that itself “shall be the supreme law of the land,” (operating “directly on the people, and for their benefit,” the Supreme Court say,) “anything in the constitution or laws of any State to the contrary notwithstanding.” If the States can say, previous to any one person’s being born under the constitution, that, when born, the constitution shall not operate upon that person, or for his benefit, they may say in advance that it shall not operate upon, or for the benefit of, any person whatever who may be born under the constitution, and thus compel the United States government to die out, or fall into the hands of the naturalized citizens alone, for the want of any recruits from those born in the country.

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If, then, the slavery of those who were slaves at the adoption of the constitution, and of those who have since been imported as slaves, were constitutional, the slavery of all born in the country since the adoption of the constitution, is, nevertheless, unconstitutional.*

CHAPTER XXIV.: POWER OF THE GENERAL GOVERNMENT OVER SLAVERY.

It is a common assertion that the general government has no power over slavery in the States. If by this be meant that the States may reduce to slavery the citizens of the United States within their limits, and the general government cannot liberate them, the doctrine is nullification, and goes to the destruction of the United States government within the limits of each State, whenever such State shall choose to destroy it.

The pith of the doctrine of nullification is this, viz., that a State has a right to interpose between her people and the United States government, deprive them of its benefits, protection, and laws, and annul their allegiance to it.

If a State have this power, she can of course abolish the government of the United States at pleasure, so far as its operation within her own territory is concerned; for the government of the United States is nothing, any further than it operates upon the persons, property, and rights of the people.† If the States can arbitrarily intercept this operation, can interpose between the people and the government and laws of the United States, they can of course abolish that government. And the United States constitution, and the laws made in pursuance thereof, instead of being “the supreme law of the land,” “anything in the constitution or laws of any State to the contrary notwithstanding,” are dependent entirely upon the will of the State governments for permission to be laws at all.

A State law reducing a man to slavery, would, if valid, interpose [271] between him and the constitution and laws of the United States annul their operation, (so far as he is concerned,) and deprive him of their benefits. It would annul his allegiance to the United States; for a slave can owe no allegiance to a government that either will not, or cannot protect him.

If a State can do this in the case of one man, she can do it in the case of any number of men, and thus completely abolish the general government within her limits.

But perhaps it will be said that a State has no right to reduce to slavery the people generally within her limits, but only to hold in slavery those who were slaves at the adoption of the constitution, and their posterity.

One answer to this argument is, that, at the adoption of the constitution of the United States, there was no legal or constitutional slavery in the States. Not a single State constitution then in existence, recognized, authorized, or sanctioned slavery. All the slaveholding then practised was merely a private crime committed by one person against another, like theft, robbery, or murder. All the statutes which the slaveholders, through their wealth and influence, procured to be passed, were unconstitutional and void, for the want of any constitutional authority in the legislatures to enact them.

But perhaps it will be said, as is often said of them now, that the State governments had all power that was not forbidden to them. But this is only one of those bald and glaring falsehoods, under cover of which, even to this day, corrupt and tyrannical legislators enact, and the servile and corrupt courts, who are made dependent upon them, sustain, a vast mass of unconstitutional legislation, destructive of men’s natural rights. Probably half the State legislation under which we live is of this character, and has no other authority than the pretence that the government has all power except what is prohibited to it. The falsehood of the doctrine is apparent the moment it is considered that our governments derive all their authority from the grants of the people. Of necessity, therefore, instead of their having all authority except what is forbidden, they can have none except what is granted.

Everybody admits that this is the true doctrine in regard to the United States government; and it is equally true of the State governments, and for the same reason. The United States constitution, (amendment 10,) does indeed specially provide that the U. S. government shall have no powers except what are delegated [272] to it. But this amendment was inserted only as a special guard against usurpation. The government would have had no additional powers if this amendment had been omitted. The simple fact that all a government’s powers are delegated to it by the people, proves that it can have no powers except what are delegated. And this principle is as true of the State governments, as it is of the national one; although it is one that is almost wholly disregarded in practice.*

The State governments in existence in 1789 purported to be established by the people, and are either declared, or must be presumed, to have been established for the maintenance of justice, the preservation of liberty, and the protection of their natural rights. And those governments consequently had no constitutional authority whatever inconsistent with these ends, unless some particular powers of that kind were explicitly granted to them. No power to establish or sustain slavery was granted to any of them. All the slave statutes, therefore, that were in existence in the States, at the adoption of the United States constitution, were unconstitutional and void; and the people who adopted the constitution of the United States must be presumed to have known this fact, and acted upon it, because everybody is presumed to know the law. The constitution of the United States, therefore, can be presumed to have made no exceptions in favor of the slavery then existing in the States.†

But suppose, for the sake of the argument, that slavery had been authorized by the State constitutions at the time the United States constitution was adopted, the constitution of the United States would nevertheless have made it illegal; because the United States constitution was made “the supreme law of the land,” “anything [273] in the constitution or laws of any State to the contrary notwithstanding.” It therefore annulled everything inconsistent with it, then existing in the State constitutions, as well as everything that should ever after be added to them, inconsistent with it. It of course abolished slavery as a legal institution, (supposing slavery to have had any legal existence to be abolished,) if slavery were inconsistent with anything expressed, or legally implied, in the constitution.

Slavery is inconsistent with nearly everything that is either expressed or legally implied in the constitution. All its express provisions are general, making no exception whatever for slavery. All its legal implications are that the constitution and laws of the United States are for the benefit of the whole “people of the United States,” and their posterity.

The preamble expressly declares that “We the people of the United States” establish the constitution for the purpose of securing justice, tranquillity, defence, welfare, and liberty, to “ourselves and our posterity.” This language certainly implies that all “the people” who are parties to the constitution, or join in establishing it, are to have the benefit of it, and of the laws made in pursuance of it. The only question, then, is, who were “the people of the United States?”

We cannot go out of the constitution to find who are the parties to it. And there is nothing in the constitution that can limit this word “people,” so as to make it include a part, only, of “the people of the United States.” The word, like all others, must be taken in the sense most beneficial for liberty and justice. Besides, if it did not include all the then “people of the United States,” we have no legal evidence whatever of a single individual whom it did include. There is no legal evidence whatever in the constitution, by which it can be proved that any one man was one of “the people,” which will not also equally prove that the slaves were a part of the people. There is nothing in the constitution that can prove the slaveholders to have been a part of “the people,” which will not equally prove the slaves to have been also a part of them. And there is as much authority in the constitution for excluding slaveholders from the description, “the people of the United States,” as there is for excluding the slaves. The term “the people of the United States” must therefore be held to have included all “the people of the United States,” or it can legally be held to have included none.

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But this point has been so fully argued already, that it need not be dwelt upon here.*

The United States government, then, being in theory formed by, and for the benefit of, the whole “people of the United States,” the question arises, whether it have the power of securing to “the people” the benefits it intended for them? Or whether it is dependent on the State governments for permission to confer these benefits on “the people?” This is the whole question. And if it shall prove that the general government has no power of securing to the people its intended benefits, it is, in no legal or reasonable sense, a government.

But how is it to secure its benefits to the people? That is the question.

The first step, and an indispensable step, towards doing it, is to secure to the people their personal liberty. Without personal liberty, none of the other benefits intended by the constitution can be secured to an individual, because, without liberty, no one can prosecute his other rights in the tribunals appointed to secure them to him. If, therefore, the constitution had failed to secure the personal liberty of individuals, all the rest of its provisions might have been defeated at the pleasure of the subordinate governments. But liberty being secured, all the other benefits of the constitution are secured, because the individual can then carry the question of his rights into the courts of the United States, in all cases where the laws or constitution of the United States are involved.

This right of personal liberty, this sine qua non to the enjoyment of all other rights, is secured by the writ of habeas corpus. This writ, as has before been shown, necessarily denies the right of property in man, and therefore liberates all who are restrained of their liberty on that pretence, as it does all others that are restrained on grounds inconsistent with the intended operation of the constitution and laws of the United States.

Next after providing for the “public safety, in cases of rebellion and invasion,” the maintenance of courts for dispensing the privileges of this writ is the duty first in order, and first in importance, of all the duties devolved upon the general government; because, next after life, liberty is the right most important in itself; it is also indispensable to the enjoyment of all the other rights which [275] the general government is established to secure to the people. All the other operations of government, then, are works of mere supererogation until liberty be first secured; they are nothing but a useless provision of good things for those who cannot partake of them.

As the government is bound to dispense its benefits impartially to all, it is bound, first of all, after securing “the public safety, in cases of rebellion and invasion,” to secure liberty to all. And the whole power of the government is bound to be exerted for this purpose, to the postponement, if need be, of everything else save “the public safety, in cases of rebellion and invasion.” And it is the constitutional duty of the government to establish as many courts as may be necessary, (no matter how great the number,) and to adopt all other measures necessary and proper, for bringing the means of liberation within the reach of every person who is restrained of his liberty in violation of the principles of the constitution.*

We have thus far, (in this chapter,) placed this question upon the ground that those held in slavery are constitutionally a part of “the people of the United States,” and parties to the constitution. But, although this ground cannot be shaken, it is not necessary to be maintained, in order to maintain the duty of Congress to provide courts, and all other means necessary, for their liberation.

The constitution, by providing for the writ of habeas corpus, without making any discrimination as to the persons entitled to it, has virtually declared, and thus established it as a constitutional principle, that, in this country, there can be no property in man; for the writ of habeas corpus, as has before been shown,† necessarily involves a denial of the right of property in man. By declaring that the privilege of this writ “shall not be suspended, unless when, in cases of rebellion or invasion the public safety may require it,” the constitution has imposed upon Congress the duty of providing courts, and if need be, other aids, for the issuing of this writ in behalf of all human beings within the United States, who may be restrained on claim of being property. Congress are [276] bound by the constitution to aid, if need be, a foreigner, an alien, an enemy even, who may be restrained as property. And if the people of any of the civilized nations were now to be seized as slaves, on their arrival in this country, we can all imagine what an abundance of constitutional power would be found, and put forth, too, for their liberation.

Without this power, the nation could not sustain its position as one of the family of civilized nations; it could not fulfil the law of nations, and would therefore be liable to be outlawed in consequence of the conduct of the States. For example. If the States can make slaves of anybody, they can certainly make slaves of foreigners. And if they can make slaves of foreigners, they can violate the law of nations; because to make slaves of foreigners, is to violate the law of nations. Now the general government is the only government known to other nations; and if the States can make slaves of foreigners, and there were no power in the general government to liberate them, any one of the States could involve the whole nation in the responsibility of having violated the law of nations, and the nation would have no means of relieving itself from that responsibility by liberating the persons enslaved; but would have to meet, and conquer or die in, a war brought upon it by the criminality of the State.

This illustration is sufficient to prove that the power of the general government to liberate men from slavery, by the use of the writ of habeas corpus, is of the amplest character; that it is not confined to the cases of those who are a part of “the people of the United States,” and so parties to the constitution; that it is limited only by the territory of the country; and that it exists utterly irrespective of “anything in the constitution or laws of any State.”

This power, which is bound to be exerted for the liberation of foreigners, is bound to be exerted also for the liberation of persons born on the soil, even though it could be proved, (which it cannot,) that they are not legally parties to the constitution. The simple fact of their not being parties to the constitution, (if that fact were proved,) would no more alter the power or duty of Congress in relation to securing them the privilege of the writ of habeas corpus, than the same fact does in the case of foreigners, who confessedly are not parties to the constitution; unless, indeed, their coming into the country under the guaranty afforded by the habeas corpus clause of the constitution makes them, so far, parties to it. But [277] this clause could operate as no guaranty of liberty to foreigners, unless it guarantied liberty to all born on the soil; for, there being no distinction of persons made, it certainly could not be claimed that it guarantied greater privileges to foreigners than to the least favored of those born on the soil. So that it will still result that, unless the constitution, (as it may be executed by the general government alone,) guaranties personal liberty to all born in the country, it does not guaranty it to foreigners coming into the country; and if it do not guaranty it to foreigners coming into the country, any single State, by enslaving foreigners, can involve the whole nation in a death struggle in support of such slavery.

If these opinions are correct, it is the constitutional duty of Congress to establish courts, if need be, in every county and township even, where there are slaves to be liberated; to provide attorneys to bring the cases before the courts; and to keep a standing military force, if need be, to sustain the proceedings.

In addition to the use of the habeas corpus, Congress have power to prohibit the slave trade between the States, which, of itself, would do much towards abolishing slavery in the northern slaveholding States. They have power also to organize, arm, and discipline the slaves as militia, thus enabling them to aid in obtaining and securing their own liberty.

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APPENDIX A.: FUGITIVE SLAVES.

[The following article was first published in 1850, as an appendix to an argument, entitle: “A Defence for Fugitive Slaves, against the Acts of Congress of February, 12, 1793 and September 18, 1850. By Lysander Spooner.” It repeats some ideas already advanced in the preceding pages; but, as it is mostly new, it has been thought worthy of preservation by being included in this volume.]

NEITHER THE CONSTITUTION, NOR EITHER OF THE ACTS OF CONGRESS OF 1793 OR 1850, REQUIRES THE SURRENDER OF FUGITIVE SLAVES.

In the preceding chapters it has been admitted, for the sake of the argument, that the constitution, and acts of Congress of 1793 and 1850, require the delivery of Fugitive Slaves. But such really is not the fact. Neither the constitutional provision, nor either of said acts of Congress, uses the word slave, nor slavery, nor any language that can legally be made to apply to slaves. The only “person” required by the constitution to be delivered up is described in the constitution as a “person held to service or labor in one state, under the laws thereof.” This language is no legal description of a slave, and can be made to apply to a slave only by a violation of all the most imperative rules of interpretation by which the meaning of all legal instruments is to be ascertained.

The word “held” is a material word, in this description. Its legal meaning is synonymous with that of the words “bound,” and “obliged.” It is used in bonds, as synonymous with those words, and in no other sense. It is also used in laws, and other legal instruments. And its legal meaning is to describe persons held by some legal contract, obligation, duty, or authority, which the law will enforce. Thus, in a bond, a man acknowledges himself “held, and firmly bound and obliged” to do certain things mentioned in the bond,—and the law will compel a fulfilment of the obligation. The laws “hold” men to do various things; and by holding them to do those things is meant that the laws will compel them to do them. Wherever a person is described in the laws as being “held” to do anything,—as to render “service or labor,” for example,—the legal meaning invariably is that he is held by some legal contract, obligation, duty, or authority, which the laws will enforce,—(either specifically, or by compelling payment of damages for non-performance.) I presume no single instance can be found, in any of the laws of this country, since its first settlement, in which the word “held” is used in any other than this legal sense, when used to describe a person who is “held” to do anything “under the laws.” And such is its meaning, and its only meaning, in this clause of the constitution. If there could be a doubt on this point, that doubt would be removed by the additional words, “under the laws,” and the word “due,” as applied to the “service or labor,” to which the person is “held.”

Now, a slave is not “held” by any legal contract, obligation, duty, or authority, which the laws will enforce. He is “held” only by brute force. One person [280] beats another until the latter will obey him, work for him if he require it, or do nothing if he require it. This is slavery, and the whole of it. This is the only manner in which a slave is “held to service or labor.”

The laws recognize no obligation on the part of the slave to labor for or serve his master. If he refuse to labor, the law will not interfere to compel him. The master must do his own flogging, as in the case of an ox or a horse. The laws take no more cognizance of the fact whether a slave labors or not, than they do of the fact whether an ox or a horse labors.

A slave, then, is no more “held” to labor, in any legal sense, than a man would be in Massachusetts, whom another person should seize and beat until he reduced him to subjection and obedience. If such a man should escape from his oppressor, and take refuge in Carolina, he could not be claimed under this clause of the constitution, because he would not be “held” in any legal sense, (that is, by any legal contract, obligation, duty, or authority,) but only by brute force. And the same is the case in regard to slave.*

It is an established rule of legal interpretation, that a word used in laws, to describe legal rights, must be taken in a legal sense. This rule is as imperative in the interpretation of the constitution as of any other legal instrument. To prove this, let us take another example. The constitution (Art. I. Sec. 6) provides that “for any speech or debate in either house, they (the senators and representatives) shall not be questioned in any other place.” Now, this provision imposes no restriction whatever upon the senators and representatives being “questioned for any speech or debate,” by anybody and everybody, who may please to question them, or in any and every place, with this single exception, that they must not “be questioned” legally,—that is, they must not be held to any legal accountability.

It would be no more absurd to construe this provision about questioning senators and representatives, so as to make it forbid the people, in their private capacity, to ask any questions of their senators and representatives, on their return from Congress, as to their doings there, instead of making it apply to a legal responsibility, than it is to construe the words “held to service or labor” as applied to a [281] person held simply by brute force, (as in the case supposed in Massachusetts,) instead of persons held by some legal contract, obligation, or duty, which the law will enforce.

As the slave, then, is “held to service or labor” by no contract, obligation, or duty, which the law will enforce, but only by the brute force of the master, the provision of the constitution in regard to “persons held to service or labor” can have no more legal application to him than to the person supposed in Massachusetts, who should at one time be beaten into obedience, and afterwards escape into Carolina.

The word “held” being, in law, synonymous with the word “bound,” the description, “person held to service or labor,” is synonymous with the description in another section, (Art. 1, Sec. 2,) to wit, “those bound to service for a term of years.” The addition, in the one case, of the words “for a term of years,” does not alter the meaning; for it does not appear that, in the other case, they are “held” beyond a fixed term.

In fact, everybody, courts and people, admit that “persons bound to service for a term of years,” as apprentices, and other indented servants, are to be delivered up under the provision relative to “persons held to service or labor.” The word “held,” then, is regarded as synonymous with “bound,” whenever it is wished to deliver up “persons bound to service.” If, then, it be synonymous with the word “bound,” it applies only to persons who are “bound” in a legal sense,—that is, by some legal contract, obligation, or duty, which the law will enforce. The words cannot be stretched beyond their necessary and proper legal meaning; because all legal provisions in derogation of liberty must be construed strictly. The same words that are used to describe a “person held to service or labor” by a legal contract, or obligation, certainly cannot be legally construed to include also one who is “held” only by private violence, and brute force.

Mr. Webster, in his speech of March 7th, 1850, admits that the word “held” is synonymous with the word “bound,” and that the language of the constitution itself contains no requirement for the surrender of fugitive slaves. He says:

“It may not be improper here to allude to that—I had almost said celebrated—opinion of Mr. Madison. You observe, sir, that the term slavery is not used in the constitution. The constitution does not require that fugitive slaves shall be delivered up; it requires that persons bound to service in one state, and escaping into another, shall be delivered up. Mr. Madison opposed the introduction of the term slave or slavery into the constitution; for he said he did not wish to see it recognized by the constitution of the United States of America that there could be property in men.”

Had the constitution required only that “persons bound to service or labor” should be delivered up, it is evident that no one would claim that the provision applied to slaves. Yet it is perfectly evident, also, that the word “held” is simply synonymous with the word “bound.”

One can hardly fail to be astonished at the ignorance, fatuity, cowardice, or corruption, that has ever induced the North to acknowledge, for an instant, any constitutional obligation to surrender fugitive slaves.

The Supreme Court of the United States, in the Prigg case, (the first case in which this clause of the constitution ever came under the adjudication of that court,) made no pretence that the language itself of the constitution afforded any justification for a claim to a fugitive slave. On the contrary, they made the audacious and atrocious avowal, that, for the sole purpose of making the clause apply to slaves, they would disregard—as they acknowledged themselves obliged to disregard—all [282] the primary, established and imperative rules of legal interpretation. and be governed solely by the history of men’s intentions, outside of the constitution. Thus they say:

“Before, however, we proceed to the points more immediately before us, it may be well—in order to clear the case of difficulty—to say that, in the exposition of this part of the constitution, we shall limit ourselves to those considerations which appropriately and exclusively belong to it, without laying down any rules of interpretation of a more general nature. It will, indeed, probably, be found, when we look to the character of the constitution itself, the objects which it seeks to attain, the powers which it confers, the duties which it enjoins, and the rights which it secures, as well as the known historical fact that many of its provisions were matters of compromise of opposing interests and opinions, that no uniform rule of interpretation can be applied to it, which may not allow, even if it does not positively demand, many modifications in its actual application to particular clauses. And perhaps the safest rule of interpretation, after all, will be found to be to look to the nature and objects of the particular powers, duties, and rights, with all the lights and aids of contemporary history; and to give to the words of each just such operation and force, consistent with their legitimate meaning, as may fairly secure and attain the ends proposed. * * * Historically, it is well known that the object of this clause was to secure to the citizens of the slaveholding states the complete right and title of ownership in their slaves, as property, in every state in the Union into which they might escape from the state where they were held in servitude.”

—16 Peters, 610—11.

Thus it will be seen that, on the strength of history alone, they assume that “many of the provisions of the constitution were matters of compromise” (that is, in regard to slavery); but they admit that the words of those provisions cannot be made to express any such compromise, if they are interpreted according to any “uniform rule of interpretation,” or “any rules of interpretation of a more general nature” than the mere history of those particular clauses. Hence, “in order to clear the case of (that) difficulty,” they conclude that “perhaps the safest rule of interpretation, after all, will be found to be to look to the nature and objects of the particular powers, duties, and rights, with all the lights and aids of contemporary history; and to give to the words of each just such operation and force, consistent with their legitimate meaning, as may fairly secure and attain the ends proposed.”

The words “consistent with their legitimate meaning” contain a deliberate falsehood, thrown in by the court from no other motive than the hope to hide, in some measure, the fraud they were perpetrating. If it had been “consistent with the legitimate meaning of the words” of the clause to apply them to slaves, there would have been no necessity for discarding, as they did, all the authoritative and inflexible rules of legal interpretation, and resorting to history to find their meaning. They discarded those rules, and resorted to history, to make the clause apply to slaves, for no other reason whatever than that such meaning was not “consistent with the legitimate meaning of the words.” It is perfectly apparent that the moment their eyes fell upon the “words” of the clause, they all saw that they contained no legal deseription of slaves.

Stripped, then, of the covering which that falsehood was intended to throw over their conduct, the plain English of the language of the court is this: that history tells us that certain clauses of the constitution were intended to recognize and support slavery; but, inasmuch as such is not the legal meaning of the words of those clauses, if interpreted by the established rules of interpretation, we will, “in order to clear the case of (that) difficulty,” just discard those rules, and pervert the words so as to make them accomplish whatever ends history tells us were intended to be accomplished by them.

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It was only by such a naked and daring fraud as this that the court could make the constitution authorize the recovery of fugitive slaves.

And what were the rules of interpretation which they thus discarded, “in order to clear the case of difficulty,” and make the constitution subserve the purposes of slavery? One of them is this, laid down by the Supreme Court of the United States:

“The intention of the instrument must prevail; this intention must be collected from its words.”—12 Wheaton, 332.

Without an adherence to this rule, it is plain we could never know what was, and what was not, the constitution.

Another rule is that universal one, acknowledged by all courts to be imperative, that language must be construed strictly in favor of liberty and justice.

The Supreme Court of the United States have laid down this rule in these strong terms:

“Where rights are infringed, where fundamental principles are overthrown, where the general system of the laws is departed from, the legislative intention must be expressed with irresistible clearness, to induce a court of justice to suppose a design to effect such objects.”—United States vs. Fisher, 2 Cranch, 390.

Story delivered this opinion of the court, (in the Prigg case,) discarding all other rules of interpretation, and resorting to history to make the clause apply to slaves. And yet no judge has ever scouted more contemptuously than Story the idea of going out of the words of a law, or the constitution, and being governed by what history may say were the intentions of the authors. He says:

“Such a doctrine would be novel and absurd. It would confuse and destroy all the tests of constitutional rights and authorities. Congress could never pass any law without an inquisition into the motives of every member; and even then they might be reëxaminable. Besides, what possible means can there be of making such investigations? The motives of many of the members may be, nay, must be, utterly unknown, and incapable of ascertainment by any judicial or other inquiry; they may be mixed up in various manners and degrees; they may be opposite to, or wholly independent of, each other. The constitution would thus depend upon processes utterly vague and incomprehensible; and the written intent of the legislature upon its words and acts, the lex scripta, would be contradicted or obliterated by conjecture, and parole declarations, and fleeting reveries, and heated imaginations. No government on earth could rest for a moment on such a foundation. It would be a constitution of sand, heaped up and dissolved by the flux and reflux of every tide of opinion. Every act of the legislature [and, for the same reason also, every clause of the constitution] must, therefore, be judged of from its objects and intent, as they are embodied in its provisions.”

—2 Story’s Comm., 534.

Also, he says:

“The constitution was adopted by the people of the United States; and it was submitted to the whole, upon a just survey of its provisions, as they stood in the text itself. * * Opposite interpretations, and different explanations of different provisions, may well be presumed to have been presented in different bodies, to remove local objections, or to win local favor. And there can be no certainty either that the different state conventions, in ratifying the constitution, gave the same uniform interpretation to its language, or that, even in a single state convention, the same reasoning prevailed with a majority, much less with the whole, of the supporters of it. * * It is not to be presumed that even in the convention which framed the constitution, from the causes above mentioned, and other causes, the clauses were always understood in the same sense, or had precisely the same extent of operation. Every member necessarily judged for himself; and the judgment of no one could, or ought to be, conclusive upon that of others. * * * Nothing but the text itself was adopted by the people. * * Is the sense of the constitution to be ascertained, not by its own text, but by the ‘probable meaning’ to be [284] gathered by conjectures from scattered documents, from private papers, from the table-talk of some statesmen, or the jealous exaggerations of others? Is the constitution of the United States to be the only instrument which is not to be interpreted by what is written, but by probable guesses, aside from the text? What would be said of interpreting a statute of a state legislature by endeavoring to find out, from private sources, the objects and opinions of every member; how every one thought; what he wished; how he interpreted it? Suppose different persons had different opinions,—what is to be done? Suppose different persons are not agreed as to the ‘probable meaning’ of the framers, or of the people,—what interpretation is to be followed? These, and many questions of the same sort, might be asked. It is obvious that there can be no security to the people in any constitution of government, if they are not to judge of it by the fair meaning of the words of the text, but the words are to be bent and broken by the ‘probable meaning’ of persons whom they never knew, and whose opinions, and means of information, may be no better than their own? The people adopted the constitution according to the words of the text in their reasonable interpretation, and not according to the private interpretation of any particular men.”

—1 Story’s Comm. on Const., 287 to 392.

And Story has said much more of the same sort, as to the absurdity of relying upon “history” for the meaning of the constitution.

It is manifest that, if the meaning of the constitution is to be warped in the least, it may be warped to any extent, on the authority of history; and thus it would follow that the constitution would, in reality, be made by the historians, and not by the people. It would be impossible for the people to make a constitution which the historians might not change at pleasure, by simply asserting that the people intended thus or so.

But, in truth, Story and the court, in saying that history tells us that the clause of the constitution in question was intended to apply to fugitive slaves, are nearly as false to the history of the clause as they are to its law.

There is not, I presume, a word on record (for I have no recollection of having ever seen or heard of one) that was uttered, either in the national convention that framed the constitution, or in any northern state convention that ratified it, that shows that, at the time the constitution was adopted, any northern man had the least suspicion that the clause of the constitution in regard to “persons held to service or labor” was ever to be applied to slaves.

In the national convention, “Mr. Butler and Mr. Pinckney moved to require ‘fugitive slaves and servants to be delivered up like criminals.’ ” “Mr. Sherman saw no more propriety in the public seizing and surrendering a slave or servant than a horse.”—Madison papers, 1447—8.

In consequence of this objection, the provision was changed, and its language, as it now stands, shows that the claim to the surrender of slaves was abandoned, and only the one for servants retained.*

It does not appear that a word was ever uttered, in the National Convention, to show that any member of it imagined that the provision, as finally agreed upon, would apply to slaves.

But, after the national convention had adjourned, Mr. Madison and Mr. Randolph went home to Virginia, and Mr. Pinckney to South Carolina, and, in the state conventions of those states, set up the pretence that the clause was intended to apply to slaves. I think there is no evidence that any other southern member of the national convention followed their example. In North Carolina, Mr. Iredell (not [285] a member of the national convention) said the provision was intended to refer to slaves; but that “the northern delegates, owing to their particular scruples on the subject of slavery, did not choose the word slave to be mentioned.”

I think the declarations of these four men—Madison, Randolph, Pinckney, and Iredell—are all the “history” we have, that even southern men, at that time, understood the clause as applying to slaves.

In the northern conventions no word was ever uttered, so far as we have any evidence, that any man dreamed that this language would ever be understood as authorizing a claim for fugitive slaves. It is incredible that it could have passed the northern conventions without objection, (indeed, it could not have passed them at all,) if it had been understood as requiring them to surrender fugitive slaves; for, in several of them, it was with great difficulty that the adoption of the constitution was secured when no such objection was started.

The construction placed upon the provision at the present day is one of the many frauds which the slaveholders, aided by their corrupt northern accomplices, have succeeded in palming off upon the north. In fact, the south, in the convention, as it has ever done since, acted upon the principle of getting by fraud what it could not openly obtain. It was upon this principle that Mr. Madison acted when he said that they ought not to admit, in the constitution, the idea that there could be property in man. He would not admit that idea in the constitution itself; but he immediately went home, and virtually told the state convention that that was the meaning which he intended to have given to it in practice. He knew well that if that idea were admitted in the instrument itself, the north would never adopt it. He therefore conceived and adhered to the plan of having the instrument an honest and free one in its terms, to secure its adoption by the north, and of then trusting to the fraudulent interpretations that could be accomplished afterward, to make it serve the purposes of slavery.

Further proof of his fraudulent purpose, in this particular, is found in the fact that he wrote the forty-second number of the Federalist, in which he treats of “the powers which provide for the harmony and proper intercourse among the states.” But he makes no mention of the surrender of fugitives from “service or labor,” as one of the means of promoting that “harmony and proper intercourse.” He did not then dare say to the north that the south intended ever to apply that clause to slaves.

But it is said that the passage of the act of 1793 shows that the north understood the constitution as requiring the surrender of fugitive slaves. That act is supposed to have passed without opposition from the north; and the reason was that it contained no authority for, or allusion to, the surrender of fugitive slaves; but only to fugitives from justice, and “persons held to service or labor.” The south had not at that time become sufficiently audacious to make such a demand. And it was twenty-three years, so far as I have discovered, (and I have made reasonable search in the matter,) after the passage of that act, before a slave was given up, under it, in any free state, or the act was acknowledged, by the Supreme Court of any free state, to apply to slaves.

In 1795, two years after the passage of the act of Congress, and after the constitution had been in force six years, a man was tried in the Supreme Court of Pennsylvania, on an indictment, under a statute of the state, against seducing or carrying negroes or mulattoes out of the state, with the intention to sell them, or keep them, as slaves.

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“Upon the evidence in support of the prosecution, it appeared that negro Toby had been brought upon a temporary visit to Philadelphia, as a servant in the family of General Sevier, of the State of Virginia; that, when General Sevier proposed returning to Virginia, the negro refused to accompany him;” but was afterwards forcibly carried out of the state. It appeared also, in evidence, that it was proposed by Richards, the defendant, that the negro be enticed into New Jersey, (a slave state,) and there seized and carried back to Virginia.

“The evidence on behalf of the defendant proved that Toby was a slave, belonging to the father of General Sevier, who had lent him to his son merely for the journey to Philadelphia.”

The defendant was found not guilty, agreeably to the charge of the Chief Justice; and what is material is, that the case was tried wholly under the laws of Pennsylvania, which permitted any traveller who came into Pennsylvania, upon a temporary excursion for business or amusement, to detain his slave for six months, and entitled him to the aid of the civil police to secure and carry him away.—Respublica vs. Richards, 2 Dallas, 224.

Not one word was said, by either court or counsel, of the provision of the United States constitution in regard to “persons held to service or labor,” or the act of 1793, as having any application to slaves, or as giving any authority for the recovery of fugitive slaves. Neither the constitution nor the act of Congress was mentioned in connection with the subject.

Is it not incredible that this should have been the case, if it had been understood, at that day, that either the constitution or the act of 1793 applied to slaves?

Would a man have used force in the case, and thus subjected himself to the risk of an indictment under the state laws? or would there have been any proposition to entice the slave into a slave state, for the purpose of seizing him, if it had been understood that the laws of the United States were open to him, and that every justice of the peace (as provided by the act of 1793) was authorized to deliver up the slave?

It cannot reasonably be argued that it was necessary to use force or fraud to take the slave back, for the reason that he had been brought, instead of having escaped, into Pennsylvania; for that distinction seems not to have been thought of until years after. The first mention I have found of it was in 1806.—Butler vs. Hopper, 1 Washington, C. C. R. 499.

In 1812 it was first acknowledged by the Supreme Court of New York that the act of 1793 applied to slaves, although no slave was given up at the time. But New York then had slaves of her own.—Glen vs. Hodges, 9 Johnson, 67.

In 1817 the Supreme Court of Pennsylvania first acknowledged that the constitution and the act of 1793 applied to slaves. But no slave was then given up.—Commonwealth vs. Holloway, 2 Sargent and Rawle, 305.

In 1823 the Supreme Court of Massachusetts first acknowledged that the constitutional provision in regard to “persons held to service or labor” applied to slaves.—Commonwealth vs. Griffith, 2 Pickering, 11.

Few, if any, slaves have ever been given up under the act of 1793, in the free states, until within the last twenty or thirty years. And the fact furnishes ground for a strong presumption that, during the first thirty years after the constitution went into operation, it was not generally understood, in the free states, that the constitution required the surrender of fugitive slaves.

But, it is said that the ordinance of 1787, passed contemporaneously with the [287] formation of the constitution, requires the delivery of fugitive slaves, and that the constitution ought to be taken in the same sense. The answer to this allegation is, that the ordinance does not require the delivery of fugitive slaves, but only of persons “from whom service or labor is lawfully claimed.” This language, certainly, is no legal description of a slave.

But beyond, and additional to, all this evidence, that the constitution does not require the surrender of fugitive slaves, is the conclusive and insuperable fact, that there is not now, nor ever has been, any legal or constitutional slavery in this country, from its first settlement. All the slavery that has ever existed, in any of the colonies or states, has existed by mere toleration, in defiance of the fundamental constitutional law.

Even the statutes on the subject have either wholly failed to declare who might and who might not be made slaves, or have designated them in so loose and imperfect a manner, that it would probably be utterly impossible, at this day, to prove, under those statutes, the slavery of a single person now living. Mr. Mason admits as much, in the extracts already given from his speech.

But all the statutes on that subject, whatever the terms, have been unconstitutional, whether passed under the colonial charters, or since under the state governments. They were unconstitutional under the colonial charters, because those charters required the legislation of the colonies to “be conformable, as nearly as circumstances would allow, to the laws, customs and rights, of the realm of England.” Those charters were the fundamental constitutions of the colonies, and, of course, made slavery illegal in the colonies,—inasmuch as slavery was inconsistent with the “laws, customs, and rights, of the realm of England.*

There was, therefore, no legal slavery in this country so long as we were colonies,—that is, up to the time of the Revolution.

After the Declaration of Independence, new constitutions were established in eleven of the states. Two went on under their old charters. Of all the new constitutions that were in force at the adoption of the constitution of the United States in 1789, not one authorized, recognized or sanctioned, slavery.† All the recognitions [288] of slavery that are now to be found in any of the state constitutions, have been inserted since the adoption of the constitution of the United States.

There was, therefore, no legal or constitutional slavery, in any of the states, up to the time of the formation and adoption of the constitution of the United States, in 1787 and 1789.

There being no legal slavery in the country at the adoption of the constitution of the United States, all “the people of the United States” became legally parties to that instrument, and, of course, members of the United States government, by its adoption. The constitution itself declares, that “We, the people of the United States, * * do ordain and establish this constitution.” The term “people,” of necessity, includes the whole people; no exception being made, none can be presumed; for such a presumption would be a presumption against liberty.

After “the people” of the whole country had become parties to the constitution of the United States, their rights, as members of the United States government, were secured by it, and they could not afterwards be enslaved by the state governments; for the constitution of the United States is “the supreme law,” (operating “directly on the people, and for their benefit,” says the Supreme Court, 4 Wheaton, 404—5,) and necessarily secures to all the people individually all the rights it intended to secure to any; and these rights are such as are incompatible with their being enslaved by subordinate governments.

But it will be said that the constitution of the United States itself recognizes slavery, to wit, in the provision requiring “the whole number of free persons,” and “three-fifths of all other persons,” to be counted, in making up the basis of representation and taxation. But this interpretation of the word “free” is only another of the fraudulent interpretations which the slaveholders and their northern accomplices have succeeded in placing upon the constitution.

The legal and technical meaning of the word “free,” as used in England for centuries, has been to designate a native or naturalized member of the state, as distinguished from an alien, or foreigner not naturalized. Thus the term “free British subject” means, not a person who is not a slave, but a native born or naturalized subject, who is a member of the state, and entitled to all the rights of a member of the state, in contradistinction to aliens, and persons not thus entitled.

The word “free” was used in this sense in nearly or quite all the colonial charters, the fundamental constitutions of this country, up to the time of the revolution. In 1787 and 1789, when the United States constitution was adopted, the word “free” was used in this political sense in the constitutions of the three slaveholding states, Georgia, South Carolina, and North Carolina. It was also used in this sense in the articles of Confederation.

The word “free” was also used in this political sense in the ordinance of 1787, in four different instances, to wit, three times in the provision fixing the basis of representation, and once in the article of compact, which provides that when the states to be formed out of the territory should have sixty thousand free inhabitants they should be entitled to admission into the confederacy.

That the word “free” was here used in its political sense, and not as the correlative of slaves, is proved by the fact that the ordinance itself prohibited slavery in the territory. It would have been absurd to use the word “free” as the correlative of slaves, when slaves were to have no existence under the ordinance.

This political meaning which the word “free” had borne in the English law, and in all the constitutional law of this country, up to the adoption of the constitution [289] of the United States, was the meaning which all legal rules of interpretation required that Congress and the courts should give to the word in that instrument.

But we are told again that the constitution recognizes the legality of the slave-trade, and, by consequence, the legality of slavery, in the clause respecting the “importation of persons.” But the word “importation,” when applied to “persons,” no more implies that the persons are slaves than does the word “transportation.” It was perfectly understood, in the convention that framed the constitution,—and the language was chosen with special care to that end,—that there was nothing in the language itself that legally recognized the slavery of the persons to be imported; although some of the members, (how many we do not know,) while choosing language with an avowed caution against “admitting, in the constitution, the idea that there could be property in man,” intended, if they could induce the people to adopt the constitution, and could then get the control of the government, to pervert this language into a license to the slave-trade.

This fraudulent perversion of the legal meaning of the language of the constitution is all the license the constitution ever gave to the slave-trade.

Chief Justice Marshall, in the case of the brig Wilson, (1 Brockenbrough, 433—5,) held that the words “import” and “imported,” in an act of Congress, applied to free persons as well as to slaves. If, then, the word “importation,” in the constitution, applies properly to free persons, it certainly cannot imply that any of the persons imported are slaves.

If the constitution, truly interpreted, contain no sanction of slavery, the slaves of this country are as much entitled to the writ of habeas corpus, at the hands of the United States government, as are the whites.

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APPENDIX B.: SUGGESTIONS TO ABOLITIONISTS.

Those who believe that slavery is unconstitutional, are the only persons who propose to abolish it. They are the only ones who claim to have the power to abolish it. Were the entire North to become abolitionists, they would still be unable to touch the chain of a single slave, so long as they should concede that slavery was constitutional. To say, as many abolitionists do, that they will do all they constitutionally can towards abolishing slavery, is virtually saying that they will do nothing, if they grant, at the same time, that the constitution supports slavery. To suppress the slave trade between the States, as some propose, is certainly violating the spirit, and probably the law, of the constitution, if slavery be constitutional. To talk of amending the constitution, by the action of three fourths of the States, so as to abolish slavery, is to put off the matter to some remote and unknown period. While abolitionists are amusing themselves with these idle schemes for abolishing slavery without the agency of any adequate means, slaves are doubling in numbers every twenty-five years, and the slave power is rapidly increasing in numbers, wealth, and territory. To concede that this power is entrenched behind the constitution, is, in the minds of practical men, to concede the futility of all efforts to destroy it. And its effect is to dissuade the great body of the North from joining in any efforts to that end. The mass of men will insist upon seeing that a thing can be done, before they will leave the care of their other interests to assist in doing it. Hence the slow progress of all political movements based on the admission that slavery is constitutional. What sense would there be in placing the political power of the country in the hands of men, who can show nothing that they can do with it towards accomplishing the end for which they ask it? Abolitionists, therefore, who ask political power, and yet concede slavery to be constitutional, stand in the attitude of men asking for power for their own gratification, and not for any great practical good that they can do with it.* Let them but show that they can abolish slavery, and they can then consistently ask that the government be intrusted to their hands.†

The North, with no very important exceptions, although not enthusiastic in the matter, are abolitionists at heart. It is a slander on human nature to assert that they are not. To suppose that a people, themselves the freest in the world, having no pecuniary interests that bind them to slavery, inheriting all the principles of English liberty, and living for the last seventy years under the incessant teachings of the truth that all men are born free and equal—to suppose that such a people, as a people, are not opposed to slavery, is equivalent to supposing that they are naturally incapable of such a sentiment as the love of liberty, or the hatred of oppression. [291] If the supposition were correct, it would furnish an argument against all further effort of any kind; for the task of radically changing human nature, for the purpose of abolishing slavery, is one quite too chimerical for rational men to engage in.

If the North love slavery, why did they unite to abolish the slave trade? or to exclude slavery from the north-western States? And why do they not have slaves themselves?

The people of the North want simply to know if they can do anything for the abolition of slavery, without violating their constitutional faith. For this alternative they are not prepared, (as I admit they ought to be, if they had ever pledged themselves to the support of slavery;) but they are prepared for almost anything short of that. At any rate, they are prepared to stand by the constitution, if it supports liberty. If it he said that they are not, the speediest process by which to bring them to that state of preparation, is to prove to them that slavery is unconstitutional, and thus present to them the alternative of overthrowing the constitution for the support of slavery, or of standing by it in support of freedom.

In a speech at Charleston, on the 9th of March last, (1847,) Mr. Calhoun gave the following estimate of popular feeling at the North, on the subject of slavery:—

He said, “They, (the people of the North,) may, in reference to the subject under consideration, be divided into four classes. Of these, the abolitionists proper—the rabid fanatics, who regard slavery as a sin, and thus regarding it, deem it their highest duty to destroy it, even should it involve the destruction of the constitution and the Union—constitute one class. It is a small one, not probably exceeding five per cent. of the population of those States. They voted, if I recollect correctly, about fifteen thousand, or, at most, twenty thousand votes in the last test of their strength, in the State of New York, out of about four hundred thousand votes, which would give about five per cent. Their strength in that State, I would suppose, was fully equal to their average strength in the non-slaveholding States generally.

“Another class consists of the great body of the citizens of those States, constituting at least seven tenths of the whole, who, while they regard slavery as an evil, and as such, are disposed to aid in restricting and extirpating it, when it can be done consistently with the constitution, and without endangering the peace and prosperity of the country, do not regard it as a sin to be put down by all and every means.

“Of the two others, one is a small class, perhaps, not exceeding five per cent. of the whole, who view slavery as we do, more as an institution, and the only one, by which two races, so dissimilar as those inhabiting the slaveholding States, can live together in equal numbers, in peace and prosperity, and that its abolition would end in the expatriation of one or the other race. If they regard it as an evil, it is in the abstract, just as government and all its burdens, labor with all its toils, punishment with all its inflictions, and thousands of other things, are evils, when viewed in the abstract, but far otherwise when viewed in the concrete, because they prevent a greater amount of evil than what they inflict, as is the case with slavery as it exists with us.

“The remaining class is much larger, but still relatively a small one, less, perhaps, than twenty per cent. of the whole, but possessing great activity and political influence in proportion to its numbers. It consists of the political leaders of the respective parties, and their partisans and followers. They, for the most part, are perfectly indifferent about abolition, and are ready to take either side, for or against, according to the calculation of the political chances, their great and leading object being to carry the elections, especially the presidential, and thereby receive the honors and emolument, incident to power, both in the Federal and State governments.”

This estimate is probably sufficiently accurate for all practical purposes. Adopting it as correct, it shows that five per cent. only of the North sympathize with the South; that the other ninety-five per cent., (seventy-five per cent. acting from principle, and twenty per cent. for spoils,) “are disposed to aid in restricting and extirpating slavery, when it can be done consistently with the constitution, and without endangering the peace and prosperity of the country.”

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The South has long been teaching the North, (and more of late than ever,) how much the maintenance of slavery has to do with promoting “the peace and prosperity of the country.” The lesson is learned. The only other point is the constitution. The North have but to have their eyes opened to the great constitutional fraud that has been perpetrated upon the country, to be found, ninety-five per cent. of them, on the side of liberty. When the North are united, they will control the national legislation, and the appointment of the national judiciary. Of course they will then abolish slavery. Does not this prove that the only labor the abolitionists really have to perform, is to spread the truth in regard to the constitution? And should they not adopt such measures as will compel public attention to, and a speedy decision of, that question?

How shall they do this? Probably, the most speedy and effectual mode of awaking the whole nation to the question is, by stirring up discussions of it in the national and State legislatures, by means of petitions.

The subject admits of petitions of a variety of kinds. To some of them the signatures of a very large portion of the people of the North might now be obtained: while others would be signed only by the more thoroughgoing abolitionists.

Who would not sign a petition praying Congress to inform the people whether slavery had any constitutional existence in the States at the time the United States constitution was adopted?

Who would not sign a petition praying Congress to inform the people what was the meaning of the word “free,” in the English law? In the colonial charters? In the State constitutions, existing in 1789, in the States of Georgia, South Carolina, North Carolina, Delaware, and in the Articles of Confederation? And whether Congress and the courts were not bound to give it the same meaning in the representative clause of the constitution of the United States?

Who would not sign a petition praying Congress to inform the people whether any person, born in the country since the adoption of the constitution of the United States, can, consistently with that constitution, be held as a slave?

Who would not sign a petition praying Congress to inform the people whether the Supreme Court of the United States have ever given any, and if any, what, valid reasons for holding slavery to be constitutional?

Other petitions would be signed by smaller numbers of the people, such as the following:—

1. Petitions praying Congress to establish courts throughout the slaveholding States, in such numbers, and aided by such agents and attorneys, as may be necessary to bring the privileges of the writ of habeas corpus within the reach of every slave.

2. Petitions for the suppression of the slave trade between the States.

3. Petitions for organizing, arming, and disciplining the slaves as militia.

4. Petitions for having the next census distinguish the respective numbers of citizens and unnaturalized persons, and for basing the next representation upon them, counting the citizens as units, and the unnaturalized persons as three fifths units.

5. Petitions for the abolition of indirect taxation, and the apportionment of direct taxation among the States, counting the citizens as units, and the unnaturalized persons as three fifths.

The general question of the unconstitutionality of slavery should also be pressed upon the consideration of the State legislatures, by means of petitions. The opinions of these legislatures are important for these reasons:

1. The State legislatures choose the U. S. senators, and thus have a voice in the national legislation, and in the appointment of the national judiciary.

2. The free States, so called, are not free. They are liable to the incursions of the slave-hunter. They should be made free.

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3. Several of the nominally free States have, on their statute-books, what are called “Black Laws,” which are all unconstitutional.*

It is not very infrequent for legislative bodies to ask the opinions of their co-ordinate judiciaries on important questions of law. Let the State legislatures be petitioned to ask the opinions of the State judges, that we may have the opinions of the entire judiciary of the North, on this question of the constitutionality of slavery; each judge being requested to give his opinion separately, and independently of precedents.

If only a small number should at first give their opinions in favor of liberty, it would awaken universal interest in the question.

If any considerable number, influential for their talents and integrity, should give their opinions in favor of liberty, it would change the opinions of the North on this question, as it were, instantaneously.

If they should give their opinions in favor of slavery, and should give their reasons for their opinions, their reasons will be likely to pass for what they are worth. If sound, they will stand; if false, they will expose the weakness of their position, and will speedily be swept away.

If they should give their opinions in favor of slavery, and should give no reasons for their opinions, they will thereby disclose their own characters, and indicate the falsehood of their assumptions for slavery.

In order that these appeals to Congress, the State legislatures, and the courts, may be effectual, all representatives, senators, and judges should be furnished with all the evidence on which abolitionists rely for proving slavery unconstitutional.

Senators, representatives, and judges are but the servants of the people. They all swear to support the constitution of the United States. The people have a right to know how these servants understand that constitution; and to know specifically their reasons, if they have any, for officially conceding that it legalizes slavery. They are especially responsible for the freedom of their own States, and should be held to that responsibility. These agents, then, have no right to complain at having these questions addressed to them. Should they complain of it, or refuse to answer, they will thereby furnish evidence of the necessity there was for asking the questions.

Another reason why these public servants ought not to be embarrassed at having these questions addressed to them, is, that in making their answers, they will have the benefit of all the reasons ever given in support of the constitutionality of slavery, by the Supreme Court of the United States, if they can find them.

Some timid persons may imagine that if this question be pressed to a decision, and that decision should be against slavery, the result will be a dissolution of the Union. But this is an ignorant and ridiculous fear. The actual slaveowners are few in number, compared with the slaves and non-slaveholders of the South. The supposed guaranty of the constitution to slavery is the great secret of their influence at home, as well as at the North. It is that that secures their wealth and their political power. The simple agitation of the question of the unconstitutionality of slavery will strike a blow at their influence, wealth, and power, that will be felt throughout the South, and tend to separate the non-slaveholders from them. It is idle to suppose that the non-slaveholders of the South are going to sacrifice the Union for the sake of slavery. Many of them would hail as the highest boon [294] a constitutional deliverance from slaveholding oppressions. And when the question shall be finally settled against the constitutionality of slavery, the slaveholders will find themselves deserted of all reliable support; the pecuniary value of their slaves will have vanished before the prospect of a compulsory emancipation; and this slave power, that has so long strode the country like a colossus, will sink into that contempt and insignificance, both at home and abroad, into which tyrants, so mean and inhuman, always do sink, when their power is broken. They will hardly find a driver on their plantations servile enough, or fool enough, to go with them for a dissolution of the Union.

Endnotes

*

Jones on Bailments, 133.

†

Kent, describing the difficulty of construing the written law, says:—

“Such is the imperfection of language, and the want of technical skill in the makers of the law, that statutes often give occasion to the most perplexing and distressing doubts and discussions, arising from the ambiguity that attends them. It requires great experience, as well as the command of a perspicuous diction, to frame a law in such clear and precise terms, as to secure it from ambiguous expressions, and from all doubts and criticisms upon its meaning.”—Kent, 460.

*

This condemnation of written laws must, of course, be understood as applying only to cases where principles and rights are involved, and not as condemning any governmental arrangements, or instrumentalities, that are consistent with natural right, and which must be agreed upon for the purpose of carrying natural law into effect. These things may be varied, as expediency may dictate, so only that they be allowed to infringe no principle of justice. And they must, of course, be written, because they do not exist as fixed principles, or laws in nature.

†

The objections made to natural law, on the ground of obscurity, are wholly unfounded. It is true, it must be learned, like any other science, but it is equally true, that it is very easily learned. Although as illimitable in its applications as the infinite relations of men to each other, it is, nevertheless, made up of simple elementary principles, of the truth and justice of which every ordinary mind has an almost intuitive perception. It is the science of justice,—and almost all men have the same perceptions of what constitutes justice, or of what justice requires, when they understand alike the facts from which their inferences are to be drawn. Men living in contact with each other, and having intercourse together, cannot avoid learning natural law, to a very great extent, even if they would. The dealings of men with men, their separate possessions, and their individual wants, are continually forcing upon their minds the questions,—Is this act just? or is it unjust? Is this thing mine? or is it his? And these are questions of natural law; questions, which, in regard to the great mass of cases, are answered alike by the human mind everywhere.

Children learn many principles of natural law at a very early age. For example: they learn that when one child has picked up an apple or a flower, it is his, and that his associates must not take it from him against his will. They also learn that if he voluntarily exchange his apple or flower with a playmate, for some other article of desire, he has thereby surrendered his right to it, and must not reclaim it. These are fundamental principles of natural law, which govern most of the greatest interests of individuals and society; yet, children learn them earlier than they learn that three and three are six, or five and five, ten. Talk of enacting natural law by statute, that it may be known! It would hardly be extravagant to say, that, in nine cases in ten, men learn it before they have learned the language by which we describe it. Nevertheless, numerous treatises are written on it, as on other sciences. The decisions of courts, containing their opinions upon the almost endless variety of cases that have come before them, are reported; and these reports are condensed, codified, and digested, so as to give, in a small compass, the facts, and the opinions of the courts as to the law resulting from them. And these treatises, codes, and digests are open to be read of all men. And a man has the same excuse for being ignorant of arithmetic, or any other science, that he has for being ignorant of natural law. He can learn it as well, if he will, without its being enacted, as he could if it were.

If our governments would but themselves adhere to natural law, there would be little occasion to complain of the ignorance of the people in regard to it. The popular ignorance of law is attributable mainly to the innovations that have been made upon natural law by legislation; whereby our system has become an incongruous mixture of natural and statute law, with no uniform principle pervading it. To learn such a system,—if system it can be called, and if learned it can be,—is a matter of very similar difficulty to what it would be to learn a system of mathematics, which should consist of the mathematics of nature, interspersed with such other mathematics as might be created by legislation, in violation of all the natural principles of numbers and quantities.

But whether the difficulties of learning natural law be greater or less than here represented, they exist in the nature of things, and cannot be removed. Legislation, instead of removing, only increases them. This it does by innovating upon natural truths and principles, and introducing jargon and contradiction, in the place of order, analogy, consistency, and uniformity.

Further than this; legislation does not even profess to remove the obscurity of natural law. That is no part of its object. It only professes to substitute something arbitrary in the place of natural law. Legislators generally have the sense to see that legislation will not make natural law any clearer than it is.

Neither is it the object of legislation to establish the authority of natural law. Legislators have the sense to see that they can add nothing to the authority of natural law, and that it will stand on its own authority, unless they overturn it.

The whole object of legislation, excepting that legislation which merely makes regulations, and provides instrumentalities for carrying other laws into effect, is to overturn natural law, and substitute for it the arbitrary will of power. In other words, the whole object of it is to destroy men’s rights. At least, such is its only effect; and its design must be inferred from its effect. Taking all the statutes in the country, there probably is not one in a hundred,—except the auxiliary ones just mentioned,—that does not violate natural law; that does not invade some right or other.

Yet, the advocates of arbitrary legislation are continually practising the fraud of pretending, that unless the legislature make the laws, the laws will not be known. The whole object of the fraud is to secure to the government the authority of making laws that never ought to be known.

*

Kent says, and truly, that “A great proportion of the rules and maxims, which constitute the immeuse code of the common law, grew into use by gradual adoption, and received the sanction of the courts of justice, without any legislative act or interference. It was the application of the dictates of natural justice and cultivated reason to particular cases.” 1 Kent, 470.

*

That is, these decisions are unauthorized, on the supposition that justice is not necessarily law, unless the general requirement, made upon courts by some of our constitutions, that they “administer right and justice,” or some other requirement contained in them equivalent to that, be considered as arbitrarily prescribing these principles as law, and thus authorizing the decisions. But if these requirements, instead of being regarded, as they doubtless ought to be, as an acknowledgment that “right and justice” are law of themselves, be considered only as arbitrarily prescribing them as law, it is at least an admission that the simple words “right and justice” express, with legal accuracy, an infinite variety of fixed, definite, and certain principles, that are properly applicable, as law, to the relations of man with man. But wherever a constitution makes no such requirement, the decisions are illegal, as being made without authority, unless justice itself be law.

*

We add the following authorities to those given in the note to chapter first, on the true nature and definition of law:—Cicero says, “There is a true law, a right reason, conformable to nature, universal, unchangeable, eternal. * * * * This law cannot be contradicted by any other law, and is not liable either to derogation or abrogation. Neither the senate nor the people can give us any dispensation for not obeying this universal law of justice. * * * * It is not one thing at Rome, and another at Athens; one thing to-day, and another to-morrow; but in all times and nations, this universal law must forever reign, eternal and imperishable. * * * * He who obeys it not, flies from himself, and does violence to the very nature of man.”—Cicero’s Republic, Barham’s Translation, B. 3, p. 270.

“This justice is the very foundation of lawful government in political constitutions.”—Same, B. 3, p. 272.

“To secure to the citizens the benefits of an honest and happy life, is the grand object of all political associations.”—Same, B. 4, p. 283.

“There is no employment so essentially royal as the exposition of equity, which comprises the true meaning of all laws.”—Same, B. 5, p. 290.

“According to the Greeks, the name of law implies an equitable distribution of goods; according to the Romans, an equitable discrimination between good and evil. The true definition of law should, however, include both these characteristics. And this being granted as an almost self-evident proposition, the origin of justice is to be sought in the divine law of eternal and immutable morality.”—Cicero’s Treatise on the Laws, Barham’s Translation, B. 1, p. 37.

“Of all the questions which our philosophers argue, there is none which it is more important thoroughly to understand than this,—that man is born for justice, and that law and equity are not a mere establishment of opinion, but an institution of nature.”—Same, B. 1, p. 45.

“Nature hath not merely given us reason, but right reason, and, consequently, that law, which is nothing else than right reason, enjoining what is good, and forbidding what is evil.

“Now, if nature hath given us law, she hath also given us justice; for, as she has bestowed reason on all, she has equally bestowed the sense of justice on all.”—Same, B. 1, p. 48.

“Nature herself is the foundation of justice.”—Same, B. 1, p. 49.

“It is an absurd extravagance, in some philosophers, to assert that all things are necessarily just, which are established by the civil laws and the institutions of the people. Are, then, the laws of tyrants just, simply because they are laws? If the thirty tyrants of Athens imposed certain laws on the Athenians, and if these Athenians were delighted with these tyrannical laws, are we, therefore, bound to consider these laws as just? For my own part, I do not think such laws deserve any greater estimation than that passed during our own interregnum, which ordained that the dictator should be empowered to put to death with impunity, whatever citizens he pleased, without hearing them in their own defence.

“There can be but one essential justice which cements society, and one law which establishes this justice. This law is right reason, which is the true rule of all commandments and prohibitions. Whoever neglects this law, whether written or unwritten, is necessarily unjust and wicked.

“But if justice consist in submission to written laws and customs, and if, as the Epicureans persist in affirming, everything must be measured by utility alone, he who wishes to find an occasion of breaking such laws and customs, will be sure to discover it. So that real justice remains powerless if not supported by nature, and this pretended justice is overturned by that very utility which they call its foundation.”—Same, B. 1, p. 55-6.

“If nature does not ratify law, all virtues lose their sway.”—Same, B. 1, p. 55.

“If the will of the people, the decrees of the senate, the adjudications of magistrates, were sufficient to establish justice, the only question would be how to gain suffrages, and to win over the votes of the majority, in order that corruption and spoliation, and the falsification of wills, should become lawful. But if the opinions and suffrages of foolish men had sufficient weight to outbalance the nature of things, might they not determine among them, that what is essentially bad and pernicious should henceforth pass for good and beneficial? Or why should not a law, able to enforce injustice, take the place of equity? Would not this same law be able to change evil into good, and good into evil?

“As far as we are concerned, we have no other rule capable of distinguishing between a good or a had law, than our natural conscience and reason. These, however, enable us to separate justice from injustice, and to discriminate between the honest and the scandalous. For common sense has impressed in our minds the first principles of things, and has given us a general acquaintance with them, by which we connect with virtue every honorable and excellent quality, and with vice all that is abominable and disgraceful.

“Now we must entirely take leave of our senses, ere we can suppose that law and justice have no foundation in nature, and rely merely on the transient opinions of men.”—Same, B. 1, p. 56-7.

“Whatever is just is always the true law; nor can this true law either be originated or abrogated by any written enactments.”—Same, B. 2, p. 83.

“As the divine mind, or reason, is the supreme law, so it exists in the mind of the sage, so far as it can be perfected in man. With respect to civil laws, which differ in all ages and nations, the name of law belongs to them not so much by right as by the favor of the people. For every law which deserves the name of a law ought to be morally good and laudable, as we might demonstrate by the following arguments. It is clear, that laws were originally made for the security of the people, for the preservation of cities, for the peace and benefit of society. Doubtless, the first legislators persuaded the people that they would write and publish such laws only as should conduce to the general morality and happiness, if they would receive and obey them. Such were the regulations, which being settled and sanctioned, they justly entitled laws. From which, we may reasonably conclude, that those who made unjustifiable and pernicious enactments for the people, counteracted their own promises and professions, and established anything rather than laws, properly so called, since it is evident that the very signification of the word law comprehends the essence and energy of justice and equity.”—Same, B. 2, p. 83-4.

“Marcus. If then, in the majority of nations, many pernicious and mischievous enactments are made, as far removed from the law of justice we have defined as the mutual engagements of robbers, are we bound to call them laws? For as we cannot call the recipes of ignorant empirics, who give poisons instead of medicines, the prescriptions of a physician, we cannot call that the true law of the people, whatever be its name, if it enjoins what is injurious, let the people receive it as they will. For law is the just distinction between right and wrong, conformable to nature, the original and principal regulator of all things, by which the laws of men should be measured, whether they punish the guilty, or protect the innocent.

“Quintus. I quite agree with you, and think that no law but that of justice should either be proclaimed as a law, or enforced as a law.

“Marcus. Then you regard as nullable and voidable, the laws of Titius and Apulcius, because they are unjust.

“Quintus. You may say the same of the laws of Livius.

“Marcus. You are right; and so much the more, since a single vote of the senate would be sufficient to abrogate them in an instant. But that law of justice which I have explained can never be rendered obsolete or inefficacious.

“Quintus. And, therefore, you require those laws of justice the more ardently, because they would be durable and permanent, and would not require those perpetual alterations which all injudicious enactments demand.”—Same, B. 2, p. 85-6.

“Long before positive laws were instituted, the moral relations of justice were absolute and universal.”—Montesquieu.

“All the tranquillity, the happiness, and security of the human race, rests on justice; on the obligation of paying a regard to the rights of others.”—Vattel, B. 2, chap. 12, sec. 163.

“Justice is the basis of all society.”—Vattel, B. 1, chap. 5, sec. 63.

Bacon says, “There are in nature certain fountains of justice, whence all civil laws are derived but as streams.”—Bacon’s Tract on Universal Justice.

“Let no man weakly conceive that just laws, and true policy, have any antipathy, for they are like the spirits and sinews, that one moves with the other.”—Bacon’s Essay on Judicature.

“Justice is the end of government. It is the end of civil society.”—Federalist, No. 51.

About half our state constitutions specially require of our courts that they administer “right and justice” to every man.

The national constitution enumerates among its objects, the establishment of “justice,” and the security of “liberty.”

Judge Story says, “To establish justice must forever be one of the greatest ends of every wise government; and even in arbitrary governments it must, to a great extent, be practised, at least in respect to private persons, as the only security against rebellion, private vengeance, and popular cruelty. But in a free government, it lies at the very basis of all its institutions. Without justice being freely, fully, and impartially administered, neither our persons, nor our rights, nor our property, can be protected.”—1 Story’s Com. on Const., 463.

“It appears in our books, that, in many cases, the common law will control acts of parliament, and sometimes adjudge them to be utterly void; for when an act of parliament is against common right or reason, the common law will control it, and adjudge such act to be void.”—Coke, in Bonham’s case; 4 Coke’s Rep., part 8, p. 118.

Kent also, although he holds that, in England, “the will of the legislature is the supreme law of the land, and demands perfect obedience,” yet says: “But while we admit this conclusion of the English law, we cannot but admire the intrepidity and powerful sense of justice which led Lord Coke, when Chief Justice of the King’s bench, to declare, as he did in Doctor Bonham’s case, that the common law doth control acts of parliament, and adjudges them void when against common right and reason. The same sense of justice and freedom of opinion led Lord Chief Justice Hobart, in Day vs. Savage, to insist that an act of parliament, made against natural equity, as to make a man judge in his own case, was void; and induced Lord Chief Justice Holt to say, in the case of the City of London vs. Wood, that the observation of Lord Coke was not extravagant, but was a very reasonable and true saying.”—1 Kent, 448.

“A treaty made from an unjust and dishonest intention is absolutely null, nobody having a right to engage to do things contrary to the law of nature.”—Vattel, B. 2, chap. 12, sec. 161.

That definition which makes law to be “a rule of civil conduct, prescribed by the supreme power of a state, commanding what its subjects are to do, and prohibiting what they are to forbear,” is manifestly a false definition, inasmuch as it does not include the law of nations. The law of nations has never been “prescribed” by any “supreme power,” that regards the nations as its “subjects,” and rules over them as other governments rule over individuals. Nations acknowledge no such supreme power. The law of nations is, in reality, nothing else than the law of nature, applicable to nations. Yet it is a law which all civilized nations acknowledge, and is all that preserves the peace of nations; and no definition of law that excludes so important a portion of the law of the world, can reasonably be for a moment regarded as true.

*

The objection stated in the text, to our present system of legislation, will not be obviated in principle, by assuming that the male adults are natural guardians of women and children, as they undoubtedly are of children, and perhaps, also, in some sense, of women. But if they are their natural guardians, they are their guardians only for the purpose of protecting their rights; not for the purpose of taking them away. Nevertheless, suppose, for the sake of the argument, that the women and children are really and rightfully represented through the male adults, the objection will still remain that the legislators are chosen by a bare majority of the voters, (representing a bare majority of the people;) and then, a bare majority of the legislators chosen constitute a quorum; and a bare majority of this quorum make the laws. So that, even then, the actual law-makers represent but little more than one eighth of the people.

If the principle is to be acted upon, that the majority have a right to rule arbitrarily, there is no legitimate way of carrying out that principle, but by requiring, either that a majority of the whole people, (or of the voters,) should vote in favor of every separate law, or by requiring entire unanimity in the representative bodies, who actually represent only a majority of the people.

But the principle is utterly false, that a majority, however large, have any right to rule so as to violate the natural rights of any single individual. It is as unjust for millions of men to murder, ravish, enslave, rob, or otherwise injure a single individual, as it is for another single individual to do it.

*

Two things are necessary to a good lawyer. 1. A knowledge of natural law. This knowledge, indispensable to the peace and security of mankind, in their dealings, intercourse, and neighborhood with each other, is possessed, in some good measure, by mankind at large. 2. A knowledge of the rules of interpreting the written law. These are few, simple, natural, reasonable, just, and easily learned. These two branches of knowledge comprise substantially all the science, and all “the reason,” there are in the law. I hope these considerations, in addition to that of understanding the constitution, may induce all, who read any portion of this book, to read with patience this chapter on the rules of interpretation, however tedious it may be.

†

In “The Unconstitutionality of Slavery,” the word laws, in this rule, was printed law, through my inadvertence in copying the rule. The error was not discovered until it was pointed out by Wendell Phillips. I am obliged to him for the correction. A case might he supposed, in which the difference would be important. But I am not aware that the correction affects any of the arguments on which the rule has thus far been, or will hereafter he, brought to bear; because, in construing the constitution by this rule, “the general system of the laws” must be presumed to be “the general system of the laws” authorized by the constitution itself, and not “the general system of the laws” previously prevailing in the country, if the two systems should happen to differ. The constitution being the supreme law, anything in the constitutions or laws of the states to the contrary notwithstanding, those constitutions and laws must be construed with reference to it; instead of its being construed with reference to them, whenever the two may appear to conflict.

Mr. Phillips, however, seems to think the difference important to this discussion; because he says “the general system of the law might refer to the general system of law, as a science;” whereas “the general system of the laws clearly relates to the general spirit of the laws of this nation, which is quite a different thing.” But he here assumes the very point in dispute, viz., that “the general spirit of the constitutional laws of this nation, (which are, in reality, its only laws,) are a very different thing” from “the general system of law, as a science.” So far as they relate to slavery, we claim that all our constitutional laws are perfectly accordant with “the general system of law, as a science,” and this is the question to be determined.

That “the general system of the laws,” authorized by the constitution, and relating to other subjects than slavery, is, for the most part, at least, if not entirely, accordant with “law, as a science,” Mr. Phillips will probably not deny, whatever he may think of those it authorizes in relation to slavery. But the rule of the court forbids that, in the matter of slavery, any construction of the constitution be adopted, at variance with “the general system of the laws” authorized by the constitution, on all other subjects, unless such intention “he expressed with irresistible clearness.” “The general system of the laws,” authorized by the constitution, on all other subjects than slavery, is a very important guide for the interpretation of those clauses that have been claimed for slavery. If this guide be followed, it extinguishes all pretended authority for slavery—instead of supporting it. as Mr. Phillips’ remark would imply.

*

The Supreme Court of the United States say: “The intention of the instrument must prevail; this intention must be collected from its words.”—12 Wheaton, 332.

“The intention of the legislature is to be searched for in the words which the legislature has employed to convey it.”—7 Cranch, 60.

Story says, “We must take it to be true, that the legislature intend precisely what they say.”—2 Story’s Circuit Court Rep., 653.

Rutherforth says, “A promise, or a contract, or a will, gives us a right to whatever the promiser, the contractor, or the testator, designed or intended to make ours. But his design or intention, if it is considered merely as an act of his mind, cannot be known to any one besides himself. When, therefore, we speak of his design or intention as the measure of our claim, we must necessarily be understood to mean the design or intention which he has made known or expressed by some outward mark; because, a design or intention which does not appear, can have no more effect, or can no more produce a claim, than a design or intention which does not exist.

“In like manner, the obligations that are produced by the civil laws of our country arise from the intention of the legislator; not merely as this intention is an act of the mind, but as it is declared or expressed by some outward sign or mark, which makes it known to us. For the intention of the legislator, whilst he keeps it to himself, produces no effect, and is of no more account, than if he had no such intention. Where we have no knowledge, we can be under no obligation. We cannot, therefore, be obliged to comply with his will, where we do not know what his will is. And we can no otherwise know what his will is, than by means of some outward sign or mark, by which this will is expressed or declared.”—Rutherforth, B. 2, chap. 7, p. 307-8.

*

This rule, that forbids us to go beyond the words of the law, must not be understood as conflicting with the one that allows us, in certain cases, to go out of an instrument to find the meaning of the words used in the instrument. We may, in certain cases, (not in all,) and under certain limitations, as will hereafter be explained, go out of an instrument to find the meaning of its words; but we can never go beyond their meaning, when found.

*

Kent says, these rules “have been accumulated by the experience, and ratified by the approbation, of ages.”—1 Kent, 461.

*

Vattel says, “The interpretation of every act, and of every treaty, ought to be made according to certain rules proper to determine the sense of them, such as the parties concerned must naturally have understood when the act was prepared and accepted.

“As these rules are founded on right reason, and are consequently approved and prescribed by the law of nature, every man, every sovereign, is obliged to admit and follow them. If princes were to acknowledge no rules that determined the sense in which the expressions ought to be taken, treaties would be only empty words; nothing could be agreed upon with security, and it would be almost ridiculous to place any dependence on the effect of conventions.”—Vattel, B. 2, chap. 17, sec. 268.

*

Blackstone says, “As to the subject matter, words are always to be understood as having regard thereto.”—1 Blackstone, 60.

“We ought always to give to expressions the sense most suitable to the subject, or to the matter, to which they relate.”—Vattel, B. 2., chap. 17, sec. 280.

Other authorities on this point are given in the note at the end of this chapter.

*

It was, for example, the commonness, or rather the uniformity, with which the word “free” had been used—up to the time the constitution was adopted—to describe persons possessed of political and other legal franchises, as distinguished from persons not possessed of the same franchises, that made the word “free” a technical one in the law.

*

“Terms of art, or technical terms, must be taken according to the acceptation of the learned in each art, trade, and science.”—1 Blackstone, 59.

“When technical words are used, they are to be understood in their technical sense and meaning, unless the contrary clearly appears.”—9 Pickering, 514.

“The words of a statute are to be taken in their natural and ordinary signification and import; and if technical words are used, they are to be taken in a technical sense.”—1 Kent, 461.

Lord Ellenborough says, “An agreement is to be construed according to its sense and meaning, as collected in the first place from the terms used in it, which terms are themselves to be understood in their plain, ordinary, and popular sense, unless they have generally, in respect to the subject matter, as by the known usage of trade or the like, acquired a peculiar sense, distinct from the popular sense of the same words; or unless the context evidently points out that they must, in the particular instance, and in order to effect the immediate intention of the parties to that contract, be understood in some other special and peculiar sense.”—4 East, 135; cited in Chitty on Contracts, 80.

Chitty adds, “The same rule applies to the construction of acts of parliament,” and cites several authorities.

“In the enactment of laws, when terms of art, or peculiar phrases, are made use of, it must be supposed that the legislature have in view the subject matter about which such terms or phrases are commonly employed.”—1 Pickering, 261.

“If a statute make use of a word, the meaning of which is well known at the common law, the word shall be understood in the same sense it was understood at the common law.”—Bacon’s Abridg. Stat., I., 29.

“Technical terms, or terms proper to the arts and sciences, ought commonly to be interpreted according to the definition given of them by the masters of the art, the person versed in the knowledge of the art or science to which the term belongs. I say commonly; for this rule is not so absolute, that we cannot, or even ought not, to deviate from it, when we have good reasons to do it; as, for instance, if it was proved that he who speaks in a treaty, or in any other public piece, did not understand the art or science from which he borrowed the term, that he knows not its force as a technical word: that he has employed it in a vulgar sense, &c.”—Vattel, B. 2, ch. 17, sec. 276.

“In things favorable,” (“things favorable” he defines to mean “things useful and salutary to human society,”) “the terms of art ought to be taken in the fullest extent they are capable of; not only according to common use, but also as technical terms, if he who speaks understands the art to which those terms belong, or if he conducts himself by the advice of men who understand that art.

“But we ought not from this single reason, that a thing is favorable, to take the terms in an improper signification; this is only allowable to be done, to avoid absurdity, injustice, or the nullity of the act, as is practised on every subject. For we ought to take the terms of an act in their proper sense, conformable to custom, at least, if we have not very strong reasons for deviating from it.”—Vattel, B. 2, ch. 17, sec. 307.

“Where technical words are used, the technical meaning is to be applied to them, unless it is repelled by the context. But the same word often possesses a technical and a common sense. In such a case the latter is to be preferred, unless some attendant circumstance points clearly to the former.”—1 Story’s Comm. on Const., 438.

It will be observed that every one of these authorities, except the single one from Story, gives the preference to the technical meaning, over any of the other meanings which a word may have. The latter branch of Story’s rule gives the preference to the other meaning over the technical one.

Admitting, for the sake of the argument, that the latter branch of Story’s rule is correct, still the meaning of the word “free,” in the constitution, is not thereby altered; because his rule admits that if “some attendant circumstance points clearly to the technical meaning,” that meaning is to be adopted. Now every “attendant circumstance” that can legally be taken into consideration, “points clearly to the technical meaning”—and why? Because that meaning alone is consistent with justice, appropriate to the subject matter of the instrument, consistent with the idea that all the parties to the instrument could have reasonably agreed to it, (an essential point, as will hereafter be seen,) consistent with all the general provisions of the instrument. If the other meaning be adopted, all the general provisions of the instrument are either contradicted outright, or have to be taken subject to limitations and exceptions which are nowhere expressed, and which would not only exclude one sixth of “the people of the United States” from the operation of the constitution, established in their name, and for their benefit, but would actually sanction the greatest wrongs against them.

The result, then, is, not merely that “some attendant circumstance,” (although the rule admits that that would be sufficient to turn the scale,) but that every attendant circumstance, points to the technical meaning as the true one.

There is, also, in the same clause with the word “free,” one attendant circumstance which points clearly to the technical meaning; and that is, that “all other persons” than the free, are to be represented and taxed as three fifths units. Now there is no propriety in representing or taxing slaves at all, as persons; but there is a special propriety in representing and taxing aliens as three fifths units, as will more fully appear hereafter.

But, in point of fact, Story’s rule destroys itself, for the two branches of it flatly contradict each other. The first branch says, that “where technical words are used, the technical meaning is to be applied to them, unless it is repelled by the context.” The second branch says, that “the same word often possesses a technical and a common sense. In such case the latter is to be preferred, unless some attendant circumstance points clearly to the former.”

It might be thought, on a careless reading of this rule, that there was no contradiction in it; that the first branch of it referred to a case where a word had only one meaning, and that a technical one; and that the latter branch referred to a case where a word had two or more meanings. But, in reality, there is probably not a single technical word in the language, that has not one or more other meanings beside the technical one; and it seems impossible there should be such a word, because the very meaning of a technical word is a word which, in one profession, art, or trade, is used in a somewhat different sense from what it is out of that profession, art, or trade. But be this as it may, it is evident that the first branch of the rule as much refers to a word having two meanings, as does the latter branch of it; for it says “the technical meaning is to be applied, unless it be repelled by the context.” What is the inference from this proviso? Why, plainly, that if the technical meaning “be repelled by the context,” the other meaning is to be adopted. This of course implies that the word has another meaning which may be adopted if the context require it.

If, then, there are two meanings to the words in each case, the two branches of this rule flatly contradict each other.

The first branch of the rule is given by Story, and is sustained by all the other authorities cited. The second branch is Story’s own, sustained by nobody. The reader will judge which is sustained by reason.

But, in truth, Story has himself laid down the true rule more accurately in another place, as follows:

“Where the words admit of two senses, each of which is conformable to common usage, that sense is to be adopted which, without departing from the literal import of the words, best harmonizes with the nature and objects, the scope and design, of the instrument.”—1 Comm. on Const., 387.

One other authority, which has fallen under my eye, ought to be noticed, lest it be misunderstood. It is this:

“The language of a statute is not to be construed according to technical rules, unless such be the apparent meaning of the legislature.”—14 Mass. Rep., 92.

This language, taken independently of the context, would convey the idea that the adoption of the technical meaning was a matter of indifference; or perhaps even that another meaning was rather to be preferred to the technical one.

But it will be seen on examining the report from which this extract is taken, that the court did not at all intend to deny, but on the contrary to admit, that the general rule was, that the technical meaning was to be preferred; and that they only intended to assert that the rule in favor of the technical meaning was not so imperative that it could not be departed from in a case where “manifest justice” would be promoted by the departure; for they plead, as a justification for departing from the technical meaning, that in that particular case, “manifest justice” will be subserved by a different construction.

Thus have been presented all the authorities on this point, that happen now to be within my knowledge. Many more of the same kind might doubtless be found. I am aware of no contrary one, unless the single one cited from Story be so esteemed.

The conclusion, both from reason and authority, evidently is, that the technical meaning is the preferable one in all cases, except where justice, or some other legal object, will be promoted by adopting some other.

*

Vattel says, “Languages vary incessantly, and the signification and force of words change with time. When an ancient act is to be interpreted, we should know the common use of the terms at the time when it was written.”—B. 2, ch. 17, sec. 272.

He also says, “In the interpretation of treaties, pacts, and promises, we ought not to deviate from the common use of language, at least, if we have not very strong reasons for it.”—Same sec.

*

Contracts made by persons mentally incompetent to make reasonable contracts, are not “obligatory.”

†

Although the greatest discretion that is within the limits of reason, is allowed to parties in making contracts, yet contracts manifestly unreasonable are not held obligatory. And all contracts are unreasonable that purport to surrender one’s natural rights. Also, all contracts that purport to surrender any valuable acquired rights, as property, for example, without any equivalent, or reasonable motive.

*

Vattel says, “When the subject relates to things favorable”—(in sec. 302, he defines “things favorable” to be things “useful and salutary to human society,”)—“we ought to give the terms all the extent they are capable of in common use; and if a term has many significations, the most extensive ought to be preferred.”—B. 2, ch. 17, sec. 307.

“In relation to things favorable, the most extensive signification of the terms is more agreeable to equity than their confined signification.”—Same.

“We should, in relation to things odious,”—(in sec. 302, he defines “as odious, everything that, in its own nature, is rather hurtful than of use to the human race,”)—“take the terms in the most confined sense, and even, to a certain degree, may admit the figurative, to remove the burdensome consequences of the proper and literal sense, or what it contains that is odious.”—Same, sec. 308.

*

Story says, “Who, then, are the parties to this contract? * * * Let the instrument answer for itself. The people of the United States are the parties to the constitution.”—1 Story’s Comm. on Const., p. 355.

The supreme court of the United States says, “The government (of the U. S.) proceeds directly from the people; Is ‘ordained and established’ in the name of the people.”—4 Wheaton, 403.

“The government of the Union is, emphatically and truly, a government of the people; and in form and in substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit.”—4 Wheaton, 404, 405.

“The constitution of the United States was ordained and established, not by the United States in their sovereign capacities, but emphatically, as the preamble of the constitution declares, by the people of the United States.”—1 Wheaton, 324.

Story, commenting upon the words “We the people of the United States,” says, “We have the strongest assurances that this preamble was not adopted as a mere formulary; but as a solemn promulgation of a fundamental fact, vital to the character and operations of the government. The obvious object was to substitute a government of the people for a confederacy of states.”—1 Comm., p. 446.

Also, “The convention determined that the fahric of American empire ought to rest, and should rest, on the solid basis of the consent of the people. The streams of national power ought to flow, and should flow, immediately from the highes original fountain of all legitimate authority. * * * And the uniform doctrine of the highest judicial authority has accordingly been, that it was the act of the people, and not the act of the states; and that it bound the latter as subordinate to the people.”—1 Story’s Comm., p. 447.

Kent says, “The government of the United States was erected by the free voice and the joint will of the people of America, for their common defence and general welfare.”—1 Kent, 189.

Chief Justice Jay said, “Every state constitution is a compact, made by and between the citizens of the state to govern themselves in a certain manner; and the constitution of the United States is likewise a compact, made by the people of the United States to govern themselves, as to general objects, in a certain manner.”—2 Dallas, 419; cited by Story, 1 Comm., p. 317.

Mr. Webster says, “It is the people’s constitution, the people’s government; made for the people; made by the people; and answerable to the people. The people of the United States have declared that this constitution shall be the supreme law. We must either admit the proposition, or dispute their authority. * * * We are all agents of the same supreme power, the people. The general government and the state governments derive their authority from the same source.”—Webster’s Speeches, vol. 1, p. 410.

Also, “I hold it to be a popular government, erected by the people; those who administer it, responsible to the people; and itself capable of being amended and modified, just as the people choose it should be. It is as popular, just as truly emanating from the people, as the state governments. It is created for one purpose; the state governments for another. It has its own powers; they have theirs.”—Same, p. 418.

Also, “This government is the independent offspring of the popular will.”—Same, 419.

If the constitution were not established by “the people,” there is no information given in the constitution, as to whom it was established by. We must, of necessity, therefore, accept its own declaration, that it was established by the people. And if we accept its declaration that it was established by “the people,” we must also accept its virtual declaration that it was established by the whole people, for it gives no information of its being established by one portion of the people, any more than by another. No separation can therefore be made between different portions of the people.

*

Page 62, Second Edition.

†

By Wendell Phillips.

*

Story says, “The importance of examining the preamble, for the purpose of expounding the language of a statute, has been long felt, and universally conceded in all juridical discussions. It is an admitted maxim in the ordinary course of the administration of justice, that the preamble of a statute is a key to open the mind of the makers, as to the mischiefs which are to be remedied, and the objects which are to be accomplished by the provisions of the statute. We find it laid down in some of our earliest authorities in the common law, and civilians are accustomed to a similar expression, cessante legis præmio, cessat et ipsa lex. (The preamble of the law ceasing, the law itself also ceases.) Probably it has a foundation in the exposition of every code of written law, from the universal principle of interpretation, that the will and intention of the legislature is to be regarded and followed. It is properly resorted to where doubts or ambiguities arise upon the words of the enacting part; for if they are clear and unambiguous, there seems little room for interpretation, except in cases leading to an absurdity, or to a direct overthrow of the intention expressed in the preamble.

“There does not seem any reason why, in a fundamental law or constitution of government, an equal attention should not be given to the intention of the framers, as expressed in the preamble. And accordingly we find that it has been constantly referred to by statesmen and jurists to aid them in the exposition of its provisions.”—1 Story’s Comm. on Const., p. 443-4.

Story also says, “Its true office is to expound the nature, and extent, and application of the powers actually conferred by the constitution, and not substantively to create them.”—Same, 445.

“Though the preamble cannot control the enacting part of a statute which is expressed in clear and unambiguous terms, yet, if any doubt arise on the words of the enacting part, the preamble may be resorted to, to explain it.”—7 Bacon’s Abr., 435, note. 4 Term Rep., 793. 13 Vesey, 36. 15 Johnson, N. Y. Rep., 116.

“A statute made pro bono publico (for the public good) shall be construed in such manner that it may as far as possible attain the end proposed.”—7 Bacon’s Abr., 461.

The constitution of the United States avows itself to be established for the public good—that is, for the good of “the people of the United States”—to establish justice and secure the blessings of liberty to themselves and their posterity. It must of course “be construed in such manner that it may, as far as possible, attain that end.”

Story says, “Was it not framed for the good of the people, and by the people?”—1 Story’s Comm., 394.

Chief Justice Jay dwells at length upon the authority of the preamble, as a guide for the interpretation of the constitution.—2 Dallas, 419. Also Justice Story, in his Commentaries on the Constitution, vol. 1, book 3, ch. 6.

*

2 Cranch, 64.

†

The Supreme Court of Mississippi say, referring to the claim of freedom, set up before it, “Is it not an unquestioned rule that, in matters of doubt, courts must lean in favorem vitæ et libertatis?” (in favor of life and liberty.)—Harvey vs. Decker, Walker’s Mississippi Reports, 36.

I cite this authority from Mr. Chase’s argument in the Van Zandt case.

*

This rule is fairly applicable to the word free. The sense correlative with aliens is a sense appropriate to the subject matter of the instrument; it accurately and properly describes a class of persons, which the constitution presumes would exist under it; it was, at the time, the received and technical sense of the word in all instruments of a similar character, and therefore its presumptive sense in the constitution; it is consistent with intentions reasonably attributable to all the parties to the constitution; it is consistent with natural right, with the preamble, the declared purpose of the constitution, and with the general system of the laws established by the constitution. Its legal meaning, in the constitution, was therefore plain, manifest, palpable, and, at the time of its adoption, had no need of interprelation. It needs interpretation now, only to expose the fraudulent interpretation of the past; and because, in pursuance of that fraudulent interpretation, usage has now somewhat changed the received meaning of the word.

*

“Story says, “Are we at liberty, upon any principles of reason or common sense, to adopt a restrictive meaning which will defeat an avowed object of the constitution, when another equally natural, and more appropriate to the subject, is before us?”—1 Story’s Comm., p. 445.

Dane says, “With regard to the different parts of a statute, there is one general rule of construction; that is, the construction of each and every part must be made on a full view of the whole statute; and every part must have force and effect, if possible; for the meaning of every part is found in its connection with other parts.”—6 Dane, 598.

Vattel says, “Expressions have a force, and sometimes even an entirely different signification, according to the occasion, their connection, and their relation to other words. The connection and train of the discourse is also another source of interpretation. We ought to consider the whole discourse together, in order perfectly to conceive the sense of it, and to give to each expression, not so much the signification it may receive in itself, as that it ought to have from the thread and spirit of the discourse. This is the maxim of the Roman law, Incivile est, nisi tota lege perspecta, una aliqua particula ejus proposita, judicare, vel respondere.” (It is improper to judge of, or answer to, any one particular proposed in a law, unless the whole law be thoroughly examined.)—B. 2, ch. 17, sec. 285.

Also, “The connection and relation of things themselves, serve also to discover and establish the true sense of a treaty, or of any other piece. The interpretation ought to be made in such a manner that all the parts appear consonant to each other, that what follows agree with what went before; at least, if it do not manifestly appear, that, by the last clauses, something is changed that went before.”—Same, sec. 286.

The way the advocates of slavery proceed in interpreting the constitution, is this. Instead of judging of the meaning of the word free by its connection with the rest of the instrument, they first separate that word entirely from all the rest of the instrument; then, contrary to all legal rules, give it the worst meaning it is under any circumstances capable of; then bring it back into the instrument; make it the ruling word of the instrument; and finally cut down all the rest of the instrument so as to make it conform to the meaning thus arbitrarily and illegally given to this one word free.

*

No statute shall be construed in such manner as to be inconvenient, or against reason.”—7 Bacon’s Abridg., 465.

“Where the construction of a statute is doubtful, an argument from convenience will have weight.”—3 Mass., 221.

Ch. J. Shaw says, “The argument from inconvenience may have considerable weight upon a question of construction, where the language is doubtful; it is not to be presumed, upon doubtful language, that the legislature intended to establish a rule of action, which would be attended with inconvenience.”—11 Pickering, 490.

Ch. J. Abbott says, “An exposition of these statutes, pregnant with so much inconvenience, ought not to be made, if they will admit of any other reasonable construction.”—3 Barnwell, & A, 271.

“The argument from inconvenience is very forcible in the law, as often hath been observed.”—Coke Lit., 383, a. note.

*

The Supreme Court United States say: “It is undoubtedly a well-established principle in the exposition of statutes, that every part is to be considered, and the intention of the legislature to be extracted from the whole. It is also true, that where great inconvenience will result from a particular construction, that construction is to be avoided, unless the meaning of the legislature be plain, in which case it must be obeyed.”—2 Cranch, 358.

“The natural import of the words of any legislative act, according to the common use of them, when applied to the subject matter of the act, is to be considered as expressing the intention of the legislature; unless the intention, so resulting from the ordinary import of the words, be repugnant to sound, acknowledged principles of national policy. And if that intention be repugnant to such principles of national policy, then the import of the words ought to be enlarged or restrained, so that it may comport with those principles, unless the intention of the legislature be clearly and manifestly repugnant to them.”—Opinion of the Justices, including Parsons; 7 Mass., 523.

*

There is one short and decisive answer to all the pretence that the slaveholders cannot be presumed to have agreed to the constitution, if it be inconsistent with slavery; and that is, that if the slaveholders cannot be presumed to have agreed to it, then they, and not the slaves, must be presumed to have been no parties to it, and must therefore be excluded from all rights in it. The slaves can certainly be presumed to have agreed to it, if it gives them liberty. And the instrument must be presumed to have been made by and for those who could reasonably agree to it. If, therefore, any body can be excluded from all rights in it, on the ground that they cannot be presumed to have agreed to such an instrument as it really is, it must be the slaveholders themselves. Independently of this presumption, there is just as much authority, in the constitution itself, for excluding slaveholders, as for excluding the slaves, from all rights in it. And as the slaves are some ten or fifteen times more numerous than the slaveholders, it is ten or fifteen times more important, on legal principles, that they be included among the parties to the constitution, than that the slaveholders should be.

*

In case Ex parte Bollman and Swartout, Justice Johnson, of the Sup. Court U. S., said,—

“I am far, very far, from denying the general authority of adjudications. Uniformity in decisions is often as important as their abstract justice. (By no means.) But I deny that a court is precluded from the right, or exempted from the necessity, of examining into the correctness or consistency of its decisions, or those of any other tribunal. If I need precedent to support me in this doctrine, I will cite the example of this court, (Sup. Court U. S.) which, in the case of the United States vs. Moore, February, 1805, acknowledged that in the case of the United States vs. Sims, February, 1803, it had exercised a jurisdiction it did not possess. Strange indeed would be the doctrine that an inadvertency, once committed by a court, shall ever after impose on it the necessity of persisting in its error. A case that cannot be tested by principle is not law, and in a thousand instances have such cases been declared so by courts of justice.”—4 Cranch, 103.

“Nullius hominis authoritas tantum apud vos valere debet, ut meliora non sequeremur si quis attulerit.” (The authority of no man ought to weigh so much with us, that if any one has offered anything better, we may not follow it.)—Coke Lit., 383, a. note.

*

In Vaughn’s Reports, p. 169, 70, the court say,—

“The second objection is, that the king’s officers by usage have had in several kings’ times the duties of tonnage and poundage from wrecks.

“1. We desired to see ancient precedents of that usage, but could see but one in the time of King James, and some in the time of the last king; which are so new that they are not considerable, (not worthy to be considered.)

“2. Where the penning of a statute is dubious, long usage is a just medium to expound it by; for jus et norma loquendi (the rule and law of speech) is governed by usage. And the meaning of things spoken or written must be, as it hath constantly been received to be by common acceptation.

“But if usage hath been against the obvious meaning of an act of parliament, by the vulgar and common acceptation of the words, then it is rather an oppression of those concerned, than an exposition of the act, especially as the usage may be circumstanced.

“As, for instance, the customers seize a man’s goods, under pretence of a duty against law, and thereby deprive him of the use of his goods, until he regains them by law, which must be by engaging in a suit with the king, rather than do so he is content to pay what is demanded for the king. By this usage all the goods in the land may be charged with the duties of tonnage and poundage; for when the concern is not great, most men (if put to it) will rather pay a little wrongfully, than free themselves from it overchargeably.

“And in the present case, the genuine meaning of the words and purpose of the act, is not according to the pretended usage, but against it, as hath been shewed; therefore usage in this case weighs not.”

*

The Supreme Court United States say, “The intention of the legislature is to be searched for in the words which the legislature has employed to convey it.”—7 Cranch, 60.

Also, “The intention of the instrument (the constitution) must prevail; this intention must be collected from its words.”—12 Wheaton, 332.

†

Story says, “We must take it to be true, that the legislature intend precisely what they say.”—1 Story’s C. C. Rep., 653.

Vattel says, “Much less is it permitted, when the author of a piece has himself there made known his reasons and motives, to attribute to him some secret reason, as the foundation to interpret the piece contrary to the natural sense of the terms. Though he really had the view attributed to him, if he has concealed it, and made known others, the interpretation can only be founded upon these, (which he has made known,) and not upon the views which the author has not expressed; we take for true against him what he has sufficiently declared.”—B. 2, ch. 17, sec. 287.

Rutherforth says, “The safest ground for us to stand upon, is what the writer himself affords us; when the legislator himself has plainly declared the reason (intention) of the law in the body of it, we may argue from thence with certainty.”—B. 2, ch. 7, p. 330.

Rutherforth also says, “A promise, or contract, or a will, gives us a right to whatever the promiser, the contractor, or the testator, designed or intended to make ours. But his design or intention, if it is considered merely as an act of his mind, cannot be known to any one besides himself. When, therefore, we speak of his design or intention as the measure of our claim, we must necessarily be understood to mean the design or intention which he has made known or expressed by some outward mark; because, a design or intention which does not appear, can have no more effect, or can no more produce a claim, than a design or intention which does not exist.

“In like manner, the obligations that are produced by the civil laws of our country arise from the intention of the legislator; not merely as this intention is an act of the mind, but as it is declared or expressed by some outward sign or mark, which makes it known to us. For the intention of the legislator, whilst he keeps it to himself, produces no effect, and is of no more account than if he had no such intention. Where we have no knowledge, we can be under no obligation. We cannot, therefore, be obliged to comply with his will, where we do not know what his will is. And we can no otherwise know what his will is, than by means of some outward sign or mark, by which this will is expressed or declared.”—B. 2, chap. 7, p. 307.

*

All rules of construction apply only to words that need to be construed; to those which are capable of more than one meaning, or of a more extended or restricted sense, and whose meanings in the law are therefore uncertain. Those words whose meanings are plain, certain, and precise, are not allowed to be construed at all. It is a fundamental maxim, as before cited, (under rule thirteenth,) that it is not admissible to interpret what needs no interpretation.

†

Vattel says, “If he who has expressed himself in an obscure or equivocal manner, has spoken elsewhere more clearly on the same subject, he is the best interpreter of himself. We ought to interpret his obscure or vague expressions in such a manner that they may agree with those terms that are clear and without ambiguity, which he has used elsewhere, either in the same treaty or in some other of the like kind.”—B. 2, ch. 17, sec. 284.

And this is an universal rule with courts, to interpret the ambiguous words of an instrument by those that are explicit.

*

It will not do to take these, or any other rules, on trust from courts; for courts, although they more generally disregard, or keep out of sight, all rules which stand in the way of any unlawful decisions which they are determined to make, can yet not very unfrequently lay down false rules to accomplish their purposes. For these reasons, only those of their rules that are plainly adapted to promote certainty and justice, are to be relied on.

*

Story says, “In coustruing the constitution of the United States, we are, in the first instance, to consider what are its nature and objects, its scope and design, as apparent from the structure of the instrument, viewed as a whole, and also viewed in its component parts. Where its words are plain, clear, and determinate, they require no interpretation; and it should, therefore, be admitted, if at all, with great caution, and only from necessity, either to escape some absurd consequence, or to guard against some fatal evil. Where the words admit of two senses, each of which is conformable to common usage, that sense is to be adopted, which, without departing from the literal import of the words, best harmonizes with the nature and objects, the scope and designs, of the instrument. Where the words are unambiguous, but the provision may cover more or less ground, according to the intention, which is subject to conjecture; or where it may include in its general terms more or less than might seem dictated by the general design, as that may be gathered from other parts of the instrument, there is much more room for controversy; and, the argument from inconvenience will probably have different influences upon different minds. Whenever such questions arise, they will probably be settled, each upon its own peculiar grounds; and whenever it is a question of power, it should be approached with infinite caution, and affirmed only upon the most persuasive reasons. In examining the constitution, the antecedent situation of the country, and its institutions, the existence and operations of the state governments, the powers and operations of the confederation, in short, all the circumstances which had a tendency to produce or to obstruct its formation and ratification, deserve a careful attention. Much, also, may be gathered from contemporary history, and contemporary interpretation, to aid us in just conclusions.

“It is obvious, however, that contemporary interpretation must be resorted to with much qualification and reserve. In the first place, the private interpretation of any particular man, or body of men, must manifestly be open to much observation. The constitution was adopted by the people of the United States; and it was submitted to the whole, upon a just survey of its provisions, as they stood in the text itself. In different states, and in different conventions, different and very opposite objections are known to have prevailed; and might well be presumed to prevail. Opposite interpretations, and different explanations of different provisions, may well be presumed to have been presented in different bodies, to remove local objections, or to win local favor. And there can be no certainty, either that the different state conventions, in ratifying the constitution, gave the same uniform interpretation to its language, or that, even in a single state convention, the same reasoning prevailed, with a majority, much less with the whole, of the supporters of it. In the interpretation of a state statute, no man is insensible of the extreme danger of resorting to the opinions of those who framed it, or those who passed it. Its terms may have differently impressed different minds. Some may have implied limitations and objects, which others would have rejected. Some may have taken a cursory view of its enactments, and others have studied them with profound attention. Some may have been governed by a temporary interest or excitement, and have acted upon that exposition which most favored their present views. Others may have seen, lurking beneath its text, what commended it to their judgment, against even present interests. Some may have interpreted its language strictly and closely; others, from a different habit of thinking, may have given it a large and liberal meaning. It is not to be presumed, that, even in the convention which framed the constitution, from the causes above mentioned, and other causes, the clauses were always understood in the same sense, or had precisely the same extent of operation. Every member necessarily judged for himself; and the judgment of no one could, or ought to be, conclusive upon that of others. The known diversity of construction of different parts of it, as well as the mass of its powers, in the different state conventions; the total silence upon many objections, which have since been started; and the strong reliance upon others, which have since been universally abandoned, add weight to these suggestions. Nothing but the text itself was adopted by the people. And it would certainly be a most extravagant doctrine to give to any commentary then made, and, a fortiori, to any commentary since made under a very different posture of feeling and opinion, an authority which should operate an absolute limit upon the text, or should supersede its natural and just construction.

“Contemporary construction is properly resorted to, to illustrate and confirm the text, to explain a doubtful phrase, or to expound an obscure clause; and in proportion to the uniformity and universality of that construction, and the known ability and talents of those by whom it was given, is the credit to which it is entitled. It can never abrogate the text; it can never fritter away its obvious sense; it can never narrow down its true limitations; it can never enlarge its natural boundaries. We shall have abundant reason hereafter to observe, when we enter upon the analysis of the particular clauses of the constitution, how many loose interpretations and plausible conjectures were hazarded at an early period, which have since silently died away, and are now retained in no living memory, as a topic either of praise or blame, of alarm or of congratulation.—1 Story’s Com. on the Const. pp. 387 to 392.

Story makes the following caustic comments upon Mr. Jefferson’s rules of interpretation. They are particularly worthy the attention of those modern commentators, who construe the constitution to make it sanction slavery. He says,—

“Mr. Jefferson has laid down two rules, which he deems perfect canons for the interpretation of the constitution.* The first is, ‘The capital and leading object of the constitution was, to leave with the states all authorities which respected their own citizens only, and to transfer to the United States those which respected citizens of foreign or other states; to make us several as to ourselves, but one as to all others. In the latter case, then, constructions should lean to the general jurisdiction, if the words will bear it; and in favor of the states in the former, if possible to be so construed.’ Now, the very theory on which this canon is founded, is contradicted by the provisions of the constitution itself. In many instances, authorities and powers are given, which respect citizens of the respective states, without reference to foreigners, or the citizens of other states.† But if this general theory were true, it would furnish no just rule of interpretation, since a particular clause might form an exception to it; and, indeed, every clause ought, at all events, to be construed according to its fair intent and objects, as disclosed in its language. What sort of rule is that, which, without regard to the intent or objects of a particular clause, insists that it shall, if possible, (not if reasonable,) be construed in favor of the states, simply because it respects their citizens? The second canon is: ‘On every question of construction (we should) carry ourselves back to the time when the constitution was adopted; recollect the spirit manifested in the debates; and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.’ Now, who does not see the utter looseness and incoherence of this canon? How are we to know what was thought of particular clauses of the constitution at the time of its adoption? In many cases, no printed debates give any account of any construction; and where any is given, different persons held different doctrines. Whose is to prevail? Besides, of all the state conventions, the debates of five only are preserved, and these very imperfectly. What is to be done as to the other eight states? What is to be done as to the eleven new states, which have come into the Union under constructions, which have been established against what some persons may deem the meaning of the framers of it? How are we to arrive at what is the most probable meaning? Are Mr. Hamilton, and Mr. Madison, and Mr. Jay, the expounders in the Federalist, to be followed? Or are others of a different opinion to guide us? Are we to be governed by the opinions of a few, now dead, who have left them on record? Or by those of a few, now living, simply because they were actors in those days, (constituting not one in a thousand of those who were called to deliberate upon the constitution, and not one in ten thousand of those who were in favor or against it, among the people)? Or are we to be governed by the opinions of those who constituted a majority of those who were called to act on that occasion, either as framers of, or voters upon, the constitution? If by the latter, in what manner can we know those opinions? Are we to be governed by the sense of a majority of a particular state, or of all of the United States? If so, how are we to ascertain what that sense was? Is the sense of the constitution to be ascertained, not by its own text, but by the ‘probable meaning,’ to be gathered by conjectures from scattered documents, from private papers, from the table-talk of some statesmen, or the jealous exggerations of others? Is the constitution of the United States to be the only instrument, which is not to be interpreted by what is written, but by probable guesses, aside from the text? What would be said of interpreting a statute of a state legislature, by endeavoring to find out, from private sources, the objects and opinions of every member; how every one thought; what he wished; how he interpreted it? Suppose different persons had different opinions, what is to be done? Suppose different persons are not agreed as to ‘the probable meaning’ of the framers or of the people, what interpretation is to followed? These, and many questions of the same sort, might be asked. It is obvious, that there can be no security to the people in any constitution of government, if they are not to judge of it by the fair meaning of the words of the text; but the words are to be bent and broken by the ‘probable meaning’ of persons, whom they never knew, and whose opinions, and means of information, may be no better than their own? The people adopted the constitution, according to the words of the text in their reasonable interpretation, and not according to the private interpretation of any particular men. The opinions of the latter may sometimes aid us in arriving at just results, but they can never be conclusive. The Federalist denied that the president could remove a public officer without the consent of the senate. The first congress affirmed his right by a mere majority. Which is to be followed?”—1 Story’s Com. on Const., 390, 392, note.

Story says, also, Words, from the necessary imperfection of all human language, acquire different shades of meaning, each of which is equally appropriate, and equally legitimate; and each of which recedes in a wider or narrower degree from the others, according to circumstances; and each of which receives from its general use some indefiniteness and obscurity, as to its exact boundary and extent. We are, indeed, often driven to multiply commentaries from the vagueness of words in themselves; and, perhaps, still more often from the different manner in which different minds are accustomed to employ them. They expand or contract, not only from the conventional modifications introduced by the changes of society, but also from the more loose or more exact uses, to which men of different talents, acquirements, and tastes, from choice or necessity, apply them. No person can fail to remark the gradual deflections in the meaning of words, from one age to another, and so constantly is this process going on, that the daily language of life, in one generation, sometimes requires the aid of a glossary in another. It has been justly remarked, that no language is so copious, as to supply words and phrases for every complex idea; or so correct, as not to include many equivocally denoting different ideas. Hence it must happen, that, however accurately objects may be discriminated in themselves, and however accurately the discrimination may be considered, the definition of them may be rendered inaccurate by the inaccuracy of the terms in which it is delivered. We must resort, then, to the context, and shape the particular meaning so as to make it fit that of the connecting words, and agree with the subject matter.”—1 Story’s Com., 437.

Ch. J. Marshall, speaking for the Sup. Court United States, says, “The spirit of an instrument, especially of a constitution, is to be respected not less than its letter, yet the spirit is to be collected chiefly from its words. It would be dangerous in the extreme to infer from extrinsic circumstances, that a case for which the words of an instrument expressly provide, shall be exempted from its operation. Where words conflict with each other, where the different clauses of an instrument bear upon each other, and would be inconsistent unless the natural and common import of words be varied, construction becomes necessary, and a departure from the obvious meaning of words is justifiable.”—4 Whealon, 202.

Ch. J. Taney, giving the opinion of the Supreme Court of the United States, says, “In expounding this law, the judgment of the court cannot, in any degree, be influenced by the construction placed upon it by individual members of congress in the debate which took place on its passage, nor by the motives or reasons assigned by them for supporting or opposing amendments that were offered. The law, as it is passed, is the will of the majority of both houses, and the only mode in which that will is spoken, is in the act itself; and we must gather their intention from the language there used, comparing it, when any ambiguity exists, with the laws upon the same subject, and looking, if necessary, to the public history of the times in which it was passed.”—3 Howard, 24.

Coke says, “The words of an act of parliament must be taken in a lawful and rightful sense.”—Coke Lit., 381, b.

Also, “The surest construction of a statute is by the rule and reason of the common law.”—Same, 272, b.

“Acts of parliament are to be so construed as no man that is innocent, or free from injury of wrong, be by a literal construction punished or endamaged.”—Same, 360, a.

“When the construction of any act is left to the law, the law, which abhorreth injury and wrong, will never so construe it, as it shall work a wrong.”—Same, 42, a.

“It is a maxim in law, that the construction of a law shall not work an injury.” Same, 183, a.

“The rehearsal or preamble of the statute is a good mean to find out the meaning of the statute, and as it were a key to open the understanding thereof.”—Same, 70, a.

“It is the most natural and genuine exposition of a statute to construe one part of the statute by another part of the same statute, for that best expresseth the meaning of the makers.”—Same, 381, b.

“If the words of a statute are obscure, they shall be expounded most strongly for the public good.”—Plowden, 82.

“It is most reasonable to expound the words which seem contrary to reason, according to good reason and equity.”—Same, 109.

“Such construction ought to be made of acts of parliament as may best stand with equity and reason, and mostly avoid rigor and mischief.”—Same, 364.

“The judges took the common law for their guide, which is a master in exposition, the reason whereof they pursued as near as they could.”—Same, 364.

“Words of a statute ought not to be interpreted to destroy natural justice.”—Viner’s Abridg. Constr. of Stat., sec. 156.

Blackstone’s rules of interpretation are as follows:

“The fairest and most rational method to interpret the will of the legislator, is by exploring his intentions at the time when the law was made, by signs the most natural and probable. And these signs are either the words, the context, the subject matter, the effects and consequence, or the spirit or reason of the law. Let us take a view of them all.

“1. Words are generally to be understood in their usual and most known significations; not so much regarding the propriety of grammar as their general and popular use.” * * *

“Terms of art, or technical terms, must be taken according to the acceptation of the learned in each art, trade, or science.” * * *

“2. If words happen to be still dubious, we may establish their meaning by the context; with which it may be of singular use to compare a word or sentence, whenever they are ambiguous, equivocal, or intricate. Thus the proem, or preamble, is often called in to help the construction of an act of parliament.” * * *

“3. As to the subject matter, words are always to be understood as having regard thereto; for that is always supposed to be in the eye of the legislator, and all his expressions directed to that end.” * * *

“4. As to the effects and consequence, the rule is, that where words bear either none, or a very absurd signification, if literally understood, we must a little deviate from the received sense of them.” * * *

“5. But lastly, the most universal and effectual way of discerning the true meaning of a law, where the words are dubious, is by considering the reason and spirit of it; or the cause which moved the legislator to enact it. For when this reason ceases, the law itself ought likewise to cease with it.” * * *—1 Blackstone, 59, 60.

Blackstone (1, 59) also lays it down as being “Contrary to all true forms of reasoning, to argue from particulars to generals.” Yet this is the universal mode of reasoning among those who hold slavery to be constitutional. Instead of reasoning from generals to particulars, they reason from particulars to generals. For example. Instead of judging of the word “free” by reference to the rest of the instrument, they judge of the whole instrument by reference to the word “free.” They first fix the meaning of the word “free,” by assuming for it, in defiance of the rest of the instrument, and of all legal rules, the worst possible meaning of which it is capable, simply on the illegal grounds that the slaveholders cannot be presumed to have been williag to do justice, but that all the rest of the country can be presumed willing to do injustice; and they then limit, bend, and break all the rest of the instrument to make it conform to that meaning. It is only by such process as this that the constitution is ever made to sanction slavery.

“The constitution is law, the people having been the legislators. And the several statutes of the commonwealth, enacted pursuant to the constitution, are law, the senators and representatives being the legislators. But the provisions of the constitution, and of any statute, are the intentions of the legislature thereby manifested. These ententions are to be ascertained by a reasonable construction, resulting from the application of correct maxims, generally acknowledged and received.

“Two of these maxims we will mention. That the natural import of the words of any legislative act, according to the common use of them, when applied to the subject matter of the act, is to be considered as expressing the intention of the legislature unless the intention, so resulting from the ordinary import of the words, be repugnant to sound, acknowledged principles of national policy. And if that intention be repugnant to such principles of national policy, then the import of the words ought to be enlarged or restrained, so that it may comport with those priu-ciples; unless the intention of the legislature be clearly and manifestly repugnant to them.”—Opinion of the justices, Parsons, Sewall, and Parker, 7 Mass., 524.

Chief Justice Parker says, “I have always understood that it was right and proper to consider the whole of a statute, and the preamble, and the probable intention of the legislature, in order to ascertain the meaning of any particular section; and that this mode of interpretation is justifiable, even where the words of the section itself may be unambiguous. Certainly if one section, however explicit its terms, if taken literally, would contravene the general object of the statute, it should be restrained so as to conform to that object.”—1 Pickering, 258.

“It is unquestionably a well-settled rule of construction, that when words are not precise and clear, such construction will be adopted as shall appear most reasonable, and best suited to accomplish the objects of the statute; and where any particular construction would lead to an absurd consequence, it will be presumed that some exception or qualification was intended by the legislature, to avoid such a conclusion.”—24 Pickering, 370.

“When the meaning of any particular section or clause of a statute is questioned, it is proper, no doubt, to look into the other parts of the statute; otherwise the different sections of the same statute might be so construed as to be repugnant, and the intention of the legislature might be defeated. And if, upon examination, the general meaning and object of the statute should be found inconsistent with the literal import of any particular clause or section, such clause or section must, if possible, be construed according to the spirit of the act.”—1 Pickering, 250.

The Supreme Court of the United States say, “It is undoubtedly a well-established principle in the exposition of statutes, that every part is to be considered, and the intention of the legislature to be extracted from the whole. It is also true that where great inconvenience will result from a particular construction, that construction is to be avoided; unless the meaning of the legislature be plain, in which case it must be obeyed.”—2 Cranch, 358.

“When the words are not explicit, the intention is to be collected from the context, from the occasion and necessity of the law, from the mischief felt, and the remedy in view; and the intention is to be taken or presumed, according to what is consonant to reason and good discretion. These rules, by which the sages of the law, according to Plowden, have ever been guided in seeking for the intention of the legislature, are maxims of sound interpretation, which have been accumulated by the experience, and ratified by the wisdom of ages.”—1 Kent, 61.

Kent declares the rule of the English courts to be this: “They will not readily presume, out of respect and duty to the lawgiver, that any very unjust or absurd consequence was within the contemplation of the law. But if it should be too palpable in its direction to admit of but one construction, there is no doubt, in the English law, as to the binding efficacy of the statute.”—1 Kent, 447.

This rule implies that if a statute be susceptible of more than “one construction,” the just or reasonable one must be preferred to “any very unjust or absurd one.”

Kent also says, “Statutes are likewise to be construed in reference to the principles of the common law;” (which, in vol. 1, p. 470, he describes as being, in great part, but “the dictates of natural justice and cultivated reason;”) “for it is not to be presumed the legislature intended to make any innovation upon the common law, further than the case absolutely required. This has been the language of the courts in every age, and when we consider the constant, vehement, and exalted eulogy which the ancient sages bestowed upon the common law, as the perfection of reason, and the best birthright and noblest inheritance of the subject, we cannot be surprised at the great sanction given to this rule of construction.”—1 Kent, 463.

Rutherforth says, “All civil laws, and all contracts in general, are to be so construed, where the words are of doubtful meaning, as to make them produce no other effect but what is consistent with reason, or with the law of nature.”—B. 2, ch. 7, p. 327.

“Lord Coke has laid it down as a general rale, that where words may have a double intendment, and the one standeth with law and right, and the other is wrongful and against law, the intendment which standeth with law shall be taken.”—Co. Lit., 42, a. 6, 183, a. Cited also in Pothier.

“When the terms of a contract are capable of two significations, we ought to understand them in the sense which is most agreeable to the nature of the contract.”—Pothier on Contracts, part 1, ch. 1, art. 7, rule 3.

The Supreme Court of the United States say, “An act of congress ought never to be construed to violate the law of nations,” (or the law of nature, they might have said, for the same reason, for the two are substantially synonymous in principle,) “if any other possible construction remains.”—2 Cranch, 64.

Parson, Chief Justice, says, “It is always to be presumed that the legislature intend the most beneficial construction of their acts, when the design of them is not apparent.”—4 Mass., 537.

“Statutes are not to be construed as taking away a common law right, unless the intention is manifest.”—4 Mass., 473.

“It is an established rule, that a statute is not to be construed so as to repeal the common law, unless the intent to alter it is clearly expressed.”—9 Pickering, 514.

“Laws are construed strictly to save a right, or avoid a penalty; and liberally to give a remedy, or effect an object declared in the law.”—1 Baldwin, 316.

“Statutes are expounded by the rules and reasons of the common law; and though the words of a statute be general, yet they shall be specially construed to avoid an apparent injury.”—6 Dane, 588.

“This policy, founded in manifest justice, ought to be enforced in this case, if the several laws in the statute-book, or any one of them, will admit of a reasonable construction to this effect.”—14 Mass., 92.

“No statute ought to be so construed as to defeat its own end; nor so as to operate against reason; nor so as to punish or damnify the innocent; nor so as to delay justice.”—6 Dane, 596.

“The best construction of a statute is to construe it as near to the rule and reason of the common law as may be, and by the course which that observes in other cases.”—Bacon’s Abr. Stat., I. 32.

Lord Coke, cited by Chief Justice Abbott, says, “Acts of parliament are to be so construed, as no man that is innocent, or free from injury, or wrong, be by a literal construction punished or endamaged.”—3 Barnwell & A. 271.

“When any words or expressions in a writing are of doubtful meaning, the first rule in mixed interpretation is to give them such a sense as is agreeable to the subject matter of which the writer is treating. For we are sure on the one hand that this subject matter was in his mind, and can on the other hand have no reason for thinking that he intended anything which is different from it, and much less that he intended anything which is inconsistent with it.”—Rutherforth, b. 2, ch. 7, p. 323.

“The interpretation or construction of the constitution is as much a judicial act, and requires the exercise of the same legal discretion, as the interpretation of a law.”—1 Kent, 449.

“But we should particularly regard the famous distinction of things favorable, and things odious.”—Vattel, B. 2, ch. 17, sec. 300.

“The precise point of the will of the legislature, or of the contracting powers, is what ought to be followed; but if their expressions are indeterminate, vague, or susceptible of a more or less extensive sense,—if this precise point of their intention in the particular case in question cannot be discovered and fixed, by other rules of interpretation, it should be presumed, according to the laws of reason and equity.”—Same.

“All the things which, without too much burthening any one person in particular, are useful and salutary to human society, ought to be reckoned among the favorable things. For a nation is already under a natural obligation with respect to things of this nature; so if it has in this respect entered into any particular engagements, we run no risk in giving these engagements the most extensive sense they are capable of receiving. Can we be afraid of doing violence to equity by following the law of nature, and in giving the utmost extent to obligations that are for the common advantage of mankind? Besides, things useful to human society, on this account, tend to the common advantage of the contracting powers, and are consequently favorable. Let us, on the contrary, consider as odious everything that, in its own nature, is rather hurtful than of use to the human race.”—Same, sec. 302.

“When the legislature, or the contracting powers, have not expressed their will in terms that are precise and perfectly determinate, it is to be presumed that they desire what is most equitable.”—Same, sec. 307.

“We favor equity, and fly from what is odious, so far as that may be done without going directly contrary to the tenor of the writing, and without doing violence to terms.”—Same, sec. 308.

Assuming that the preceding principles of interpretation are correct, it may be allowable, on account of the importance of the subject, and the contrary opinions which appear to prevail, to apply them to another clause of the constitution than those claimed for slavery.

The constitution declares that “the congress shall have power to declare war.”

This power, unqualified in its terms, would, if taken literally, and independently of the declared objects of this and all the other powers granted to the government, give congress authority to declare war for any cause whatever, just or unjust, for reasons the most frivolous and wicked, as well as for the most important and necessary purposes of self-preservation. Yet such is not the power that is actually granted. All the principles of interpretation before laid down, requiring a construction consistent with justice, and prohibiting the contrary, limit this power to cases of just war; war that is necessary for the defence and enforcement of rights.

The objects of the powers granted to congress are “to establish justice,” “secure liberty,” “provide for the common defence,” &c.; and the powers are to be construed with reference to the accomplishment of these objects, and are limited by them. Congress, therefore, have no constitutional authority to make wars of aggression and conquest. And all acts of congress, of that nature, are unconstitutional.

Law-books abound with cases in which general words are restrained to such particular meanings as are consistent with justice and reason. And the rule is well established that general words are always to be thus restrained, unless there be something in the context to forbid it.

“A thing which is within the letter of the statute is not within the statute, unless it be within the intention of the makers.”—15 Johnson, 381; 3 Cowen, 92; 1 Blackstone, 60-61; 3 Mass., 540; 5 Mass., 382; 15 Mass., 206; Bac. Abr. Stat., I., 45.

Was it the intent of “the people of the United States” to authorize their government to make wars of aggression and conquest? Their intention must be collected from their words, but their words must always be taken in a sense consistent with justice, and in no other, if the words are capable of a just meaning. “War” may be made for just, and for unjust purposes. But as two conflicting intentions cannot be attributed to the same provision, the just intention must be preferred to the unjust one. The preamble, also, as we have seen, shows the object of this power to be “to secure liberty,” and “provide for the common defence.” A good object, and a sufficient object, being thus apparent, and being also specially declared in the preamble, no other can be attributed, and the power is consequently limited to that object.*

Plowden says, “And the judges of the law in all times past have so far pursued the intent of the makers of statutes, that they have expounded acts, which were general in words, to be but particular, when the intent was particular.”—Plowden, 204.

Vattel says, “We limit a law or a promise contrary to the literal signification of the terms, by regulating our judgment by the reason of that law, or that promise.”—Vattel, B. 2, ch. 17, sec. 292.

Also, “The restrictive interpretation takes place, when a case is presented in which the law or the treaty, according to the rigor of the terms, lead to something unlawful. This exception must then be made, since nobody can promise or ordain what is unlawful. For this reason, though assistance has been promised to an ally in all his wars, no assistance ought to be given him when he undertakes one that is manifestly unjust.”—Same, sec. 293.

Also, “We should, in relation to things odious,” (that is, “everything that in its own nature is rather hurtful than of use to the human race,”) “take the terms in the most confined sense.”—Same, sec. 308.

The Supreme Court of the United States, also, say, “An act of congress,” (and the same reason applies to the constitution,) “ought never to be construed to violate the law of nations, if any other possible construction remains.”—2 Cranch, 64.

To understand the force of this last rule, some definition of the law of nations is necessary. The best general definition of it is, that which considers nations as individuals, and then applies the same principles of natural law to them, that are applicable to individuals. This rule, however, requires to be modified by being made more lenient to nations, in certain cases, than to individuals. For example; the whole people of a nation are not to have war made upon them, for wrongs done by their government, any sooner or further than is necessary to compel them to redress those wrongs as soon as, in the nature of things, they (the people) can do it, by changing, or operating upon their government. The reasons are these: The people, by instituting government, or appointing certain individuals to administer it, do not authorize those individuals to commit any wrongs against foreign nations. They are not, therefore, themselves culpable for those wrongs. When, then, such wrongs are committed, all that the people can be required to do, is that they dismiss the wrong doers from power, and appoint others who will redress the injuries committed. And to do this, the people must be allowed such time as is reasonable and necessary, which will be more or less, according to circumstances. But ample time must be sure to be allowed in all cases, before war against them can be lawful.

2. In controversies as to their respective rights and wrongs, nations are each entitled to longer time for investigating and determining their rights than individuals, because it is not in the nature of things possible that a whole people can investigate such questions with the same promptness that individuals can investigate their respective rights in their private controversies; and a whole people are not to be held liable, by having war made upon them, until they have had ample, or, at least, reasonable, time to investigate the matters in controversy.

3. Nations are entitled to longer delays for fulfilling their contracts, paying their debts, &c., than individuals, because governments, no more than individuals, can be required to perform impossibilities, and a government’s means of paying its debts must be obtained by systematic processes of taxation, which require a longer or shorter time, according to the wealth and resources of the country.

4. But another reason why greater forbearance is due to nations than to individuals, is, that it generally happens that a part only of a nation are disposed to withhold justice, while the rest are willing to do it. Yet if the nation, as a whole, were held responsible to the same rigid rules as an individual, by having war declared on the first want of promptitude in fulfilling their duty, the innocent would be involved in the same punishment with the guilty.

For all these reasons, and some others, great lenity and forbearance in the enforcement of rights is demanded by the law of nations, or by the natural law applicable to nations.

To apply the foregoing principles: If the war in which the United States are now engaged with Mexico, be one, not of defence, but of aggression, on their part, or be made in violation of natural law, it is unconstitutional, and all proceedings had in the prosecution of it are illegal. The enlistments of soldiers for that service are illegal; and the soldiers are not bound by their enlistments. The soldiers legally owe no obedience to their officers. The officers have no legal authority over their soldiers. The oaths of the officers to obey the laws of the United States, while they are in the territory of Mexico, are of no legal obligation. And the officers and soldiers, while in Mexico, are in no way legally amenable to the government or laws of the United States for their conduct. They owe no legal obedience to the orders of the president. They are, in the eye of our own law, mere banditti. They may throw off all allegiance to the government of the United States, turn conquerors on their own account, and it will be no offence against the laws of the United States. The appropriations for carrying on the war in Mexico are illegal, and might, with as much constitutional authority, be made to Mexican brigands, as to our own soldiers. Finally, our soldiers are bound to know our own constitutional law on this point, and to know that they are acting without legal authority. They are, therefore, not entitled to the rights of prisoners of war, in case they should fall into the hands of the Mexican government, but are liable to he treated as robbers and murderers; and our government, in such an event, would have no constitutional right to protect them, by force, from their liability to Mexican laws, for all the crimes they are now committing.

*

4 Jefferson’s Correspondence, 373, 391, 392, 396.

†

4 Jefferson’s Correspondence, 391, 392, 396.

*

Story says, “The true office of the preamble is to expound the nature, and extent, and application of the powers actually conferred by the constitution.”—1 Story’s Com. Const., 445.

*

If the word free were used as the correlative of any other kinds of restraint than slavery, it would not have implied slavery as its correlative, and there would have been no ground for the argument for slavery. On the other hand, if it were used as the correlative of slavery, there was no need of specially excepting from the implication of slavery “those bound to service for a term of years,” for they were known by everybody not to be slaves.

*

By Wendell Phillipe.

*

And in some of the States, as Illinois and Michigan, for example, they are allowed to vote.

The provision in the constitution of the United States, in regard to electors, is this: (art. 1, sec. 2.)

“The House of Representatives shall be composed of members chosen every second year, by the people of the several States,” (not by the citizens of the United States in each State, but by “the people of the several States,”) “and the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislature.”

†

They may be judges, ambassadors, secretaries of the departments, commanders in the army and navy, collectors of revenue, postmasters, &c., equally with the citizens.

‡

For the term alien technically implies exclusion from office, exclusion from the right of suffrage and inability to hold real estate.

*

They are called aliens in this argument, for the want of any other word that will describe them.

*

“Subjects are members of the commonwealth, under the king their head.” Jacob’s, Williams’, and Cunningham’s Law Dictionaries.

†

“All those are natural-born subjects, whose parents, at the time of their birth, were under the actual obedience of our king, and whose place of birth was within his dominions.”—7 Coke’s Rep., p. 18. Bacon’s Abridge., title Alien. Cunningham’s Law Dictionary, title Alien.

‡

“A denizen is in a kind of middle state, between an alien and a natural-born subject, and partakes of both of them.”—1 Blackstone, 373. Jacob’s Law Dict.

*

The only other term, I think, that was ever used in the English law, in a similar sense, was “freeman;” as, for instance, “freeman of the realm.” But “free subject” was the common term. “Freeman” was more generally used to denote members of incorporated trading companies, and persons possessing franchises in a city. Besides, it did not, I think, so generally, if ever, include women and children, as did “free subjects.”

*

“Civis, a citizen; a freeman or woman; a denizen.”—Ainsicorth.

“Citizen, a freeman of a city; not a foreigner; not a slave.”—Johnson.

“Citizen, a freeman of a city.”—Bailey.

“Citizens (ci[Editor: illegible letter]cs) are either freemen, or such as reside and keep a family in the city, &c., and some are citizens and freemen, and some are not, who have not so great privileges as the others.”—Williams’ Law Dictionary; Cunningham’s do.

“Citizen, a native or inhabitant of a city, vested with the freedom and rights thereof.”—Rees’ Cyclopedia.

“The civil government of the city of London is vested by charters and grants from the kings of England, in its own corporation, or body of citizens.”—Rees’ Cyclopedia.

“Citoyen, (Fr.) citizen, an inhabitant, or freeman of a city.”—Boyer.

“Citizen, an inhabitant of a city; one who dwells or inhabits in a city; one who possesses or enjoys certain privileges of a city; a freeman of a city; one who follows, pursues, or practises the trades or businesses of a city, as opposed to those who do not.”—Richardson.

“Though they are in the world, they are not of it, as a citizen of one city may live in another, and yet not be free of it, nor properly of it, but a mere stranger and a foreigner.”—Bishop Beveridge, cited by Richardson.

“Citizen. 1. The native of a city, or an inhabitant who enjoys the freedom and privileges of the city in which he resides; the freeman of a city, as distinguished from a foreigner, or one not entitled to its franchises. * * *

5. In the United States, a person, native or naturalized, who has the privilege of exercising the electire franchise, or the qualifications which enable him to vote for rulers, and to purchase and hold real estate.”—Webster.

“Citizens, persons. One who, under the constitution and laws of the United States, has a right to vote for representatives in congress, and other public officers, and who is qualified to fill offices in the gift of the people.”—Bouvier’s (American) Law Dict.

Kent denies that citizenship depends on one’s right of suffrage, and says that women and children are citizens.—2 Kent, 258, note in third edition.

I am not aware that Story anywhere gives a definition of the word citizen, as it is used in the constitution. He says, that “every citizen of a State is ipso facto a citizen of the United States;” and that “a person who is a naturalized citizen of the United States, by a like residence in any State in the Union, becomes ipso facto a citizen of that State.”—(3 Com. on Const., p. 555-6.) But this saying that a citizen of a State is a citizen of the United States, and vice verso, gives us no information as to who is either a citizen of a State, or of the United States, other than those “naturalized” by act of Congress.

These authorities show that the word citizen has had different meanings, and that its meaning was not, at the adoption of the constitution, and even now is not, well settled, and therefore that it was not a proper word to be used in a clause where certainty was so important.

It is especially uncertain whether the word citizens would have included women and children, as do the words “free persons.”

*

See Chap. 20 and 22.

*

In saying that Indians were “citizens of the United States,” I of course mean those living under the actual jurisdiction of the United States, and not those who, though living within the chartered limits of the States, had never had the State or United States jurisdiction extended over them; but by treaty, as well as of right, retained their independence, and were governed by their own usages and laws.

It may be necessary for the information of some persons to state that the jurisdictions of the several States have not always been coextensive with their chartered limits. The latter were fixed by the charters granted by the crown, and had reference only to the boundaries of the respective colonies, as against each other. But the rights of the colonies, (and subsequently of the States,) within their chartered limits, were subject to the Indian right of soil, or occupancy, except so far as that right should be extinguished by the consent of the Indians. So long as the Indians should choose to retain their right of soil, or occupancy, and their independence, and separate government, our governments had no jurisdiction over them, and they were not citizens of the United States. But when they surrendered their right of soil, or occupancy, abandoned their separate government, and came within our jurisdiction, or the States and the United States extended their jurisdiction over them, they became citizens of the United States, equally with any other persons. At the adoption of the constitution, there were several independent tribes within the chartered limits of the States. Others had surrendered their independent existence, and intermingled with the whites.

†

I have inclosed them in parenthesis to show the sense more distinctly.

*

I think it cannot be sustained without making three classes, for the reason before given, viz., that the words “all other persons” must not be held to mean slaves, if there be any other persons that they can apply to.

†

The following illustration will make it perfectly apparent that the representative clause of the constitution requires all the people of the country, (“Indians not taxed,” as well as others), to be counted in making up the basis of representation and taxation; that it requires and permits them to be divided into two classes only, viz., the class of units, and the three-fifths class; and, finally, that it imperatively requires that “Indians not taxed” be included in the three-fifths class, or class described as “all other persons.”

The illustration is this. Suppose Congress were to order a census of the people, for the purpose of making a constitutional apportionment of representation and taxation, and should require that the several classes of persons be arranged in separate columns, each under its appropriate head, according to the terms used in the constitution. The table would stand thus:

class of units.

three-fifths class.

“The whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed.”

“All other persons.”

This table follows the directions of the constitution, to the letter. And yet, it clearly makes but two classes; and the two classes clearly include all the people of the United States. The word “excluding” clearly excludes “Indians not taxed” only from the first class. The second class also clearly includes all that are excluded from the first. It, therefore, clearly includes “Indians not taxed.”

These facts entirely overthrow the argument that “all other persons” must mean slaves, because there were no other persons whom they could mean.

It is of no importance to say that “Indians not taxed” have never been included in the three-fifths count. The answer is, There is the plain letter of the constitution; and if Congress have not complied with it, it has been owing either to their ignorance, or their corruption.

*

Lord Mansfield says, “Where there are different statutes in pari materia, (upon the same subject,) though made at different times, or even expired, and not referring to each other, they shall be taken and construed together, as one system, and explanatory of each other.”—1 Burrows, 447.

“It is an established rule of construction, that statutes in pari materia, or upon the same subject, must be construed with reference to each other; that is, that what is clear in one statute, shall be called in aid to explain what is obscure and ambiguous in another.”—1 Blackstone, 60, note; 1 Kent, 462.

Rutherforth says, “In doubtful matters it is reasonable to presume that the same person is always in the same mind, when nothing appears to the contrary; that whatever was his design at one time, the same is likewise his design at another time, where no sufficient reason can be produced to prove an alteration of it. If the words, therefore, of any writing, will admit of two or more different senses, when they are considered separately, but must necessarily be understood in one of these senses rather than the other, in order to make the writer’s meaning agree with what he has spoken or written upon some other occasion, the reasonable presumption is, that this must be the sense in which he used them.”—Rutherforth, B. 2, ch. 7, p. 331-2.

*

See page 179.

†

I doubt if a single instance can be found, even in the statutes of the slaveholding States themselves, in force in 1789, where the word free was used, (as the slave argument claims that it was used in the constitution,) to describe either white persons, or the mass of the people other than slaves, (that is, the white and free colored,) as distinguished from the slaves, unless the statute also contained the word slave, or some other evidence, beside the word free itself, that that was the sense in which the word free was used. If there were no such statute, it proves that, by the usage of legislation, in 1789, even in the slaveholding States themselves, the word free was insufficient, of itself, to imply slavery as its correlative.

I have not thought it necessary to verify this supposition, by an examination of the statute books of the States, because the labor would be considerable, and the fact is not necessary to my case. But if the fact be as I have supposed, it takes away the last shadow of pretence, founded on the usage of legislation at that day, that such was the sense in which the word free was used in the constitution. I commend to the advocates of slavery, (on whom rests the burthen of proving the meaning of the word,) the task of verifying or disproving the supposition.

*

The Sup. Court United States say, of “the government of the Union,” that “its powers are granted by the people, and are to be exercised directly on them,” (that is, upon them as individuals,) “and for their benefit.”—4 Wheaton, 404, 405.

*

See Chap. 13.

†

The Supreme Court of the United States say, the “powers” of the general government “are to be exercised directly on the people, and for their benefit.”—4 Wheaton, 205.

*

The doctrine that the government has all power except what is prohibited to it, is of despotic origin. Despotic government is supposed to originate, and does in fact originate, with the despot, instead of the people; and he claims all power over them except what they have from time to time wrested from him. It is a consistent doctrine that such governments have all power except what is prohibited to them. But where the government originates with the people, precisely the opposite doctrine is true, viz., that the government has no power except what is granted to it.

†

If, however, they had not known that the existing slavery was unconstitutional, and had proceeded upon the mistaken belief that it was constitutional, and had intended to recognize it as being so, such intended recognition would have availed nothing; for it is an established principle, recognized by the Supreme Court of the United States, that “a legislative act, founded upon a mistaken opinion of what was law, does not change the actual state of the law, as to pre-existing cases.”—1 Cranch, 1; Peter’s Digest, 578.

*

Sec Part First, pages 90 to 94, sec. edition. Also the argument under the “Sixth Rule of Interpretation,” p. 182 to 189 of this part, and under the “Second Rule cited for Slavery,” p. 214 to 216.

*

It is not necessary, as some imagine, for Congress to enact a law making slavery illegal. Congress have no such power. Such a power would imply that slavery was now legal. Whereas it is now as much illegal as it is possible to be made by all the legislation in the world. Congress, assuming that slavery is illegal, are constitutionally bound to provide all necessary means for having that principle maintained in practice.

†

Part First, ch. 8, p. 101, 2d ed.

*

In a speech, in the Senate of the United States, upon the Fugitive Slave bill, so called, on the 19th day of August, 1850, (as reported in the Washington Union and National Intelligencer,) senator Mason, of Virginia, the chairman of the committee that reported the bill, and the principal champion of the bill in the Senate, in describing “the actual evils under which the slave States labor in reference to the reclamation of these fugitives,” said:

“Then, again, it is proposed [by one of the opponents of the bill], as a part of the proof to be adduced at the hearing, after the fugitive has been recaptured, that evidence shall be brought by the claimant to show that slavery is established in the state from which the fugitive has absconded. Now, this very thing, in a recent case in the city of New York, was required by one of the judges of that state, which case attracted the attention of the authorities of Maryland, and against which they protested, because of the indignities heaped upon their citizens, and the losses which they sustained in that city. In that case, the judge of the state court required proof that slavery was established in Maryland, and went so far as to say that the only mode of proving it was by reference to the statute-book. Such proof is required in the senator’s amendment; and, if he means by this that proof shall be brought that slavery is established by existing laws, it is impossible to comply with the requisition, for no such proof can be produced, I apprehend, in any of the slave states. I am not aware that there is a single state in which the institution is established by positive law. On a former occasion, and on a different topic, it was my duty to endeavor to show to the senate that no such law was necessary for its establishment; certainly none could be found, and none was required, in any of the states of the Union.”

I am confident that Mr Calhoun made the same admission within two or three years last past, but I have not the paper containing it at hand.

*

Servants were, at that time, a very numerous class in all the states; and there were many saws respecting them, all treating them as a distinct class from slaves.

*

Washburn, in his “Judicial History of Massachusetts,” (p. 202,) says:

“As early as 1770, and two years previous to the decision of Somersett’s case, so famous in England, the right of a master to hold a slave had been denied, by the Superior Court of Massachusetts, and upon the same grounds, substantially, as those upon which Lord Mansfield discharged Somersett, when his case came before him. The case here alluded to was James us. Lechmere, brought by the plaintiff, a negro, against his master, to recover his freedom.”

†

Perhaps it may be claimed by some that the constitution of South Carolina was an exception to this rule. By that constitution it was provided that the qualifications of members of the Senate and House of Representatives “shall be the same as mentioned in the election act.”

“The election act” was an act of the Provincial Assembly, passed in 1759, which provided that members of the Assembly “shall have in this province a settled plantation, or freehold estate, of at least five hundred acres of land, and twenty slaves.”

But this act was necessarily void, so far as the requirement in regard to slaves was concerned; because, slavery being repugnant to the laws of England, it could have no legal existence in the colony, which was restricted from making any laws, except such as were conformable, as nearly as circumstances would allow, to the laws, statutes, and rights, of the realm of England.

This part of the act, then, being void at the time it was passed, and up to the time of the adoption of the constitution of the state, the provision in that constitution could not legally be held to give force to this part of the act. Besides, there could be no slaves, legally speaking, in 1778, for the act to refer to.

*

No one, I trust, will suppose I am actually accusing abolitionists of seeking power for their own gratification. I am only showing their political position, so long as they concede that slavery is constitutional.

†

If abolitionists think that the constitution supports slavery, they ought not to ask for power under it, nor to vote for any one who will support it. Revolution should be their principle. And they should vote against all constitutional parties, block the wheels of government and thus compel revolution.

*

If slavery be unconstitutional, all the colored persons in the United States are citizens of the United States, and consequently citizens of the respective States. And when they go from one State into another, they are “entitled to all the privileges and immunities of citizens” in the latter State. And all statutes forbidding them to testify against white persons, or requlring them to give bail for good behavior, or not to become chargeable as paupers, are unconstitutional

T.17 A New System of Paper Currency (1861).↩

Title

[17.] A New System of Paper Currency. (Boston: Stacy and Richardson, 1861).

- also online Shorter Works, vol. 1: </titles/2290#lf1531-01_head_067>

Text

A NEW SYSTEM PAPER OF PAPER CURRENCY.

a

NEW SYSTEM

of

PAPER CURRENCY.

BY LYSANDER SPOONER.

BOSTON:

PRINTED BY STACY & RICHARDSON,

No. 11 Milk Street.

1861.

[ii]

Entered according to Act of Congress, in the year 1861, By LYSANDER SPOONER, in the Clerk’s office of the District Court of the United States, for the District of Massachusetts.

[iii]

CONTENTS.

- PART FIRST.

- Note, . . . . . . 5

- Chapter I.—Outline of the System, . . . 9

- Chap. II.—Advantages of the System, . . . 14

- Chap. III.—Security of the System, . . . 21

- Chap. IV.—Practicability of the System, . . 27

- Chap. V.—Legality of the System, . . . 48

- PART SECOND.

- Articles of Association of a Mortgage Stock Banking Company.

[iv]

PART FIRST

[v]

NOTE.

The subscriber believes that the right of property in ideas, is as valid, in the view both of the Common and constitutional law of this country, as is the right of property in material things; and that patent and copyright laws, instead of superseding, annulling, or being a substitute for, that right, are simply aids to it.

In publishing this system of Paper Currency, he gives notice that he is the inventor of it, and that he reserves to himself all the exclusive property in it, which, in law, equity, or natural right, he can have; and, especially, that he reserves to himself the exclusive right to furnish the Articles of Association to any Banking Companies that may adopt the system.

To secure to himself, so far as he may, this right, he has drawn up and copyrighted, not only such general Articles of Association as will be needed, but also such other papers as it will be necessary to use separately from the Articles.

Even should it be possible for other persons to draw up Articles of Association, that would evade the subscriber’s copyright, banking companies, that may adopt the system, will probably find it for their interest to adopt also the subscriber’s Articles of Association; for the reason that it will be important that Companies should all have Articles precisely, legally, and verbally alike. If their Articles should all be alike, any legal questions that may arise, when settled for one Company, would be settled for all.

Besides, if each Company were to have Articles different from those of others, no two Companies could take each other’s bills on precisely equal terms; because their legal rights, as bill holders, under each other’s Articles, would not be precisely alike, and might be very materially different.

Furthermore, if each Company were to have Articles of Association peculiar to itself, one Company, if it could take another’s bills at all, could not safely take them until the former had thoroughly examined, and satisfactorily ascertained, the legal meaning of the latter’s Articles of Association. This labor among banks, if Companies should be numerous, would be intolerable and impossible. The necessity of studying, understanding, and carrying in the mind, each other’s different Articles of Association, would introduce universal confusion, and make it impracticable for any considerable number of Companies to accept each other’s bills, or to coöperate in furnishing a currency for the public. Each Company would be able to get only such a circulation as it could get, without having its bills received by other banks. But if all banks have precisely similar Articles of [vi] Association, then one Company, so soon as it understands its own Articles, understands those of all other Companies, and can exchange bills with them readily, safely, and on precisely equal terms.

Moreover, if each separate Company were to have its peculiar Articles of Association, it would be wholly impossible for the public to become acquainted with them all, or even with any considerable number of them. It would, therefore, be impossible for the public to become acquainted with their legal rights, as bill holders, under all the different Articles. Of course they could not safely accept the currency furnished by the various Companies. But if all the Companies should have Articles precisely alike, the public would soon understand them, and could then act intelligently, as to their legal rights, in accepting or rejecting the currency.

The subscriber conceives that the Articles of Association, which he has drawn up, and copyrighted, are so nearly perfect, that they will never need any, unless very trivial, alterations. In them he has intended to provide so fully for all exigencies and details, as to supersede the necessity of By-Laws. This object was important, not only for the convenience of the Companies themselves, but because any power, in the holders of Productive Stock, to enact By-Laws, might be used to embarrass the legal rights of the bill holders under the Articles of Association.

Besides, as the holders of Productive Stock are liable to be continually changing, any power, in one set of holders, to establish By-Laws, would be likely to be used to the embarrassment, or even injury, of their successors.

It is obviously important to all parties, that the powers of the Trustees, and the rights of all holders, both of Productive and Circulating Stock, should be legally and precisely fixed by the Articles of Association, so as to be incapable of modification, or interference, by any body of men less than the whole number interested.

LYSANDER SPOONER.

Boston,

1861

.

[10]

CHAPTER I.: OUTLINE OF THE SYSTEM.

The principle of the system is, that the currency shall represent an invested dollar, instead of a specie dollar.

The currency will, therefore, be redeemable by an invested dollar, unless the bankers choose to redeem it with specie.

Theoretically the capital may be made up of any property whatever. But, in practice, it will doubtless be necessary, in order to secure public confidence in the currency, that the capital should be property of a fixed and permanent nature, liable to few casualties and hazards, and yielding a constant, regular, and certain income, sufficient to make the Productive Stock, hereafter mentioned, worth ordinarily par of specie in the market.

The best capital of all will probably be mortgages; and they may perhaps be the only capital, which it will ever be expedient to use.

This capital is to be put into joint stock, held by Trustees, and divided into shares, of one hundred dollars each, or any other sum that may be thought best.

[10]

This Stock may be called the Productive Stock, and will be entitled to the dividends.

The dividends will consist of the interest on the mortgages, and the profits of the banking.

Another kind of Stock, which may be called Circulating Stock, will be created, precisely equal in amount to the Productive Stock, and divided into shares of one dollar each.

This Circulating Stock will be represented by certificates, scrip, or bills, of various denominations, like our present bank bills—that is to say, representing one, two, three, five, ten, or more shares, of one dollar each.

These certificates, scrip, or bills of the Circulating Stock will be issued for circulation as a currency, by discounting notes, &c., as our bank bills are now.

This Circulating Stock will be entitled to no dividends; and its value will consist wholly* in its title to be received, at its nominal value, in payment of debts due to the bank, and to be redeemed by Productive Stock, unles the bankers choose to redeem it with specie. In law, the Circulating Stock will be in the nature of a lien upon the Productive Stock.

Such are the general principles of the system.

The following provisions, although perhaps not essential to the system, will yet serve to keep the currency at a uniform value, and make the system operate without friction.

The original owners of the Productive Stock, and all who hold it through purchase from them, (instead of by transfer in redemption of bills,) may be called Primary Stockholders. [11] Those, who hold Productive Stock, by transfer in redemption of bills, may be called Secondary Stockholders.

All the resources of the bank—that is, the interest on the mortgages, and the banking profits—should be pledged to pay the Secondary Stockholders precisely six per centum per annum (or such other per centum as the Articles of Association may fix for them to receive) on their Stock; no more, no less. After these dividends shall have been paid to the Secondary Stockholders, the remaining dividends should be divided among the Primary Stockholders—whether such dividends shall be more, or less, than those received by the Secondary Stockholders.

The effect of securing to the Secondary Stockholders precisely six per centum (or any other given per centum) on their Stock, will be to make the bills represent, to the public, either invested capital, yielding precisely six per centum per annum (or precisely any other per centum, which it may be designed to represent) or specie; because the bills may, at pleasure, be converted into such capital, unless the bankers prefer to redeem them with specie.

Whenever Productive Stock shall have been transferred, in redemption of bills, the bankers will have the right to buy it back, at pleasure, on paying its face in specie, with interest, (or dividends,) at the prescribed rate, for the time it shall have been in the hands of the Secondary Stockholders.*

It may be desirable, for various reasons, that the currency, representing the invested dollar, should, at all times, be, as nearly as may be, on a par with the specie dollar; neither rising above, nor falling below it, in value. This object, nearly enough for all practical purposes, can be accomplished in this way, to wit:

The rate of dividend, secured to be paid to the Secondary Stockholders, on their Productive Stock, should be fixed so high as to make that Stock worth, in their hands, par of specie. [12] (Under an abundant currency, such as this system would furnish, six per centum would probably be sufficient for this purpose). This would keep the bills up to par with specie; because they could, at pleasure, be converted into either Productive Stock, or specie.

On the other hand, the facts, that the bankers may, if they please, redeem their bills with specie, rather than by Productive Stock, and that they will have the right, at any time, to buy back the Productive Stock, from the Secondary Stockholders, by paying its face in specie, will generally keep the bills down to par with specie.*

So long as the banking business shall yield sufficient profit to pay expenses, and the Productive Stock shall remain in the hands of the original owners, there will be no necessity for the interest on the mortgages being paid; because what would be paid in by each Stockholder as interest, would come directly back to him as dividend. The payment of the interest to the bank, and of the dividends (so far as they shall be made up of such interest) by the bank, will therefore be merely nominal transactions on the books of the bank, without either being actually made.

If an original Stockholder should sell his Productive Stock outright, it would then be necessary that he should pay his interest.

[12a]

Although the banks make no absolute promise to pay specie on demand, the system nevertheless affords a much better practical guaranty for specie payments, than our present system; for these reasons, viz.:

1. The banks would be so universally solvent, and so universally known to be solvent, that no runs would ever be made upon them for specie, through fear of their insolvency. They could, therefore, maintain specie payments with much less amounts of specie, than our present banks can.

2. In ninety-nine times in a hundred, the alternative redemption would probably be preferred to specie, by the bill-holders. This would still further lessen the amount of specie necessary to be kept on hand.

3. The banks would probably find it for their interest, as promoting the circulation of their bills, to pay, at all times, such small amounts of specie, as the public convenience might require.

4. Whenever specie should not be paid on demand, no dividends could be paid to the bankers, until all claims for specie, with interest, should have been paid in full; that is to say, until all Circulating Stock, presented for redemption, and not redeemed by Productive Stock, should have been redeemed by specie; and all Productive Stock, that should have been transferred in redemption of circulation, should have been repurchased, by specie, and restored to the original holders. (For particulars on this point, see Articles of Association, especially Articles 13, 20, 23, 24, 25, 26, 27, 28, and 29.)

5. If there should be any suspensions of specie payments, they would be only temporary ones, by here and there a bank separately, and not by all the banks simultaneously, as now. No general public inconvenience would therefore be felt from that cause.

[13]

If, when any Productive Stock shall have been transferred, in redemption of the bills, the banking profits should not be sufficient to pay the dividends, to which such transferred Stock will always be entitled, it will be necessary for the original Stockholders to pay interest pro rata on their mortgages, sufficient, with the banking profits, to pay the dividends on such transferred Stock.

If any original Stockholder (mortgagor) should wish, at any time, to take his capital out of the bank—that is, release his estate from the mortgage—he has only to request the Trustees to cancel an equivalent amount of his own Productive Stock, and also an equivalent amount of Circulating Stock. They can then discharge his mortgage, without injustice to any one; and his rights in, and liabilities to, the bank are at an end; he having first paid all dues that may have previously accrued.

Minor details of the system will be seen in the Articles of Association.

N. B. In the Articles of Association, the system appears much more clear, simple, and exact, than it can be made to do in any brief description of it.

[14]

CHAPTER II.: ADVANTAGES OF THE SYSTEM.

1. The system would furnish, at all times, an abundant currency. It would furnish currency equal to one third, or one half, the value of all the real estate in the country—if so much could be used.

2. The currency would be stable in value. The system is capable of furnishing so much currency, that a large demand could be supplied as easily as a small one, and without causing any variation in the market value of the currency, or raising the rate of interest.

The presence or absence of specie in the country, would have no effect, either upon the amount of currency, or upon the stability of its value.

The prices of property would be stable, so far as their stability should depend upon the stability of the currency.

3. The currency would be solvent. It would be absolutely incapable of insolvency; for there could never be a dollar of the currency in circulation, without an invested dollar (Productive Stock) in bank, which must be transferred in redemption of it, unless redemption be made in specie. All losses, therefore, fall upon the bankers, and not upon the bill holders. If the original Stockholders should all fail—that is to say, if they should be compelled to transfer all their Productive Stock in redemption of their circulation—the result would simply be, that the original capital (Productive Stock) would pass, undiminished, into the hands of a new set of holders, who would proceed to bank upon it (re-issue the bills, and redeem them, if necessary, by the transfer of Productive Stock) in the same way that their predecessors [15] had done. And if they, too, should lose all their Productive Stock (capital) by the transfer of it in redemption of the circulation, the Stock itself would pass, unincumbered and unimpaired, into the hands of still another new set of holders, who would bank upon it, as the others had done before them. And this process would go on indefinitely, as often as one set of bankers should fail (lose all their Productive Stock). The holders of the Productive Stock, for the time being, would always be the bankers, for the time being. And whenever one set of bankers should have made such losses as to compel a transfer of all their Productive Stock, that Stock would pass into the hands of a new set of holders, and the bank, as a corporation, would be just as solvent as at first. So that, however badly the banking business should be conducted, and however frequently the bankers might fail, (if transferring all their capital, or Productive Stock, in redemption of their circulation, may be called failing,) the bank itself, as a corporation, could not fail. That is to say, its circulation could never fail of redemption. Its capital would forever remain intact; forever equivalent to the circulation; and forever subject to a compulsory demand in redemption of the circulation. In this way all losses necessarily fall upon the bankers (in the loss of their Productive Stock) and not upon the bill holders. (See Article XXI, of the Articles of Association.)

4. The solvency of the currency will be known by all, both in the neighborhood of the place of issue, and at a distance from it (if the bankers should choose to make its solvency known at a distance). These results will be accomplished in this way.

The mortgages, composing the capital of the bank, will be matter of public record, and every body, in the neighborhood, will have the means of judging for himself of the sufficiency of the property holden. If the property should be insufficient, the bank would be discredited at once; for the abundance of solvent currency would be so great, that no one would have any inducement [16] to take that which was insolvent or doubtful. In this way the credit of a bank would be established at home.

Its credit abroad would be established in this way,—

Suppose a bank, at Chicago, should wish to establish the credit of its bills in New York. All that would need to be done would be to make arrangements with some bank in New York to redeem them.* And to induce the New York bank to redeem them, it would not be necessary, as now, that the Chicago bank should keep a deposit of specie in New York. All that would be necessary would be to satisfy the New York bank of its (the Chicago bank’s) solvency—that is, of the sufficiency of the property holden. This could be done by the New York bank’s sending a commission to Chicago to investigate the question. And when the New York bank should have once become convinced of the solvency of the Chicago bank, the credit of the latter is established forever. The New York bank would not need to be continually investigating the condition of the Chicago bank; because, under this system, a bank, once solvent, is forever solvent.

It would, therefore, be perfectly easy for banks, in remote parts of the country, to make their bills redeemable in the great commercial centres, or any where else they might please, without keeping deposits of specie at those points.

One important result, among others, of this system would be, that when a merchant, from Chicago, for example, should come to New York to make purchases, he would not buy on his own credit; but would get his credit, at bank, in Chicago; bring Chicago bank bills to New York, and make his purchases with them. Or else the bills of New York banks would be so abundant at Chicago, that he would there exchange his Chicago bills for New York bills, and bring the latter home, and exchange [17] them for goods. Thus all the jobbing business of the country would be done for cash, instead of on credit, as now.

5. The currency would be cheap (afforded at a low rate of interest) and for two reasons. 1. Because the capital costs nothing. That is, its use as banking capital costs nothing; because its use as banking capital, does not interfere with its use for other purposes. 2. The system admits of competition limited only by the real property of the country. These two facts would bring the rate of interest, at all times, down to the lowest point, at which the simple business of banking could be profitably done.

6. The basis of the currency could not, like specie, be carried out of the country, so as to leave our own people destitute of a currency.

7. The system stands wholly on common law principles; requiring no aid from the government, in the way of charters of incorporation; and (in the United States) constitutionally admits of no prohibition from the government.*

8. It gives the Stockholders all the benefits of an act of incorporation, so far as to shield them from individual liability. At the same time, it avoids all necessity for privileged legislation. It also avoids all injustice to, and all liability of throwing any losses upon, the bill holders, because they are certain to get the [18] precise thing they bargained for; that being set apart, and made legally incapable of being applied to any other purpose.

9. The system would be a free one. That is, the right of furnishing currency, instead of being made a legalized monopoly, would be open equally to every man, who had the necessary property.

10. The system would be adapted to distribute credit equally as possible through the community.

11. Currency and bank credits would be so abundant, cheap, and generally diffused, as nearly or quite to supersede all other forms of temporary credit between man and man, and introduce a general system of cash payments. This would be the result, for this reason. The banks could generally, if not always, afford credit cheaper than individuals engaged in trade. The banks would be so numerous, that a man deserving of credit at all, could generally obtain it at bank. And the result would soon come about, that nearly all temporary credit would be obtained at bank, and cash payments would be made in nearly all transactions between individuals. The hazards of trade would thus be greatly diminished; every man’s business would stand on its own basis; his solvency or insolvency would be an independent matter, instead of being complicated, as now, with the solvency or insolvency of so many others.

12. It would tend to diversify industry to the greatest possible extent, by affording the best possible facilities, which a mere currency system can furnish, for engaging in the production of all new commodities as fast as they should be invented.

13. The system would liberate specie for the uses of international commerce.

14. The system would greatly enhance the value of real estate, not so much by reason of the banking profits derived from it, as of the activity it would give to agricultural, manufacturing, and commercial industry.

15. The proposed system would tend to graduate the prices of property throughout the country, according to one common [19] standard. To illustrate this point, we will suppose that, in Massachusetts, an acre of land, which yields a net income of six dollars per annum, over all charges, is worth $100. Why is it worth $100? Because the rate of interest, in Massachusetts, is six per centum per annum. The acre of land, therefore, yields the same annual income as $100, at interest. But, in Illinois, we will suppose, an acre of land, that yields $12, or $18, net income per annum, (two or three times as much as the acre in Massachusetts,) is worth but $100, the same as the acre in Massachusetts. Why is it worth no more? Because the rate of interest, in Illinois, is twelve or eighteen per centum per annum; two or three times more than in Massachusetts. The acre of land, in Illinois, therefore, although it yields two or three times as much income as the acre in Massachusetts, brings only the same price in the market, because it will yield no more annual income than $100, at interest, in Illinois. But the proposed system, by making currency abundant, and reducing the rate of interest, in Illinois, to nearly or quite the same rate as in Massachusetts, would raise lands, in Illinois, to a price corresponding with the income they yield. It would raise them to substantially the same standard of price with the lands in Massachusetts; so that, if an acre of land yielded $12, or $18, net annual income, the market price of the land would be $200, or $300, instead of $100, as now.

In this way, this system, by making currency abundant, and the rate of interest low, throughout the country, would tend to graduate the prices of property by one common standard throughout the country, according to the net income, or real value, of the property.

16. It would benefit the condition of poor men in various ways, to wit: First, those who should labor for wages, would receive their wages promptly, and in money (currency). They would thereby be enabled to make their purchases with cash, and thus make them more advantageously than now. Secondly, there would be no stagnations in business, by which they would [20] be thrown out of employment, and compelled to consume their accumulations, and perhaps fall in debt. Thirdly, there would be a much greater diversity of industry than now, and as a consequence, all labor would be better paid than now. Fourthly, those who should wish to hire capital, and establish themselves in business of their own, would be much better able to do so than now, because when all traffic should be done for cash, it would be much more safe to loan capital to a poor man, than it is now, when he is obliged to give, as well as to get, credit. Fifthly, men of wealth would retire, earlier than now, from active business, and make way for, and loan their capital to, younger men; because they could certainly loan their capital more safely than now, and probably more advantageously. By loaning their capital first on mortgage, and thus getting one income from it; and then converting the mortgages into bank capital, and thus getting another income from it, they would probably do better with their capital, than to remain in business. At any rate, the management of their capital would thus be attended with less anxiety and risk, than if they were to remain in business themselves.

17. As a standard of value, the currency would be much more uniform than it is now, because a dollar, invested for twenty or thirty years, where it is sure to yield, say, six per cent. income each year—never more, and never less—would obviously maintain a more uniform value than the dollar now does, which brings, say, four per cent. income this year, and ten, fifteen, or twenty next year.

[21]

CHAPTER III.: SECURITY OF THE SYSTEM.

Supposing the property mortgaged to be ample, the system, as a system, is absolutely secure. That is to say, the currency is absolutely sure of redemption. The capital cannot, in any possible event, be reduced below the amount necessary for the redemption of the entire circulation.

The only question, then, is—what assurances have the public, that the property mortgaged will always be ample?.

The answer is, that they have abundant assurances, as follows:

1. The mortgages will all be on record, where any body interested can examine them, and judge for himself whether the property holden is sufficient.

2. Each bank will find it expedient to print a large number of copies of its Articles of Association, including copies of its mortgages. Appended to these copies, may be copies of the certificates of appraisers, as to the value of the property. These certificates, if they come from men of known character and judgment, will be entitled to confidence. Certificates also of the assessed value of the property, on the tax lists of the town, may be appended; and these, coming from disinterested and honest men of good judgment, as the assessors of taxes usually are, will be worthy of reliance.

Copies of the Articles of Association, with these certificates appended, will be sent, by the bank, to other banks, and given to individuals, with whom the bank wishes to establish its credit.

3. The Trustees of a bank will be generally known as men of character and judgment—for otherwise a bank would be discredited at once. If they are thus known, their acceptance of [22] the office of Trustees, will be a reasonable guaranty for the sufficiency of the property holden; for such men would not be likely to become Trustees, except for a solvent bank.

4. The abundance of undoubted currency would be such, that the public would be under no necessity to take doubtful currency; and therefore doubtful currency could get no circulation at all.

5. Mortgages upon the real property of the country, at one third, or one half, its value, would probably furnish a great deal more currency than could be used. No one company, therefore, could expect to get out a circulation of more than one third, or one half, the value of the property mortgaged. It would be of no use for them, therefore, to mortgage their property for more than that amount. If they should mortgage their property for more, and attempt to get out more circulation, they would thereby discredit their bank, and thus either fail of getting any circulation at all, or certainly fail of getting as much circulation as they might have got, if their property had been mortgaged only for a proper amount. It, therefore, would not be for the interest of a banking company to mortgage their property at a higher rate than one third, or one half, its value. And at this rate, the mortgages would be safe for a long series of years, (unless in very extraordinary cases,) because, under a system of abundant currency, real estate would always be rising in value, rather than falling. The mortgages, therefore, would be growing better all the while, instead of growing worse.

6. By the Articles of Association, all the mortgages, which make up the capital of a bank, are made mutually responsible for each other; because, (see Articles XXIX and XXXVII,) if any one mortgage proves insufficient, no dividend can afterwards be paid to any Primary Stockholder, until that deficiency has been made good by the company. The effect of this provision will be, to make all the founders of a bank look carefully to the sufficiency of each other’s mortgages; because no man will be willing to put in a good mortgage of his own, on equal terms with a bad mortgage of another man’s, when he knows that his [23] own mortgage will have to contribute to make good any deficiency of the other. The result will be that the mortgages, that go to make up the capital of any one bank, will be either all good, or all bad. If they are all good, the solvency of the bank will be apparent to all in the vicinity; and the credit of the bank will at once be established, at home. If the mortgages are all bad, that fact also will be apparent to every body in the vicinity; and the bank is at once discredited, at home.

From all the foregoing considerations, it is evident that nothing is easier than for a good bank to establish its credit, at home; and that nothing is more certain than that a bad bank would be discredited, at home, from the outset, and get no circulation at all.

It is also evident that a bank, that has no credit at home, could get none abroad. There is, therefore, no danger of the public being swindled by bad banks.

7. It would be easy for a good bank to establish its credit abroad—for it could do it by establishing its credit with other banks. This it could do, partly by means of its credit at home, and partly by making arrangements with other banks to redeem its bills. In order to do this, it must be at the necessary expense and trouble of satisfying these other banks of its solvency—that is, by furnishing them satisfactory evidence of the sufficiency of the mortgaged property; a thing, that is obviously very easy to be done, if the mortgaged property be really sufficient.

8. In addition to the security of each individual mortgage, and of the mutual responsibility of the mortgages for each other, there is the still further security of all the debts due to the banks; debts a little more than equivalent (by the amount of interest on the loans) to the amount of bills in circulation.

In this connexion it may be added, that under the system proposed, the banking business will be a much safer business than it is now; and consequently the debts due to the bank will be a much better security for the solvency of the bank, than such debts now are; because, under a system, which furnishes, at all [24] times, a constant and ample supply of currency, industry and trade will be subject to none of those revulsions and stagnations, which cause extensive or general bankruptcies; the debtors of banks will all make their sales for cash, instead of giving credit. For these reasons the credits, given by the banks, will obviously be much more uniformly safe than they now are; and consequently the debts, due the banks, will afford a much better security, than they now do, for the solvency of the banks themselves.

9. The banks themselves would act as guardians to the public against frauds by each other. This would be done in this way. Bank A (a solvent bank) would not receive the bills of bank B, unless bank B had first satisfied bank A of its solvency. And bank A would be satisfied only by personal examination of the mortgages of bank B. In this way any unsound bank would be discredited by the surrounding banks, and thus discredited in the eyes of the community.

But it has been said that under the New York free banking law, mortgages are deposited with the State Comptroller, (or Superintendent of Banks,) as security for the redemption of the currency; and that when these mortgages come to be sold, the lands often fail to bring the amount of the mortgage. And the question has been asked, whether, under the system here proposed, the mortgaged property might not prove insufficient, as well as in New York?

The answer is, that the mortgages in New York may have proved insufficient for either or both of two reasons.

1. They may have proved insufficient, because the lands, being sold for specie, at a time when specie had mostly left the country, could not bring what was not to be had—that is, specie. But this is no proof that the lands were not, in ordinary times, and under an abundant currency, a sufficient security; but only that, when specie has gone out of the country, lands are affected like all other property, and will not, any more than other property, bring their true value in specie.

[25]

But under the system proposed, the absence of specie would occasion no contraction of the currency, and no depression in the price of lands. And therefore a mortgage, that was sufficient at one time, would be sufficient at all times. No forced sales would be made; but the mortgages would run (if only the interest were paid) until the final winding up of the bank. If the interest were not paid, the bank would take possession, and apply the rents to the payment of the interest. Or, at worst, they would sell the property. And it could always be sold advantageously, because, there never being a scarcity of currency, property in general would never be depressed.

2. The other reason, for the failure of the New York mortgages, may have been fraudulent appraisals.

The facilities for fraudulent appraisals are much greater under the New York system, than they would be under the system proposed, and for these reasons.

Under the New York system, all that is necessary to get a bank in operation, is, that mortgages, satisfactory to the State Comptroller, or Superintendent of Banks, should be deposited with him. And he accepts the mortgages on the simple appraisal of men, appointed by himself, or satisfactory to himself. This being done, the currency is then issued, and the public receive it, because the State has thus virtually certified that it is well secured.

Now, it is evident that all that is necessary to get up a swindling bank, under this system, is simply to secure the approval of one man—the Comptroller, (or Superintendent of Banks,) who knows nothing of the land himself—to the appraisal of the land mortgaged. If but this one man can either be cheated, or be induced to become himself a cheat, all the other consequences follow; because the currency is then issued under his authority, and is received by the public, on the strength of his virtual indorsement.

Now, as it cannot be a very difficult matter to cheat this one man, or perhaps to induce him to become himself a cheat, in [26] such a case as this, it is evident that the system affords little security for the sufficiency of the mortgages.

But under the system proposed, no such facilities for fraud would exist, because the credit of the bank would not rest upon the certificate of any one man, nor upon any indorsement of the State. The State would not indorse the currency at all, any more than it now indorses the notes or mortgages of private persons. Each bank would, therefore, have to stand on its own merits, subject to the scrutiny of the whole community.

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CHAPTER IV.: PRACTICABILITY OF THE SYSTEM.

The system is plainly practicable, provided the currency will pass.

The only question, then, is, whether the currency will pass? Whether men, if left to do as they please, will buy and sell it, in exchange for other commodities, as they now buy and sell gold and silver coin, and bank notes, in exchange for other commodities?

To answer this question, it is necessary to ascertain what it is, that makes any thing pass as a currency.

What, for example, is it, that makes gold and silver coin pass as a currency?

The answer is, that five conditions are necessary to make any thing pass readily as a currency. First, that the thing should have much value, and yet be of small bulk and weight; secondly, that it should be divisible into small parcels; thirdly, that the quantity and quality of each of these parcels should be accurately measured, and then reliably marked upon the parcels themselves; fourthly, that these parcels should be convenient for being manipulated, counted, transported, &c.; and, fifthly, that the currency should have a publicly known market value.*

These are the only conditions, that are necessary to make any thing pass readily as a currency.

The paper currency proposed—the mortgage stock currency—fulfils all these conditions. First, it would have much value in small bulk and weight. Secondly, it would be conveniently [28] divisible into small parcels, that is, parcels as small as one dollar. Thirdly, the quantity and quality of these parcels would be accurately measured, and reliably marked upon the parcels themselves. Fourthly, the parcels would be convenient for being manipulated, counted, transported, &c. And, Fifthly, the currency would have a publicly known market value. Its market value, in comparison with other commodities, would certainly be as well known, as is the market value of gold and silver coins, or bank notes.

There is no reason, then, why it should not pass, as a currency—at its market value—whatever that may be.

Its market value may be greater or less than that of gold and silver; but this would not prevent its passing, at its market value. Indeed the market value of any thing is only that value, at which the thing will sell readily in the market. So that, to say that a thing has a market value—a publicly known market value—is equivalent to saying that it will pass as a currency, provided it be convenient in all other respects.

Secondly.

But would this paper currency be as much in demand, in the market, as gold and silver coins now are? That is, would it sell as readily as the coins now do, in exchange for other commodities?

To answer this question, we must ascertain why it is that the coins are in demand at all, as currency; why it is that they have a market value; why it is that every man will accept them in exchange for any thing he has to sell.

The solution of these queries is, that the original, primal source of all the demand for them, as currency—the essential reason why they have a market value, and sell so readily in exchange for all other commodities—is because they are wanted, to be taken out of circulation, and converted into plate, jewelry, and other articles of use.

[29]

If they were not wanted, to be taken out of circulation, and wrought into articles of use, they could not circulate at all, as a currency. No one would have any motive to buy them; and no one would give any thing of value in exchange for them.

The reason of this is, that gold and silver, in the state of coin, cannot be used.* Consequently, in the state of coin, they produce nothing to the owner. A man cannot afford to keep them, as an investment, because that would be equivalent to losing the use of his capital. He must, therefore, either exchange them for something that he can use—something that will be productive—yield an income; or else he must convert them into plate, jewelry, &c., in which form he can use them, and thus get an income from them.

It is, therefore, only when gold and silver coins have been wrought up into plate, jewelry, &c., that they can be said to be invested; because it is only in that form, that they can be used, be productive, or yield an income.

The income, which they yield, as investments—that is, the income, which they yield, when used in the form of plate, jewelry, &c.,—is yielded mostly in the shape of luxurious pleasure—the pleasure of gratified fancy, vanity, or pride.

The amount of this income we will suppose to be six per centum per annum, on their whole value. That is to say, a person, who is able, and has tastes that way, will give six dollars a year for the simple pleasure of using one hundred dollars worth of plate, jewelry, &c.

This six dollars worth of pleasure, then, or six dollars worth of gratified fancy, vanity, or pride, is the annual income from an investment of one hundred dollars in gold and silver plate, jewelry, &c.

This, be it noticed, is the only income, that gold and silver are capable of yielding; because plate, jewelry, &c., are the only forms, in which they can be used. So long as they remain [30] in coin, they cannot be used, and therefore cannot yield an income.

It is, then, only this six per centum annual income—this six dollars worth of pleasure—which gold and silver yield, as investments, that is really the cause of all the demand for them, in the market, and consequently of their passing as a currency.

This fact may now be assumed to be established, viz.: that the origin of all the demand for gold and silver, as a currency—the essential reason why they have a market value, and sell so readily in exchange for other commodities—is because they are wanted, to be taken out of circulation, and converted into plate, jewelry, &c., in which form only they are capable of being used, or of yielding an income.

By this it is not meant that every man, who takes a gold or silver coin, as currency, takes it because he himself wants a piece of gold or silver plate, or jewelry; nor because he himself intends or wishes to work it into plate or jewelry; for such is not the case, probably, with one man in a thousand, or perhaps one man in ten thousand, of those who take the coin. Each man takes it, as currency, simply because he can sell it again. But he can sell it again solely because some other man wants it, or because some other man will want it, in order to convert it into articles for use. He can sell it, solely because the goldsmith, the silversmith, the dentist, &c., will sometime come along and buy it, take it out of circulation, and work it up into some article for consumption—that is, for use.

This final consumption, or use, then, is the mainspring that sets the coins in circulation, and keeps them in circulation, as a currency.

It is solely the consumption, or use, of them, in other articles than currency, that creates any demand for them, in the market, as currency.

It is, then, only the value, which gold and silver have, as productive investments, in articles of use, in plate, jewelry, &c., that creates any demand for them, and enables them to pass, as a currency.

[31]

This fact, then, being established, the following proposition is an inevitable deduction from it, viz.: that the activity of the demand for gold and silver coins, as a currency, depends wholly upon the activity of the demand for them, to be taken out of circulation, and converted into plate, jewelry, &c.

To illustrate this point, let us suppose a community of one million of people, shut out from the rest of the world, having among them one million dollars of gold and silver coins, and having no gold or silver among them, except in coins. If but one dollar of these coins were to be taken out of circulation each year, and converted into plate, jewelry, or other articles of use, the demand for all the remaining coins, as a currency, would wholly, or substantially, cease. And why? Solely because the stock of coins on hand, (or the stock of gold and silver on hand,) would be equal to a million years’ consumption. The consequence obviously would be that gold and silver would have no value in the market; any more than cotton or iron would have a value in the market, if there were a million years’ stock on hand.

But if, instead of one dollar, an hundred thousand dollars were annually taken out of circulation, and converted into plate, jewelry, or other articles of use, (even though their place were annually supplied by an equal amount taken from the mines,) this demand for the coins, to be taken out of circulation, would create a corresponding demand for them, as a currency. And why? Solely because the stock of gold and silver on hand, would be equivalent only to ten years’ consumption. This would give them a value, where before they had none; and enable them to circulate, as a currency, where before they could not.

Thus it is evident that the whole demand for gold and silver, as a currency, depends upon the demand for them for consumption, as plate, jewelry, &c. And consequently the activity of the demand for them, as a currency, depends upon the activity of the demand for them, for consumption. In other words, the activity of the demand for the coins, as a currency, depends upon the activity of the demand for them as investments, in articles of use.

[32]

And what is true of the coins, would be true also of the paper currency proposed. The activity of the demand for the Circulating Stock, as currency, would be just in proportion to the demand for the mortgages, or Productive Stock, as investments. As the coins would be in demand, as a currency, solely in proportion to the demand for them, to be invested in plate, jewelry, &c., so the paper currency would be in demand, as currency, solely in proportion to the demand for it, to be invested in mortgages, or Productive Stock. The demand for these two different kinds of investments, would govern the demand for the two different kinds of currency.

Now, in order to determine whether the paper currency proposed would be in as much demand, in the market, as the gold and silver coins circulating in competition with it, we have only to determine whether the community at large would wish to make annually as many investments, in the mortgages proposed, as they would in plate, jewelry, &c. Or, perhaps, rather, the true question is, whether as large a proportion of the whole stock of paper currency, in the market, would be annually taken out of circulation, and invested in the mortgages, as of the gold and silver coin in plate, jewelry, &c. If such would be the case, then one kind of currency would be just as much in demand as the other.

To illustrate this point, suppose that, in this country, one hundred millions of coin, and one hundred millions of the proposed paper currency, were in circulation, in competition with each other. And suppose that ten millions of the coin—that is, ten per centum of the whole stock of coin—were annually wanted to be taken out of circulation, and invested in plate, jewelry, &c.; and that ten millions also of the paper currency—that is, ten per centum of the whole stock of paper currency—were annually wanted, to be taken out of circulation, and invested in the mortgages, the market demand for these two kinds of currency would be precisely alike.

Or suppose that one hundred millions of coin, and five [33] hundred millions of the paper currency, were in circulation, in competition with each other; and that ten millions of the coin (ten per centum of the whole stock of coin) were annually wanted, to be taken out of circulation, and invested in plate, jewelry, &c., and that fifty millions of the paper currency (ten per centum on the whole stock of paper currency) were annually wanted, to be taken out of circulation, and invested in mortgages, the demand, in the market, for each of the two kinds of currency would still be precisely equal, in point of activity. That is to say, one kind of currency would circulate just as readily as the other.

On this theory, it is very easy to settle the question of the comparative demand for the two different kinds of currency; for, although the amount of paper currency might perhaps be fifty or an hundred times greater than the amount of gold and silver, yet the demand for the mortgages (Productive Stock) as investments, would probably be fifty or an hundred times greater than the demand for plate, jewelry, &c., as investments.

The reason, why there would be this greater demand for the mortgages, as investments, is, that they would yield their income, in money, or currency, which could be appropriated to the supply of any and all the various necessaries, wants, comforts, and pleasures, which money can buy; while the plate, jewelry, &c., as investments, yield their income mostly in the shape of a luxurious pleasure, which most persons do not highly appreciate, and which few persons can indulge in, to any considerable extent, without being compelled to pinch themselves in the matter of common necessaries and comforts.

Mankind, therefore, desire to have the great bulk of their property invested so as to yield an income in money; and only a very small portion of it in such articles of fancy as plate, jewelry, &c.

Under these circumstances, it is probable that if the paper currency were in circulation in competition with the coin, in the proportion of fifty or an hundred to one, the paper would be just [34] as acceptable a currency as the coin; would be just as much in demand; would exchange just as readily for other commodities; and would equally well maintain its value in the market.

Thirdly.

Would the mortgages, or Productive Stock, be so desirable a form of investment, as to invite capital into it, and thus create a demand for the currency, with a view to having it redeemed by Productive Stock?

The answer is, that the Productive Stock would be a desirable investment, for the various reasons of security, profit, and convenience.

1. As regards security, no kind of investment would exceed it.

2. As regards profit, the Productive Stock would pay two different dividends—one to Primary holders, and the other to Secondary holders.

The dividends to Primary Stockholders would be made up of the interest on the mortgages, and the profits of the banking. The rate of these dividends, therefore, will depend upon the rate of interest on the mortgages, and the amount of banking profits.

Probably the best rate of interest for the mortgages to bear, would be seven per centum. This would probably be sufficient to make the Productive Stock, in the hands of Primary holders, worth more than par of specie, even though there should be no profits at all from the banking business. But if there should be profits from the banking business, they would go to swell the dividends. So that the dividends to Primary Stockholders would never be less than seven per cent. so long as the banking business should simply pay expenses; and they would rise above that rate just in proportion to the banking profits. There can, therefore, be no doubt of the desirable character of the Productive Stock, as investments, in the hands of Primary holders.

[35]

In the hands of Secondary holders, the Productive Stock would pay an unvarying rate of dividend, fixed by the Articles of Association.

The currency would represent the Productive Stock, in the hands of Secondary holders, and not in the hands of Primary holders; because the holders of the currency, by returning it for redemption, could generally expect to make themselves only Secondary holders of the Productive Stock. They could rarely expect to become Primary holders; and, therefore, would not return the currency for redemption, with that view.

Probably six per centum would be the best rate of dividend, to be fixed for the Secondary Stockholders to receive; for that is probably the rate, that would put the currency most nearly on a par with specie. If the rate were fixed at seven per cent., the Productive Stock, in the hands of Secondary holders, would be worth more than par of specie; and the consequence would be, that the currency would be returned for redemption, in the hope to get Productive Stock, rather than specie. And thus the currency could not be kept in circulation. On the other hand, if the rate of dividend, for the Secondary Stockholders, were fixed at only five per cent., that might prove insufficient to make the currency worth par of specie. Therefore six per cent. is likely to prove a better rate than either five or seven.

Supposing, then, the rate of dividend, for Secondary Stockholders to receive, to be fixed at six per cent., the investment would be sufficiently inviting to make the currency worth par of specie. It would certainly be sufficient to attract much capital, as every day’s observation attests. As a six per cent. stock, it would stand on a par with United States stocks, and State stocks, (bearing six per cent. interest,) which are, at nearly all times, worth par of specie, and oftentimes more than par of specie, in the market.

3. As regards convenience, the Productive Stock would be equal to any in the market; especially in the hands of Secondary holders. It being in shares of, say, one hundred dollars each, [36] and its income (in the hands of Secondary holders) being precisely fixed, its value is precisely known. The stock is, therefore, in as merchantable form as capital can be invested in. It is in as merchantable form as United States stocks, or State stocks, (bearing fixed rates of interest,) which are nearly or quite as merchantable as bank bills themselves.

The objections, heretofore entertained against mortgages, as an investment, have no application whatever to stocks of this kind. Those objections have been as follows:

1. The inconvenience of making the investment, owing to the necessity of investigating titles, making valuations, &c., all of which processes are attended with delay, and with some danger of mistakes or frauds. In these bank stock mortgages, these delays and dangers would all be avoided; because the soundness of the titles, and the moderation of the valuations, would be notorious. It would be a necessity, on the part of the banks, to make them so, as a condition precedent to the banks’ getting any circulation for their currency.

2. A second objection, to mortgages heretofore, has been, that each mortgage was in bulk, and could not be broken. It was, therefore, in a great degree, an unmerchantable article; because it was not always, nor even often, an easy thing to find a person wishing to make an investment of that particular amount. This objection, too, which was really a very serious one, is entirely obviated in the case of the Productive Stock; for here the mortgages are divided into shares of $100, or any other amount that may be desired; and thus put in as merchantable form, as any investment can possibly be in.

3. A third objection, to mortgages heretofore, has been, that neither the interest nor the principal of the investment could be realized from them (unless the debtor should choose to pay) without a tedious delay; taking possession of the premises; looking after rents and profits; giving the mortgagor time (perhaps a long time) for redemption; or incurring delay, expense, and trouble in advertising the premises, and selling them. In [37] the case of the Secondary holders of Productive Stock, every objection of this kind is obviated, for substantially the whole resources of the bank (which are morally certain to be ample) are pledged to the payment of the dividends promptly. And even as to the Primary holders, they are not likely to be personally troubled in the matter, for the Trustees attend to all business matters in relation to the mortgages. The only one, of the inconveniences just mentioned, that the Primary Stockholders are ever likely to be subjected to, is a delay in receiving some portion of their dividends, if the mortgagors should not be prompt in the payment of interest. But this would so rarely occur as to prove a very slight objection, if any, to the investment.

The result, then, obviously would be, that these stocks would be of the very first class, as investments. Their safety, their profit, and their merchantable character, would all conspire to make them preëminently desirable. And the consequence would be that the demand for them would be sufficient to make the currency constantly in demand, as a means of obtaining them.

Under an abundant currency, such as the system would furnish, and under the low rates of interest that would follow, the Productive Stock would probably be much more in demand than stocks, paying similar dividends, now are; because now, a very large amount of loanable capital is kept invested in promissory notes, and other personal securities, on account of their paying a better interest than stocks. But under the system proposed, the banks would be so numerous, and the rate of interest at them so low, that temporary loans would all be obtained at the banks, rather than in the street; and the capital, which is now loaned in the street, would then, as the best alternative, seek investment in bank stocks.

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Fourthly.

The next question is, would the paper currency proposed, maintain a par value with specie?

This question has already been discussed somewhat; but a few more words need to be said.

We have already seen that the paper would circulate, at its true value, whatever that might be. It is, nevertheless, an important question, whether its value, in the market, would be equal to that of specie?

The answer is, that if the rate of dividend, paid to Secondary holders of Productive Stock, should be six per cent., that would be sufficient to make the currency, at most times, if not at all times, worth par of specie. If it should not be at all times, it would be because the market value of specie would fluctuate more than that of the paper; thereby proving that the paper was the most uniform standard of value.

The paper currency could never rise above the value of specie; because the banks would have the right to redeem their circulation with specie, if they should so please.

If, therefore, there should ever be a difference between the value of the paper, and that of specie, it must be either because the specie would stand constantly above the paper, or because it would occasionally rise above it.

Whether the value of specie would stand constantly above that of the paper, would depend upon the rate of dividend secured to the Secondary holders of the Productive Stock. If this rate should be six per centum, that would certainly be sufficient to make the currency worth as much as specie, at times; because there are times, when there is plenty of specie to be loaned at that rate.

The only remaining question, then, is, whether the specie would occasionally rise in value above the paper? The answer is, that it would very rarely, if ever; and for this reason, viz.: [39] that the supply of paper would always be so abundant and constant, that it is probable, if not certain, that none of those scarcities or contractions, in the currency, which alone cause a rise in the price of specie, would ever occur. And if they never should occur, the paper would always be on a par with specie. If, however, the specie should ever stand above the paper, that would only prove, not that the paper had fallen, but that the specie had risen. In other words, it would prove that the fluctuation was in the specie, and not in the paper; and, consequently, that the paper was the least variable standard of value.

Under these circumstances, the paper would constitute nearly all the currency in circulation (unless for sums below one dollar). It would be the only currency loaned by the banks. It would be a legal tender in payment of all debts due the banks. And it would be sufficient for all cash purchases and sales between man and man. And if an individual should want specie for any extraordinary purpose—as, for exportation, for example—he would buy the specie as merchandize, paying the difference between that and the paper.

Still, specie would probably, at all times, be more abundant, as a currency, in proportion to the demand, than it is now; because it would be so much less needed. The supply would be greater, in proportion to the demand, than now, because the greater supply of paper would supersede the necessity for, and the use of, specie, as a currency.

If the proposed paper currency should be introduced throughout the world, (as it sooner or later would be, if found to be essentially better than any other system,) the coins would become superabundant, unless a greater proportion of them should be consumed in the arts, than now. And gold and silver, whether in coin or not, if they now stand above their value for uses in the arts, would fall to that value, and there remain, as they ought.

[40]

Fifthly.

Could the proposed system be introduced in competition with the existing system?

Yes, for various reasons, as follows:—

1. The proposed system would meet with no material opposition from any quarter, unless from the stockholders in the existing banks. Would it from them? No; because it would probably subserve the interests of four fifths, or nine tenths, of them, better even than the existing system. Let us see.

The stockholders of the present banks are made up of two classes, viz.: those who hold their stock in order to lend money, and those who hold it in order to borrow money.

Both of these classes would probably be benefitted, rather than injured, by the adoption of the new system.

Those, who have money to lend, could probably do better with it, by investing it first in a mortgage, and thus getting one income from it; and then using the mortgage as bank capital, and thus getting another income from it.

Their capital would thus be more safely invested than it is now; and would probably yield a larger income.

Those, who own bank stock, in order to borrow more than they lend, would probably do better than they do now, because, first, they would keep their own capital wholly in their own business; and, secondly, if they needed more, would easily borrow it (if worthy of credit) on account of the abundance of banks, that would be seeking borrowers. Thus they would be as well supplied with capital as now, and with less risk and trouble; because they would borrow only what they needed over and above their own capital; and this they would do directly, and without complicating their business, as now, with that of a bank, by becoming stockholders, and being compelled to look after, and take the risks of, all the business of the bank.

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Another reason, why the stockholders in the present banks would be benefitted by the new system, is, that very many of these stockholders are large owners of real estate. The new system, by enabling the owners of real estate to get an income from it, as banking capital, and still more by furnishing increased facilities for agriculture, manufactures, and commerce, would greatly increase the value of real estate in general. This increased value, given to real estate, would be of more importance to the owners thereof, than any income or advantage, derived by them from the present system of banking, over those to be derived from the proposed system.

The opposition to the new system, then, (if any there should be,) on the part of stockholders in the present banks, would be an opposition of prejudice, and not of interest; for there are few or no stockholders in the present banks, who would not derive greater advantages from the new system, than from the present one.

2. The new currency could be introduced (brought into circulation) in competition with the existing paper currency, for the further reason, that, if the existing banks should receive the currency of the new banks, at par, the currency of the new banks would thus be enabled to circulate, in the community, on a par with that of the present banks. On the other hand, if the present banks should not receive, at par, the currency of the new banks, the new banks and their friends would systematically, and to the extent of their ability, run upon the existing banks for specie; and thus compel them to suspend payments in specie. And when the existing banks should have suspended payment in specie, the new banks would stand better than the present ones, in the estimation of the community; because the existing banks would then offer no redemption of their bills, except by receiving them in payment of debts; whereas the new banks would not only offer that redemption, but also a further redemption in Productive Stock.

If the new banks, and their friends, should systematically run [42] upon the existing banks for specie, the existing banks could not retaliate; because the new banks could redeem with Productive Stock, instead of specie, if they should so choose.

Thus the new banks, by drawing specie from the existing banks, could pay specie, to the public, as long as the existing banks could pay it; and thus the new banks would put themselves on a par with the existing banks, so far as paying specie, to the public, should be concerned. But the difference between them would be, that the present banks would be compelled to pay specie to the new banks; but the new banks would not be compelled to pay specie to the existing banks.

This advantage, which the new banks would have over the existing ones, would enable the new banks to coerce the existing ones, either into a suspension of specie payments, (when the new ones would stand better than their rivals,) or else into receiving the currency of the new banks at par—in which case the new banks would stand at least as well as the existing ones.

3. The new banks would have an advantage over the existing ones, in introducing their currency into circulation, by reason of the fact that, inasmuch as their capital would cost them nothing, (they not being obliged to keep any considerable amount of specie on hand,) they would be able to lend money at a lower rate of interest.

4. The currency of the new banks would go into circulation, for the further reason, that every body would prefer it, (the currency,) on account of its superior safety, convenience, and merchantable character, to the credit of private persons. This preference would be sufficient to bring it into use in substantially all those purchases and sales, which are now made on credit. And if the currency were to go into use only to that extent, it would be a success. But if it were to go into use to that extent, it would obviously go into use to a still greater extent, and supersede, wholly or partially, the existing currency, even in those purchases and sales, which are now made for cash.

Doubtless nine tenths, and perhaps nineteen twentieths, of all [43] the persons, who now get credit, get it elsewhere than at the banks; in fact, never go to a bank for credit. Yet these persons are worthy of credit, as is proved by the fact that they get it of private persons, by purchasing commodities on credit. It would be far better for them to get their credit at bank, and make their purchases for cash, for they would then make them much more advantageously. All this class of persons, therefore, could be relied on to introduce the new currency. And they would have no difficulty in introducing it—that is, in making their purchases with it—because it would be preferred to their private credit, even by those who now give them credit.

5. Under the existing system, when the banks suspend specie payments, we see that their bills not only continue to circulate, but that they maintain a value, in the market, very nearly on a par with specie. Why is this? It is principally, if not solely, because the bills of each bank are a legal tender in payment of any debts due to that bank. Inasmuch as the public always owe a bank more (by the amount of interest on loans) than the bank owes the public, there is sure to be a demand for all the outstanding bills of a bank, to pay the debts due to the bank—provided the debts due to the bank be solvent. It is this fact, that keeps the bills of the bank so nearly on a par with specie. That is, the bills are worth very nearly dollar for dollar, because they will pay debts to the banks, dollar for dollar, which would otherwise have to be paid in specie.

This fact, in regard to the circulation of the bills of suspended banks, under the existing system, sufficiently demonstrates that the paper currency now proposed, would not only circulate, but that it would maintain a value very nearly, if not quite, on a par with specie; because it would not only be a legal tender, dollar for dollar, for all debts due to the banks, but would also be redeemable in Productive Stock, which would always maintain, very nearly or quite, a par value with specie, in the market. In this latter respect (of being redeemable by Productive Stock) the proposed currency would have a clear, and very important, [44] advantage over the bills of suspended banks, which now circulate, and maintain their value nearly on a par with specie. There is, therefore, no ground for saying that the new currency would not circulate, if it were offered, when we see that a far less safe, less redeemable, and less desirable currency, to wit, the bills of suspended banks, under the present system, do not only circulate, but maintain their value so nearly on a par with specie.

6. It may be supposed, at first view, that merchants, especially importers, might reasonably object to the proposed currency, on the ground that their interests require that the currency of a nation be such as can be converted into specie, whenever they (the merchants) may have occasion to export specie.

Admitting, for the sake of the argument, that the merchants might suffer some inconvenience of this kind, the effect would only be to make them more careful to keep the imports within the exports of the country. And this benefit to the country would counterbalance a thousand fold any inconvenience to the merchants.

The merchants have no claim that the whole country shall depend, for a currency, upon a commodity, or commodities, like gold and silver, which the merchants can at pleasure carry out of the country, leaving the nation destitute of a currency. And it is nothing but suicide for a people to depend upon such commodities for a currency.

Under the present system, whenever the balance of trade is much against us, the merchants export specie in such quantities as to cause sudden and severe contractions in the currency, a great reduction in the price of commodities relatively to specie, (that is, a great rise in the price of specie,) general bankruptcy among persons in debt, general stagnation in industry and trade, and immense distress and ruin on every hand. This state of things checks importations for a while, until the balance of trade turns in our favor; when the specie returns, currency expands, credit revives, industry and trade become active, and, for a time, we have what we call prosperity. But in a few years, the [45] merchants again export the specie, and the same catastrophe is acted over again. And such must continue to be our experience, until our present vicious system of currency and credit shall be corrected. This no one seems to doubt.

Certainly such evils are not to be endured by a whole nation, from no motive but to maintain a currency, which the merchants can export, whenever they shall have imported more goods than the legitimate exports of the country will pay for.

It is the proper function of merchants to conform their business to the interests of the people, in the matter of currency, as much as in the commodities bought and sold with and for it. And it would be as legitimate for the merchants, instead of supplying the people with such commodities as the latter desire, to dictate to them what they may, and may not, buy, as it is for them (the merchants) to dictate to the people what currency the latter shall use.

It is the legitimate function of merchants to buy such commodities as the people have to sell, and to sell such as the people wish to buy. So far as merchants do this, they are a useful class. And the principle applies as well to the currency, that is to be bought and sold, as to any other commodities. And, as matter of fact, whatever this principle requires of merchants, they readily acquiesce in. They adapt themselves at once to any system of currency, that happens to prevail for the time being. And certainly no class will more eagerly welcome any system of banking, that will furnish them, at all times, with abundant credit, and abundant currency, and cash payments in trade; for such a system would be a guaranty, to them, of a safe, constant, and profitable traffic, in the place of the present fitful, chaotic, and perilous one, in which so many of their number are being continually wrecked.

So far as the export of specie is concerned, probably not one merchant in a hundred—perhaps not one in a thousand—has the least interest in it. A currency, that will pay their bank notes, is substantially all that, as a class, they demand, or desire.

[46]

But, in truth, the system would favor, instead of injuring, the interests even of those few merchants who occasionally do export specie; for it would put at their disposal nearly all the gold and silver of the country, for exportation, or any other purpose. That is to say, the merchants could export nearly all the gold and silver, without affecting our home currency; and consequently without disturbing industry and trade. And this is one of the great merits of the system. The presence or absence of specie in the country would not be known by its effects upon the general body of currency.

If the paper currency, now proposed, were introduced throughout the world, gold and silver would enter very little into the internal commerce of nations. They would go back and forth between nations, to settle balances; and would be found, in large quantities, in seaports as merchandize. And merchants would purchase them for export, as they would any other commodities.

7. The system proposed would obviously tend to the concentration of specie, in large quantities, in the seaports. This would enable the banks, in the seaports, to pay specie, if it should be at all necessary. And this would enable the banks, in the seaports, to furnish a specie paying currency for the interior of the country, when the banks themselves, in the interior, would not pay it. The advantage of circulation, which the seaport banks might thus obtain over the banks of the interior, would be great enough to compensate for any little trouble it might be for the former to pay specie. In fact, this interior circulation might very probably become so extensive, as to be a source of great profit to the seaport banks.

If the seaport banks should send their currency, in large quantities, into the interior, the banks of the interior would have little need to redeem their currency with specie. It would be sufficient for them to redeem it with the seaport currency.

8. The system is practicable for the further reason, that it can be introduced without the aid of bank charters, or special legislation of any kind. It stands wholly on common law principles; [47] and companies can go into business under it—as they go into mercantile, manufacturing, or any other business—when it suits their interest or pleasure, without asking the consent of a body of ignorant, conceited, tyrannical legislators, who assume to know what business it is, and what business it is not, best for men to engage in; instead of leaving the wants of mankind to give direction to their industry and capital.

The banks, too, when established, would be free of all special control, oversight, taxation, or interference by the government. As the banks would ask no favors of the government, in the way of charters, monopolies, or otherwise, the government would have no more excuse for specially taxing them, or for sending Commissioners to pry into, investigate, or report their affairs, than it now has for specially taxing the capital, or for sending Commissioners to pry into, investigate, or report the affairs, of merchants, manufacturers, or any other class of persons.

The fact, that the existing system requires special legislation in favor of the banks, (in the shape of charters and monopolies,) and special legislation against them, (in the shape of restrictions of various kinds, the espionage of Commissioners, &c., &c.,)—in short, the fact, that the banking business cannot be left subject only to those general laws, which are applicable to all other kinds of business, is sufficient evidence that the system is a vicious one, and ought to be abolished.

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CHAPTER V.: LEGALITY OF THE SYSTEM.

Admitting, for the sake of the argument—what is not true in fact—that the State governments have constitutional power to forbid private banking, their statutes for that purpose, being contrary to natural right, must be construed to the letter; and the letter of few, if any, of them is such as to prohibit the system here proposed.

Thus Maine prohibits “any drafts, bills, or promissory notes, or other evidences of debt.”

New Hampshire prohibits “bills, notes, checks, drafts, or obligations.”

Massachusetts prohibits “any note, bill, order, or check.”

Rhode Island prohibits “any note, bill, order, or check.”

Connecticut prohibits “any bill of credit, bond, promissory writing, or note, bill of exchange, or order.”

New York prohibits “notes, or other evidences of debt.”

New Jersey prohibits “bills, notes, or other evidences of debt.”

Pennsylvania prohibits “any promissory note, ticket or engagement of credit in the nature of a bank note.”

Ohio prohibits “any note, bill, or other evidence of debt.”

Michigan prohibits “any bills, notes, due bills, drafts, or other evidences of debt.”

Illinois prohibits “any note, or bill.”

Wisconsin prohibits “any bills, or promissory notes, or other evidences of debt.”

Mississippi prohibits “notes, bills, certificates of deposit, or evidences of debt.”

[49]

Georgia prohibits “any bills, or promissory notes of private bankers.”

The currency proposed—the Circulating Stock—comes within the letter of none of these prohibitions. It consists neither of “notes,” “promissory notes,” “orders,” “checks,” “drafts,” “bonds,” “certificates of deposit,” “bills of credit,” “bills of exchange,” “due bills,” nor “tickets or engagements of credit in the nature of bank notes.”

Although, if it should come into circulation, it may, very likely, in common parlance, and from motives of convenience, be denominated “bills,” yet it is not “bills,” in any legal sense, in which that word was used at the times these statutes were enacted.

It cannot be called “evidences of debt”—that is, of personal indebtedness—in the sense, in which this description is evidently used in these statutes.

It is not an “obligation,” in the sense, in which that word is legally used. That is to say, it is not a personal “obligation,” in the nature of a debt, as the term debt is now understood.

It is, in law, simply bona fide certificates of bona fide stocks; as really so as are any certificates of railroad stocks, or of any other stocks whatever. It is bona fide certificates of, or evidences of title to, veritable property in land, as really so, as are deeds, mortgages, leases, or any other written instruments for the conveyance of title to, or rights in, real estate. As such, it obviously comes within the letter of none of the preceding prohibitions. The holders of the certificates are the bona fide owners of the stocks, or property represented; and in selling the stocks themselves, they pass the certificates, or evidences of title. And this is the whole matter, in a legal point of view.

The statutes, however, of some of the States are in somewhat different terms from those already cited.

Thus Vermont prohibits “any bill of credit, bond, promissory writing or note, bill of exchange, order, or other paper.”

Whether this prohibition of “any other paper,” as a currency, [50] can, in law, be held to prohibit the sale of bona fide stocks, or property in land, and passing the certificates thereof, or the titles thereto, is, to say the least, very doubtful.

New Jersey, in addition to the preceding prohibition of “bills, notes, or other evidences of debt,” prohibits “any ticket of any denomination whatever, intended to circulate for the payment of debts, dues, or demands, in lieu of, or as a substitute for, bank notes or bills, or other lawful currency of the State.”

What may be the legal meaning of a “ticket,” we will not now undertake to settle; nor whether this prohibition interdicts the sale of bona fide stocks, and the transfer of the paper titles thereto.

Virginia prohibits “any note, or other security, purporting that money or other thing of value is payable by, or on behalf of, such person” (the person issuing).

This statute clearly would not interdict the currency proposed.

The letter of the statutes of Missouri, Kentucky, Tennessee, Alabama, North Carolina, and of the constitution of Texas, is, perhaps, comprehensive enough to prohibit the proposed currency.

In the statutes of Indiana, Iowa, Arkansas, Maryland, and Delaware, I have found nothing, that seemed to me to prohibit the proposed currency.

If this currency should evade the interdict of these statutes against private banking, it would also evade the interdict of the State laws against usury; for the issue of the currency by the banks, in exchange for the promissory notes of individuals, is, in law, a mere sale of bona fide stocks, or property, on credit, like the sale of any other stocks, or property, on credit, and at a price agreed on. And if these stocks should happen to sell for more than their nominal value, that would be a matter of no more legal importance than for railroad shares to sell for more than their par or nominal value.

But, admitting that the language of all the foregoing prohibitions are sufficiently comprehensive to embrace the currency [51] proposed, the statutes themselves, so far as they should be applied to that currency, would nearly all of them be unconstitutional and void, as being in conflict with the “natural right to acquire and dispose of property;” a right, that is either expressly or impliedly recognized and guaranteed by most, or all, of the State constitutions, and bills of rights. This “natural right to acquire and dispose of property,” includes a right to buy and sell, as well as to produce and give away, property. The issuing of the currency proposed, and the passing of it, from hand to hand, as a currency, would, in law, be merely a buying and selling of the property it should represent—that is to say, the buying and selling of bona fide property in land—like any other property. The only difference between it and other property, would be, that it would be bought and sold more frequently than other property.

But not only all these State laws against private banking, but all State laws against usury, and all other laws whatsoever, that assume either to prohibit, invalidate, or impair any contract whatsoever, that is naturally just and obligatory, are unconstitutional and void, as being in conflict with that provision of the constitution of the United States, which declares that “no State shall pass any law impairing the obligation of contracts.”

This provision does not designate what contracts have, and what have not, an “obligation.” It leaves that point to be ascertained, as it necessarily must be, by the judicial tribunals, in the case of each contract that comes before them. But it clearly implies that there are contracts that have an “obligation.” Any State law, therefore, which declares that such contracts shall have no obligation, is plainly in conflict with this provision of the constitution of the United States.

This provision also, by implying that there are contracts, that have an “obligation,” implies that men have a right to enter into them; for if men had no right to enter into the contracts, the contracts themselves would have no obligation.

This provision, then, of the constitution of the United States, [52] not only implies that certain contracts have an obligation, but it also implies that the people have the right to enter into all such contracts, and have the benefit of them. And any State law, conflicting with either of these implications, is necessarily unconstitutional and void.

Furthermore, the language of this provision of the constitution, to wit: “the obligation [singular] of contracts” [plural], implies that there is one and the same “obligation” to all “contracts” whatsoever, that have any legal obligation at all. And there obviously must be some one principle, that gives validity to all contracts alike, that have any validity.

The law, then, of this whole country, as established by the constitution of the United States, is, that all contracts, in which this one principle of validity or “obligation” is found, shall be held valid; and that the States shall impose no restraints upon the people’s entering into all such contracts.

All, therefore, which courts have to do, in order to determine whether any particular contract, or class of contracts, are valid, and whether the people have a right to enter into them, is simply to determine whether the contracts themselves have, or have not, this one principle of validity, or obligation, which the constitution of the United States declares shall not be impaired.

State legislation can obviously have nothing whatever to do with the solution of this question. It can neither create, nor destroy, that “obligation of contracts,” which the constitution forbids it to impair. It can neither give, nor take away, the right to enter into any contract whatever, that has that “obligation.”

But here a formidable difficulty arises. It is no less a one than this, viz.: that neither legislatures, lawyers, nor courts, know, nor even pretend to know, what “the obligation of contracts” is. That is to say, there is no one principle, known or recognized among them, by reference to which the validity or invalidity of all contracts is determined. Consequently it is not known, in the case of any single contract whatever, that is either [53] enforced or annulled, in a court of justice, whether the adjudication has really been in accordance with “the obligation” of the contract, or not. Startling, and almost terrifying, as this statement is, in view of the number and importance of the contracts, in which men’s rights are involved, and which courts are continually annulling or enforcing, the statement is nevertheless true.

The question—what is “the obligation of contracts?” has been several times before the Supreme Court of the United States; but has never received any satisfactory answer. The last time (so far as I know) that it was brought before that court, was in 1827, in the case of Ogden vs. Saunders (12 Wheaton, 213). Several among the most eminent lawyers in the country, to wit: Webster, Wirt, Wheaton, Livingston, Ogden, Jones, and Sampson, were engaged in the cause. But they all failed to enlighten the court.

The court consisted, at that time, of seven judges. Among these seven judges, four different opinions prevailed as to what “the obligation of contracts” was. Three of the judges said it was one thing; two of them said it was another; one said it was another; and one said it was another. No one opinion commanded the assent even of a majority of the court. And thus the court virtually confessed that, as a court, they did not know what “the obligation of contracts” was.

The reasonable presumption is, that no one of these opinions was correct; for if either had been correct, it would have been likely to secure the assent of the whole court, or at least of a majority.

But, although the court could not agree as to what the obligation of contracts was, four of the justices did agree in declaring that the insolvent law of New York did not impair the obligation of any contracts, that were made, in New York, subsequently to the passage of the law. To appreciate the farcical character of this conclusion, we have only to consider that, among these four justices, three different opinions prevailed as to what “the obligation” [54] was, which they said the law did not impair. And from that time until now, this ridiculous opinion of these four justices, who virtually confessed that they knew nothing of the question they assumed to decide, has stood as law throughout the country, and been received, by legislatures and courts, as sufficient authority for the State legislatures to fix, prescribe, alter, nullify, or impair, at their discretion, the obligation of any and all contracts entered into subsequently to the passage of their laws. This fact is sufficient to show that the ignorance of the Supreme Court of the United States, as to the obligation of contracts, is abundantly participated in by the legislatures and courts of the States.

The writer of this will not attempt, at this time—although he may, perhaps, at some future time—to define this constitutional “obligation of contracts,” any further than to say that it must necessarily be the natural obligation. That is, it must be the obligation, which contracts have, on principles of natural law, and natural right, as distinguished from any arbitrary, partial, or conditional obligation, which legislatures may assume to create, and attach to contracts.

This constitutional prohibition upon any law impairing the obligation of contracts, is analogous to those provisions, in both the State and National constitutions, which forbid any laws infringing “the freedom of speech or the press,” “the free exercise of religion,” and “the right to keep and bear arms.”

“The freedom of speech and the press,” which is here forbidden to be infringed, is not any merely arbitrary freedom, which legislatures may assume to create and define by statute. But it is the natural freedom; or that freedom, to which all mankind are entitled of natural right. In other words, it is such as each and every man can exercise, without invading the rights of others, and consistently with an equal freedom on the part of others.

If “the freedom,” here forbidden to be infringed, were only such freedom as legislatures might, in their pleasure or discretion, [55] see fit to institute, the prohibition, instead of protecting any “freedom of speech or the press,” would of itself imply an authority for the entire destruction of all such “freedom.”

The same is true of “the free exercise of religion,” and “the right to keep and bear arms.” If the rights, which, under these names, are constitutionally protected, instead of being the natural rights, which belong to all mankind, were only such rights as legislatures, in their pleasure or discretion, might assume to create, and grant to the people, the prohibitions themselves would impliedly authorize legislatures to destroy those very rights, which they now are commanded to hold sacred.

So, too, “the obligation of contracts,” which the States are forbidden to impair, is the natural obligation; that obligation, which contracts have of natural right, and in conformity with natural justice; and not any merely arbitrary, fantastic, absurd, or unjust obligation, which ignorant, corrupt, or tyrannical legislatures may assume to create, and attach to contracts. Otherwise this very prohibition against “any law impairing the obligation of contracts,” would allow legislatures, in their pleasure or discretion, to destroy the obligation of all contracts whatsoever.

That this constitutional “obligation of contracts” is the natural obligation, is proved by the language of the provision itself, which, as has already been said, implies that “the obligation [singular] of contracts” [plural] is one and the same obligation for all contracts whatsoever, that have any legal obligation at all. This obligation, which is the same in all obligatory contracts, must necessarily be the natural obligation, and not any artificial one prescribed by legislatures; because it would obviously be impossible for legislatures to create any one obligation, different from the natural one, and prescribe it for, or attach it to, all contracts whatsoever. Certainly no such thing was ever attempted, or thought of.

This obligation, which the States are forbidden to impair, is proved to be the natural one, by still another fact, viz.: that it is, and necessarily must be, the same in every State in the [56] Union; forasmuch as the prohibition mentions but one obligation, which the States are forbidden to impair; and the prohibition to impair that one obligation is imposed alike upon all the States. If this “obligation” were an artificial one, to be created by State legislatures, it would be liable to be different in every State, since the constitution does not authorize any one State, nor even Congress, to create any one artificial obligation, and prescribe it as a rule for all the States.

This obligation, which the States are forbidden to impair, must be the natural one, for the still further reason, that otherwise that large class of contracts—by far the largest part of all the contracts, which men enter into, and which courts recognize as valid, but in regard to which no special “obligation” has ever been prescribed by legislation—would, in the view of the constitution, have no validity or obligation at all.

Still further. Inasmuch as the natural obligation is necessarily the only real obligation, which, in the nature of things, contracts can possibly have; and inasmuch as all artificial or unnatural obligations are inevitably spurious, false, and unjust, that paramount rule of legal interpretation, which requires that a meaning favorable to justice, rather than injustice, shall be given to the words of all instruments, that will bear such a meaning, requires that “the obligation,” which the constitution forbids to be impaired, should be held to be the natural and true obligation, rather than any one of those innumerable false obligations, which legislatures are in the habit of prescribing in its stead.

Finally. Inasmuch as the artificial obligations of contracts are innumerable; and inasmuch as this constitutional provision does not particularly describe the obligation it designs to protect, that obligation must be presumed to be the natural one, or else the provision itself, on account of its indefiniteness, must utterly fail of protecting any obligation at all.

The natural obligation of a contract, then, being the only one, which courts are at liberty to regard, their first duty, on this subject, obviously is to ascertain what the natural obligation of [57] contracts is. When they shall have done this, they will have discovered an universal law for all contracts; a law, that must nullify all those State laws—absurd, vexatious, tyrannical, and unjust—with which the statute books of the States are filled, having for their objects to destroy or impair men’s natural right of making obligatory contracts, and to prescribe what obligations, different from the natural and true one, men’s contracts shall have.

Strictly speaking, courts have no rightful authority either to enforce or annul a single contract, of any name or nature whatever, until they shall have ascertained what this constitutional, or natural, obligation of contracts is. But, if they will continue to do so, it is manifestly sheer mendacity, or sheer stupidity, for them to declare that the contracts of private bankers, and contracts now termed usurious—contracts naturally obligatory as any that men ever enter into, or as any that courts ever enforce—have no obligation; or that anybody can be lawfully punished for entering into such contracts.

Furthermore, if the natural obligation of contracts is the only obligation, which courts are at liberty to regard, they are bound to disregard all those State laws, or acts of incorporation, of any and every kind, whether for banking purposes or any other, which attempt to limit the liability of stockholders to any thing less than the natural obligation of their contracts.

In short, the only constitutional power, now existing in this country, to prohibit any contract whatever, that is naturally obligatory, or to impair the natural obligation of any contract whatever, is the single power given to Congress “to establish uniform laws on the subject of bankruptcies, throughout the United States.”*

[58]

There is, therefore, no legal obstacle in the way of the immediate adoption of the banking system now proposed; nor any occasion to consult the State legislatures, or ask their permission, in the matter. Nor, in loaning the currency, will there be any occasion to pay any regard to usury laws.

[59]

PART SECOND.

[1]

ARTICLES OF ASSOCIATION OF A MORTGAGE STOCK BANKING COMPANY.

[Entered according to Act of Congress, in the year 1860, by Lysander Spooner, in the Clerk’s office of the District Court of the United States, for the District of Massachusetts.]

ARTICLE I.

This Association shall be called the Boston Banking Company.

ARTICLE II.

The Banking House of said Company shall always be in the City of Boston, in the County of Suffolk, in the State of Massachusetts.

ARTICLE III.

The Trustees of the Capital of said Association shall be A——— A———, B——— B———, and C——— C———, all of said Boston, the survivors and survivor of them, and their successors appointed as hereinafter prescribed.

[2]

ARTICLE IV.

The Capital Stock of said Company shall consist of four several mortgages, for the aggregate amount of One Hundred Thousand Dollars, and interest, made to said Trustees, as follows, to wit: One mortgage, made by F——— F———, for the sum of Ten Thousand Dollars and interest; one mortgage, made by G——— G———, for Twenty Thousand Dollars and interest; one mortgage, made by H——— H———, for Thirty Thousand Dollars and interest; and one mortgage, made by I——— I———, for Forty Thousand Dollars and interest.

Said mortgages were all entered for record, in the Registry of Deeds for said County of Suffolk, in the State of Massachusetts, on this first day of January, in the year eighteen hundred and sixty, and the following are copies thereof, to wit:

STOCK MORTGAGE.

[Entered according to Act of Congress, in the year 1860, by Lysander Spooner, in the Clerk’s office of the District Court of the United States, for the District of Massachusetts.]

Know all Men by these Presents, That I, F——— F———, of Boston, in the County of Suffolk, in the State of Massachusetts, in consideration of one dollar paid me by A——— A———, B——— B———, and C——— C———, all of said Boston, Trustees of the Boston Banking Company, the receipt of which is acknowledged, do hereby give, grant, sell, and convey unto the said A——— A———, B——— B———, and C——— C———, in their capacities as Trustees of said Boston Banking Company, [3] and to the survivors and survivor of them, and to their successors in the like capacities, and to their assigns, the following described premises, to wit.

[Here insert a description of the premises.]

Said premises are hereby conveyed to said Trustees, in trust, as a part of the Capital Stock of said Boston Banking Company, to be held, used, and disposed of by them, and their successors in the office of Trustees, in accordance, and only in accordance, with the terms of this mortgage, and the Articles of Association of said Boston Banking Company; which Articles have been this day agreed upon, by and between the said A——— A———, B——— B———, and C——— C———, Trustees, on the one hand, and me, the said F——— F———, and G——— G———, and H——— H———, and I——— I———, on the other hand.

Said Articles of Association consist of printed pages, each one of which is signed, at the bottom, by the said A——— A———, B——— B———, and C——— C———, Trustees, and also by me the grantor, and the said G——— G———, H——— H———, and I——— I———. And nine copies thereof have been made and signed as aforesaid, and one copy thereof delivered to each of all the aforenamed parties; and one copy is deposited with Lysander Spooner, of said Boston. Said Trustees are also to cause said Articles of Association, signed on the bottom of each page as aforesaid, to be immediately recorded in the Registry of Deeds for said County of Suffolk; and the copy, from which the record shall be made, shall forever remain on file in said Registry.

To have and to hold the aforegranted premises to the said A——— A———, B——— B———, and C——— C———, Trustees as aforesaid, and to the survivors and survivor of them, and their successors in office, in trust as aforesaid, and to their assigns forever.

And I the said F——— F———, for myself, my heirs, executors, and administrators, do covenant with the said grantees and their [4] successors and assigns, that I am lawfully seized in fee simple of the aforegranted premises; that they are free of all encumbrances; that I have good right to sell and convey the same to the said grantees, their successors and assigns as aforesaid; and that I will, and my heirs, executors, and administrators shall, warrant and defend the same to the said grantees, their successors and assigns forever, against the lawful claims and demands of all persons.

Provided, Nevertheless, That if the said F——— F———, his heirs, executors, administrators, or assigns, shall pay to the said A——— A———, B——— B———, and C——— C———, Trustees, the survivors or survivor of them, their successors, or assigns, the sum of Ten Thousand Dollars, within one year after demand therefor, in writing, on or after the first day of January, in the year Eighteen Hundred and Eighty; and shall also pay interest semi-annually on said ten thousand dollars, from and after this first day of January, in the year Eighteen Hundred and Sixty, at the rate of Seven per centum per annum; said interest to be paid on the first days of July and January, in each and every year; and whenever either of said days shall fall on Sunday, the interest to be paid on the Saturday next preceding; [and if it shall ever be fully, finally, and judicially determined that interest at the rate of seven per centum per annum cannot be lawfully claimed upon this contract, then this contract shall be valid for interest at the rate of only six per centum per annum;]* [5] and if interest shall ever fail to be paid on the day it shall become due, then interest shall be paid on interest, at the rate of six per centum per annum; and shall also repay to said Trustees, the survivors and survivor of them, their successors and assigns, all such sums, with interest, (at the rate of six per centum per annum,) as they may lawfully expend, in pursuance of said Articles of Association, for, and on account of, taxes, and insurance upon, and sale of, the mortgaged premises, or any part thereof; then this deed shall be void to all intents and purposes.

And provided also that, at any time after four months’ continuance of any breach of any of the foregoing conditions, the grantees, the survivors or survivor of them, their successors or assigns, may sell and dispose of the granted premises, with all improvements that may be thereon, at public auction; such sale to be in said City of Boston, without further notice or demand, except giving notice of the time and place of sale, by properly advertising the same in each of the six weeks next preceding the sale, in at least three newspapers printed in said County of Suffolk; and in his or their own names—that is to say, the Trustees as Trustees, and their assigns as assigns—or as the attorney or attorneys of the grantor or his assigns, for that purpose by these presents duly authorized, convey the same, absolutely and in fee simple, to the purchaser or purchasers accordingly; and out of the money arising from such sale, to retain all sums, principal and interest, then secured by this deed, (whether then or thereafter payable,) together with all costs and expenses, including all sums paid by said grantees, the survivors and survivor of them, their successors or assigns, for or on account of taxes and insurance on the premises; Paying the surplus, if any, to the said grantor or his assigns, or to the court ordering or confirming such sale; And such sale shall forever bar the said grantor, and all persons claiming by or under him, from all right and interest in the premises, either at law or in equity. It being mutually agreed that the said Trustees, the survivors and survivor of them, and their successors (in their capacities as [6] Trustees, and not otherwise) and their assigns, (in their individual capacity,) may purchase at said sale, and that no other purchaser shall be answerable for the application of the purchase money.

And provided further, That until default of the payment of the said Ten Thousand Dollars, or interest, or other sum herein secured to be paid, neither the grantees, nor either of them, nor their successors nor assigns shall have any right to enter and take possession of the premises.

In Witness Whereof, I, the said F——— F———, and I, C——— F———, wife of said grantor, who, for the consideration aforesaid, and of one dollar to me paid by said grantees, the receipt of which is hereby acknowledged, do hereby release to said grantees, the survivors and survivor of them, and to their successors and assigns forever, all my right of or to a homestead in or out of said real estate, and also all my right and title of or to dower in the granted premises, have hereunto set our hands and seals, this first day of January, in the year Eighteen Hundred and Sixty.

Signed, sealed, and delivered, in presence of }

F———

F———.

[SEAL.]

R———

R———. }

C———

F———.

[SEAL.]

S———

S———. }

[Here insert copies of the other Mortgages.]

ARTICLE V.

Said Capital Stock shall be divided into One Thousand Shares, of One Hundred Dollars each. These shares shall be numbered consecutively, from one to one thousand, inclusive. They are hereby declared to be the property of the aforesaid mortgagors, and shall be apportioned among them, according to [7] the amounts of their respective mortgages aforesaid, as follows, to wit: One Hundred Shares, numbered consecutively, from one to one hundred, inclusive, shall be the property of the said F——— F———; Two Hundred Shares, numbered consecutively, from one hundred and one to three hundred, inclusive, shall be the property of the said G——— G———; Three Hundred Shares, numbered consecutively from three hundred and one to six hundred, inclusive, shall be the property of the said H——— H———; and the remaining Four Hundred Shares, numbered consecutively from six hundred and one to one thousand, inclusive, shall be the property of the said I——— I———. And the aforesaid stock shall be entered upon the books of the Trustees as the property of the said F——— F———, G——— G———, H——— H———, and I——— I———, according to the apportionment aforesaid.

ARTICLE VI.

The aforesaid one thousand shares of Stock shall be called the Productive Stock, and shall be entitled to all the dividends.

ARTICLE VII.

The dividends shall consist of the interest on said mortgages, and the profits of the banking, and of any other business, done by said Company.

ARTICLE VIII.

In addition to the said Productive Stock, the said Trustees shall create another Stock, to the amount of One Hundred Thousand Dollars, to be called Circulating Stock; which Circulating Stock shall be divided into shares of One Dollar each. Said shares shall be numbered consecutively from one [8] to one hundred thousand, inclusive; and certificates, scrip, or bills thereof, transferable by delivery, and making and declaring said Circulating Stock to be the property of the bearers or holders of said certificates, scrip, or bills, shall be made and signed by the Trustees, and countersigned by the President of the Council, and by the Cashier.

ARTICLE IX.

Said Circulating Stock shall be entitled to no dividends; and its value will consist wholly in its title to be received in payment of any debts due to said Boston Banking Company, and in its title to be otherwise redeemed, as is hereinafter provided for. In law, it shall be in the nature of a lien upon the Productive Stock.

ARTICLE X.

The said certificates, scrip, or bills of said Circulating Stock may be of various denominations; that is to say, for any number of shares, from one to one hundred; and each certificate, scrip, or bill shall not only express the aggregate number of shares it represents, but also the particular number borne by each share represented.*

All certificates, scrip, or bills of said Circulating Stock shall be in the following form, (names and dates being changed when necessary, and the numbers also being made to correspond with the aggregate number of shares, and the particular number of each share, represented in each certificate,) to wit.

[9]

$5.

MORTGAGE STOCK CURRENCY.

$5.

[Entered according to Act of Congress, in the year 1880, by Lysander Spooner in the Clerk’s office of the District Court of the United States, for the District of Massachusetts]

CERTIFICATE No. 173....FIVE SHARES of CIRCULATING STOCK, numbered 151, 152, 153, 154, and 155 [respectively—or—consecutively, from 151 to 155, inclusive].* ONE DOLLAR PER SHARE.

Boston, }

BOSTON BANKING COMPANY.

{ Suffolk Co. Massachusetts.

Be it Known, That the Bearer is the Proprietor of FIVE SHARES of the Circulating Stock of the BOSTON BANKING COMPANY; which Shares, numbered as above, are of the nominal value of FIVE DOLLARS, and are entitled to be received at that value, in payment of any debts due to said Company, and also to be redeemed by the Transfer of Productive Stock, or otherwise, according to the provisions of the Articles of Association of said Company, which bear date January 1st, 1860.

Boston, March 1st, 1860.

A———

A———. }

Trustees of the Boston Banking Company.

B———

B———. }

C———

C———. }

D———

D———,

President of Council.

E———

E———,

Cashier.

FIVE. }

Capital $100,000, in Mortgages bearing Seven per cent. interest. Secondary Stockholders are paid Six per cent. Dividends. Productive Stock, $100 per Share.

{ FIVE.

[10]

ARTICLE XI.

No certificates, scrip, or bills of said Circulating Stock, for a greater amount, in the aggregate, than One Hundred Thousand Shares, shall ever be made and signed by the Trustees, President, or Cashier, so as to be in existence at any one time; but if any of said certificates, scrip, or bills shall, at any time, be cancelled or destroyed, either by the Trustees, or any other persons, new certificates, scrip, or bills may be substituted therefor, except when a corresponding amount of Productive Stock shall also have been cancelled, as hereinafter authorized.

CHAPTER XII.

The Trustees (subject to the conditions hereinafter prescribed) may issue said certificates, scrip, or bills of the Circulating Stock, for circulation as a Currency, by discounting therewith, or exchanging them for, such promissory notes, checks, drafts, orders, bills of exchange, or other securities, as the Trustees and Council may see fit to accept; also by purchasing therewith such furniture, books, and other personal property as said Company may need to purchase, for the purposes of its business as a banking company; also by paying any debts that may at any time be due by said Company, and any expenses that said Company may lawfully incur, in the course and prosecution of its said business.

ARTICLE XIII.

The said certificates, scrip, or bills of said Circulating Stock, shall, at all times, be a lawful tender, at its nominal value of One Dollar per share, in payment of any debts due to said Boston Banking Company. They shall also, at all times, (except as [11] hereinafter provided for, in Article XXIV,) when presented in even amounts of One or more Hundred Shares, be entitled to be redeemed, on demand, by the transfer of an equivalent nominal amount of Productive Stock, unless redeemed by the payment of gold or silver coin of equivalent nominal value.

ARTICLE XIV.

The original holders of the Productive Stock, to wit: the aforesaid F——— F———, G——— G———, H——— H———, and I——— I———, shall be termed Primary Stockholders.

ARTICLE XV.

All persons, who shall hold Productive Stock by transfer, in redemption of Circulating Stock, shall be called Secondary Stockholders; that is to say, unless and until they shall become Primary Stockholders, in the manner hereinafter provided for in Article XXI.

ARTICLE XVI.

The Secondary Stockholders shall be entitled to receive Dividends on their stock, at the rate of six per centum per annum—no more, no less—payable semi-annually, on the regular dividend days, at the Banking House of said Company.

ARTICLE XVII.

The Primary Stockholders shall be entitled to receive whatever dividends may remain to be distributed, after the dividends to the Secondary Stockholders shall have been paid, and all other liabilities and obligations of the Company shall have been cancelled—whether such dividends (to the Primary Stockholders) shall amount to more or less than six per centum per annum.

[12]

ARTICLE XVIII.

Whenever it shall be necessary to transfer a share of Productive Stock, in redemption of Circulating Stock, the share to be transferred shall be selected, by the Trustees, from such shares (if any there shall be) as shall have been taken, by said Company, in payment of debts of delinquent stockholders, or be otherwise owned by said Company, in its corporate capacity.

But if, at any time, when it shall be necessary to transfer Productive Stock, in redemption of Circulating Stock, there shall be no Productive Stock owned by the Company, in its corporate capacity, a selection of the stock to be transferred, shall be made, by the Trustees, from among the stock of the several Primary holders, in the most impartial and equitable manner practicable, taking stock, in the first instance, from the largest Primary holders, rather than from the smallest, and afterwards apportioning the stock, taken for such purposes, equitably as may be, among the several Primary holders, according to the amounts of their stock respectively.* And no Productive Stock, holden by a Secondary holder, shall ever be transferred in redemption of Circulating Stock.

ARTICLE XIX.

Whenever any Productive Stock, less than the entire Productive Stock of the Company, shall have been transferred, in redemption of Circulating Stock—that is to say, so long as any portion of the Productive Stock shall remain in [13] the hands either of Primary holders, or of the Company in its corporate capacity—said Company shall have the right to buy back, from the Secondary holder or holders, any and all such transferred stock, by paying therefor, at the banking house of the Company, gold or silver coin of equivalent nominal value, and interest or dividends thereon, at the rate of six per centum per annum, from the time said stock was thus transferred. And, for this purpose, any dividend, that may have been paid to the Secondary holder, since the transfer of the stock to him, and previous to the re-purchase of it from him, shall be accounted the same as if paid at the time of such re-purchase.

ARTICLE XX.

Whenever any Productive Stock, belonging to a Primary holder, shall have been transferred by the Company, in redemption of Circulating Stock, no dividends shall be paid to any of the then existing body of Primary holders, until such transferred stock shall have been bought back by the Company, and restored to the Primary holder, from whom it shall have been taken, or to his representatives, and placed on the same footing, in regard to dividends, with all the other Productive Stock of the Primary holders.

ARTICLE XXI.

Whenever, if ever, it shall happen that the entire Productive Stock of said Company shall have been transferred, from the first body of Primary holders, (including, as such, the Company in its corporate capacity,) in redemption of Circulating Stock, all the rights of the then existing body of Primary holders, and especially their right to buy back such transferred stock, from the Secondary holders, shall at once cease and become extinct; and the then existing body of Secondary holders shall, [14] each and all, by reason, and in virtue, of that event, succeed at once to all the rights, and come at once under all the responsibilities, of Primary Stockholders; and shall be deemed to be Primary Stockholders, both in law, and in fact. And the business of the Company shall then proceed as at first. And if it shall ever happen that the entire Productive Stock of said Company shall be transferred from this second body of Primary Stockholders, in redemption of Circulating Stock, all the rights of said second body of Primary Stockholders shall at once cease and become extinct; and the then existing (second) body of Secondary Stockholders shall, each and all, by reason, and in virtue, of that event, succeed at once to all the rights, and come at once under all the liabilities, of Primary Stockholders; and shall be deemed to be Primary Stockholders, both in law, and in fact. And the same transfer of rights and liabilities, from one body of Primary Stockholders, to the then existing body of Secondary Stockholders, shall take place so often as, and whenever, the entire Productive Stock of said Company shall have been transferred in redemption of the Circulating Stock.*

ARTICLE XXII.

Whenever a body of Secondary Stockholders shall have become Primary holders, in the manner provided for in Article XXI, no dividend shall be paid to any one of them, until he shall have surrendered his certificate or certificates of stock as a Secondary [15] holder, and accepted a new certificate, or new certificates, of stock, as a Primary holder. And such new certificate or certificates shall be granted to him on demand, and on the surrender of his certificate or certificates as a Secondary holder.

ARTICLE XXIII.

The Trustees may accept loans from the Primary Stockholders, whenever it may be necessary or convenient, in order to save the Productive Stock from being transferred in redemption of the Circulating Stock; such loans to be repaid only in the manner, and in the order relatively to other claims, hereinafter provided for in Article XXIX.

And if any Primary holder or holders of Productive Stock shall loan, to the Company, his or their just proportion of the amount necessary to save all the Productive Stock from being transferred in redemption of the Circulating Stock, his or their own Productive Stock shall be exempted from such transfer, so long as it can be, consistently with the rights of the holders of Circulating Stock.

But if a loan shall ever be made to the Company, by a Primary Stockholder, and, before such loan shall be repaid, the entire Productive Stock of the Company shall have been transferred to Secondary holders, in redemption of Circulating Stock, as mentioned in Article XXI, such Primary Stockholder’s claim to have his loan repaid to him, shall be forfeited.*

ARTICLE XXIV.

The requirement, in Article XIII, that certificates, scrip, or bills of Circulating Stock, in even amounts of one or more hundred shares, shall be redeemed by coin or Productive Stock, [16] on demand, shall be understood subject to this proviso, viz.: that whenever any certificates, scrip, or bills of Circulating Stock, in even amounts of one or more hundred shares, shall be presented by the holder thereof, to the Company, for redemption, and the Company shall elect to pay interest on them semi-annually, at the banking house of the Company, on the regular dividend days, at the rate of six per centum per annum, rather than redeem them by coin or Productive Stock, they shall be at liberty to do so. But if said Company shall at any time fail to pay said semi-annual interest, on the day it shall become due, the holder of said certificates, scrip, or bills may at once demand their redemption, either in gold or silver coin, or in Productive Stock, at the option of the Company; and the interest, that shall have accrued, shall be due and payable at once, in gold and silver coin.

Provided, however, that unless the presentation of said certificates, scrip, or bills for redemption, shall have been made at least four months prior to the next succeeding dividend day, the interest, which shall have accrued on such certificates, scrip, or bills, on the first dividend day next after their presentation, shall not be payable, except at the option of the Company, until the second dividend day next after their presentation.

ARTICLE XXV.

Whenever certificates, scrip, or bills of Circulating Stock, in even amounts of one or more hundred dollars, shall have been presented for redemption, and the Company shall have elected to pay interest on them, as provided for in Article XXIV, rather than redeem them by coin or Productive Stock, the holder thereof shall have the right to deposit his said certificates, scrip, or bills with said Company, and to demand a proper voucher therefor, specifying the amount and date of the deposit, and acknowledging that said certificates, scrip, or bills were presented [17] for redemption. And the certificates, scrip, or bills, thus deposited, shall be immediately sealed up in a secure envelope, upon which the name of the depositor, and the amount, date, and purpose of the deposit (that is, for redemption) shall be endorsed by said Company. And the seal of said envelope shall not be broken by said Company, nor any of its officers, without the consent of said depositor, or his representatives, given in writing, until said Company shall have made a tender of redemption and interest, as provided for in Articles XIII and XXIV. And the Company shall be responsible to said depositor, and his representatives, for the safe keeping of said deposit against all accidents, trespasses, and contingencies, of every name and nature whatsoever, until they shall have made the tender aforesaid.*

Provided, however, that if any depositor, or his representatives, shall withdraw his or their deposit at any time prior to the day on which interest thereon would become payable, neither he nor they shall have any claim for interest during the time of the deposit.

ARTICLE XXVI.

If, when the holder of certificates, scrip, or bills of Circulating Stock, in even amounts of one or more hundred shares, shall have presented them for redemption, and the Company shall have elected to pay interest on them, as mentioned in Article XXIV, he shall prefer to retain them in his own custody, rather than deposit them with said Company, he shall be at liberty to do so, without affecting his rights, as provided for in said Article, except that the Company shall not be responsible for the safe keeping of said certificates, scrip, or bills. And he shall have a right to demand of said Company that they seal up said certificates, [18] scrip, or bills, in a secure envelope, and endorse thereon the amount of said certificates, scrip, or bills, and the date and purpose of their presentation, (that is, for redemption,) and the name of the owner thereof, and then return to himself the parcel so sealed up and endorsed. And he shall also have the right to demand of said Company a separate and proper voucher of the amount of said certificates, scrip, or bills, and the date and purpose of their presentation.

Provided, however, that if, when a sealed parcel of certificates, scrip, or bills shall have been presented for redemption, and then sealed up, and returned to the owner, he or his representatives shall break the seal of said parcel, so as to admit of his or their having taken out or used any of the certificates, scrip, or bills, he and they shall thereby forfeit all claim to interest on the whole parcel.*

[19]

ARTICLE XXVII.

Certificates, scrip, or bills of Circulating Stock, in less amounts than one hundred dollars, besides being receivable in payment of debts due to the Company, may be redeemed by gold and silver coin, on demand, if the Trustees shall deem it expedient, and if there shall be no other claims having a preference, by virtue of Article XXIX. But if there shall be any delay in the redemption, whether it shall be caused by the Trustees deeming it inexpedient to redeem in gold or silver on demand, or by there being other claims having a preference, by virtue of Article XXIX, then interest, at the rate of six per centum per annum, shall be paid, at the banking house of the Company, on all amounts of fifty shares and upwards, from and after one month after the day of presentation; said interest to be payable only at the time of redemption of the principal, unless by consent of the Company. But amounts of less than fifty shares, shall be entitled to no interest.

[20]

The amounts thus presented for redemption, in order to be entitled either to interest, or to redemption in gold or silver, shall be deposited with the Company, and a proper voucher therefor given by the Company. And if the deposit shall be withdrawn before redemption, all interest thereon shall be forfeited.

The Circulating Stock, thus deposited for redemption, shall neither be loaned, nor re-issued, by the Company, until it shall have been redeemed. But it shall be sealed up in a secure envelope, and the amount, date, and purpose of the deposit, (that is, for redemption,) with the name of the depositor, endorsed thereon. And the seal of the envelope shall not be broken by the Company, until they shall have tendered redemption in gold or silver coin, of equivalent nominal value, with interest where interest shall be due. And the Company shall be responsible to said depositor, and his representatives, for the safe keeping of said deposit, against all accidents, trespasses, and contingencies, of every name and nature whatsoever, until they shall have made the tender aforesaid. And said deposit shall be redeemed, in the order in which it stands, relatively to other claims, in Article XXIX.*

[21]

ARTICLE XXVIII.

Productive Stock may be bought back from the Secondary holders, and Circulating Stock (presented and waiting for redemption) may be redeemed, by the Company, on the regular semi-annual dividend days, without giving any previous notice to the holders of such stock.

But if the Company shall ever buy back Productive Stock from the Secondary holders, or shall ever redeem Circulating Stock (that shall have been presented, and be waiting for redemption) at any time other than on a regular semi-annual dividend day, they shall give the holder of such Productive or Circulating Stock reasonable notice thereof beforehand, if he or his known attorney, shall be a resident of the State of Massachusetts, to the end that he or his attorney may have opportunity to be present, and receive the money for his stock at the time it shall be tendered.

ARTICLE XXIX.

All the resources of said Company (including the interest on the mortgages) shall be applied in, and only in, the following manner, giving preference to each of the several classes of claims, liabilities, and obligations, in the order in which they are here enumerated, to wit:

1. To the payment, in full, of all the necessary and current expenses of the Company, and any and all liabilities and obligations, of every name and nature whatsoever, except those hereafter enumerated in this Article.

2. To the payment, in full, of all interest due on certificates, scrip, or bills of Circulating Stock, that shall have been presented, in even amounts of one or more hundred shares, for redemption, and not been redeemed.

[22]

3. To the payment, in full, of a semi-annual dividend, of six per centum per annum, on all such Productive Stock, as shall be in the hands of Secondary Stockholders.

4. To the redemption of all such certificates, scrip, or bills of the Circulating Stock, as shall have been presented, in even amounts of one or more hundred shares, and be waiting for redemption.

5. To the redemption of all Circulating Stock, presented and waiting for redemption, in amounts less than one hundred shares; with interest where interest shall be due.

6. To the re-purchase of all such Productive Stock, as shall be in the hands of Secondary holders.

7. To the payment of all loans made to the Company by the Primary Stockholders, with interest on the same, at a rate agreed on, not exceeding six per centum per annum.

8. To the payment of the regular salaries of the Trustees, (independently of their share of the profits,) and any compensation that may be allowed to the President of the Council.

9. To the payment of all dividends, made up exclusively of interest on the mortgages, to the Primary Stockholders.*

10. To the payment of dividends, made up exclusively of profits, to the Primary Stockholders, and to the Trustees their proportion of the profits.*

And especially no dividends, made up either of interest or profits, shall ever be paid to the Primary Stockholders, until all the other expenses, liabilities, obligations, interest, and dividends (to Secondary Stockholders) before mentioned to be paid, [23] shall have been paid in full; and all the Circulating Stock, presented and waiting for redemption, shall have been redeemed; and all Productive Stock, in the hands of Secondary holders, shall have been re-purchased, and restored to its Primary holders.

ARTICLE XXX.

The Trustees, or any two of them, or the sole Trustee, if at any time there should be but one, of said Boston Banking Company, are and is hereby authorized and empowered to transfer so much Productive Stock of the Primary Stockholders, in redemption of the Circulating Stock of said Company, as it may become necessary or proper to transfer for that purpose.

And whenever Productive Stock is to be thus transferred, from a Primary Stockholder, in redemption of Circulating Stock, the transfer shall be made upon a book kept for that purpose, and in the form following, (names, dates, and numbers being made to correspond with the facts in each case,) to wit:

Transfer of Productive Stock in Redemption of Circulating Stock.

[Entered according to Act of Congress, in the year 1860, by Lysander Spooner, in the Clerk’s office of the District Court of the United States, for the District of Massachusetts.]

BOSTON,}

BOSTON BANKING COMPANY.

{SUFFOLK CO. Massachusetts.

Transfer No. 115. Ten Shares. Nominal value, $1000.

From O——— O———, Primary Stockholder.

To P——— P———, Secondary Stockholder.

Know all Men, That we, A——— A———, B——— B———, and C——— C———, Trustees [or I, A——— A———, sole Trustee] of the Boston Banking Company, by virtue of the power granted [24] us [or me] by the Articles of Association of said Company, dated January 1st, 1860, do hereby transfer, and have hereby transferred, Ten shares of the Productive Stock of said Company, from O——— O———, the Primary holder thereof, to P——— P———, of ———, in the County of ———, in the State of ———, in redemption of an equivalent nominal amount of the Circulating Stock of said Company. Said shares are numbered 101, 102, 103, 104, 105, 106, 107, 108, 109, and 110 respectively, [or—consecutively from 101 to 110 inclusive,] and are to be holden by said P——— P———, as a Secondary Stockholder, and subject to the provisions of said Articles of Association, and especially subject to the right of said Company to re-convey any or all of said shares to the said O——— O———, or his representatives, whenever said Company shall have tendered or paid to said P——— P———, or his representatives, in gold or silver coin, the full nominal value of the share or shares to be so re-conveyed, with all such interest and dividends thereon as shall be due at the time of such re-conveyance.

Dated at Boston, this——— day of———, 1860.

A———

A———. }

Trustees of the Boston Banking Company.

B———

B———. }

C———

C———. }

E——— E———, Cashier.

ARTICLE XXXI.

The Trustees, or any two of them, or the sole Trustee, if at any time there shall be but one, of said Boston Banking Company, are and is hereby authorized and empowered to re-convey any and all Productive Stock of the Secondary Stockholders, to the Primary holders, from whom it shall have been taken, or to their representatives, upon paying or tendering to said Secondary Stockholders, at the banking house of said Company, [25] in gold or silver coin, the full nominal value of the Productive Stock so re-conveyed, with all such interest or dividends thereon as may be due at the time of such re-conveyance.

And whenever Productive Stock is to be re-conveyed from a Secondary Stockholder to the Primary Stockholder, from whom it shall have been taken, or to his representatives, the re-conveyance shall be made upon a book kept for that purpose, and in the form following, (names, dates, and numbers being made to correspond with the facts in each case,) to wit:

Re-conveyance of Productive Stock from a Secondary to a Primary Stockholder.

[Entered according to Act of Congress, in the year 1860, by Lysander Spooner, in the Clerk’s office of the District Court of the United States, for the District of Massachusetts.]

BOSTON, }

BOSTON BANKING COMPANY.

{SUFFOLK CO.

{ Massachusetts.

Re-conveyance No. 28. Six Shares. Nominal value, $600.

From

P———

P———,

Secondary Stockholder.

To

O———

O———,

PRIMARY STOCKHOLDER.

Know all Men, That we, A——— A———, B——— B———, and C——— C———, Trustees [or I, A——— A———, sole Trustee] of the Boston Banking Company, by virtue of the power granted us [or me] by the Articles of Association of said Company, dated January 1st, 1860, do hereby re-convey, and have hereby re-conveyed, Six shares of the Productive Stock of said Company, from P——— P———, a Secondary holder thereof, to O——— O———, the Primary holder thereof; having tendered [or paid] [26] to said P——— P———, in gold or silver coin, the full nominal value of said Six shares, and all interest and dividends due thereon, up to this date. Said shares are numbered 101, 102, 103, 104, 105, and 106, respectively, [or—consecutively from 101 to 106 inclusive,] and were transferred from said O——— O———, to said P——— P———, on the ——— day of ———, 1860, in redemption of Circulating Stock.

Dated at Boston, this ——— day of———, 1860.

A———

A———. }

Trustees of the Boston Banking Company.

B———

B———. }

C———

C———. }

E——— E———, Cashier.

ARTICLE XXXII.

Whenever Productive Stock shall be transferred, by the Trustees, in redemption of Circulating Stock, credit for the same shall be given, in a book kept for that purpose, to the Primary Stockholder, from whom it shall have been taken. And when such Productive Stock, or any part thereof, shall be re-conveyed to such Primary Stockholder, or to his representatives, the proper debit shall be entered against the original credit.

ARTICLE XXXIII.

The Trustees shall grant to each and every Primary Stockholder, a certificate, or certificates, for his or her Productive Stock, in the following form, (names, dates, and numbers being made to correspond with the facts in each case,) to wit:

[27]

Primary Stockholder’s Certificate of Productive Stock OF THE FOLLOWING NAMED MORTGAGE STOCK BANKING COMPANY.

[Entered according to Act of Congress, in the year 1860, by Lysander Spooner, in the Clerk’s office of the District Court of the United States, for the Distric of Massachusetts.]

Capital Stock, $100,000:

In Mortgages bearing Seven per Cent. Interest.

Productive Stock, $100 per Share.

BOSTON,}

BOSTON BANKING COMPANY.

{ SUFFOLK CO.

{ Massachusetts.

Certificate No. 64. Seven Shares. Nominal value, $700.

Be it Known, That F——— F———, of Boston, in the County of Suffolk, in the State of Massachusetts, is the proprietor, and a Primary holder, of Seven Shares of the Productive Stock of the Boston Banking Company: a Mortgage Stock Banking Company, having their Banking House at Boston, in the County of Suffolk, in the State of Massachusetts; which shares are numbered 91, 92, 93, 94, 95, 96, and 97, respectively [or—consecutively from 91 to 97 inclusive], and are of the nominal value of Seven Hundred Dollars, and are holden by said F——— F———, as a Primary holder, and subject to the provisions of the Articles of Association of said Boston Banking Company, dated January 1st, 1860; and are transferable only by written assignment, of the form subjoined; the transfer to be complete only on the assignment being recorded in the books of [28] the Company, and the surrender of this certificate, when a new one will be issued.

Dated at said Boston, this tenth day of August, 1860.

A———

A———. }

Trustees of the Boston Banking Company.

[SEAL.]

B———

B———. }

C———

C———. }

E——— E———, Cashier.

To the above certificate shall be added a blank conveyance, in the following form, (names, dates, and numbers being made to correspond with the facts in each case,) to wit:

Primary Stockholder’s Sale of Productibe Stock OF THE FOLLOWING NAMED MORTGAGE STOCK BANKING COMPANY.

[Entered according to Act of Congress, in the year 1860, by Lysander Spooner, in the Clerk’s office of the District Court of the United States, for the District of Massachusetts.]

Capital Stock, $100,000:

In Mortgages bearing Seven per Cent. Interest.

Productive Stock, $100 per Share.

BOSTON, }

BOSTON BANKING COMPANY.

{SUFFOLK CO.

{ Massachusetts.

———Shares. Nominal value, $———.

Know all Men, That I, ———, of ———, in the County of ———, in the State of ———, being the true owner, and a Primary holder of ——— Share of the Productive Stock [29] of the Boston Banking Company: a Mortgage Stock Banking Company, having its Banking House in Boston, in the County of Suffolk, in the State of Massachusetts; which share, ——— numbered ——— respectively, [or—consecutively from ——— to ——— inclusive,] for value received, have given, granted, sold, and assigned, and do hereby give, grant, sell, and assign to ———, of ———, in the County of ———, in the State of ———, ——— heirs and assigns forever, the said ——— share of Productive Stock, and all my right, title, interest, and property in and to the same. To have and to hold the same to the said ———, ——— heirs and assigns, as Primary holders thereof, to their sole use and benefit, subject only to the Articles of Association of said Company; which Articles are dated January 1st, 1860.

Witness my hand and seal, this ——— day of ———, in the year 18—.

Witness.

seal.

Boston, ———, 18—. Recorded in the book of Sales of Productive Stock by Primary Stockholders, No. ———, Page ———.

E——— E———, Cashier.

ARTICLE XXXIV.

The Trustees shall grant to each and every Secondary Stockholder a certificate, or certificates, for his or her Productive Stock, in the following form, (names, dates, and numbers being made to correspond with the facts in each case,) to wit:

[30]

Secondary Stockholder’s Certificate of Productive Stock OF THE FOLLOWING NAMED MORTGAGE STOCK BANKING COMPANY.

[Entered according to Act of Congress, in the year 1860, by Lysander Spooner, in the Clerk’s office of the District Court of the United States, for the District of Massachusetts.]

Capital Stock, $100,000:

In Mortgages bearing Seven per Cent. Interest.

Productive Stock, $100 per Share.

Secondary Stockholders are paid Dividends of Six per cent. per annum.

BOSTON, }

BOSTON BANKING COMPANY.

{ SUFFOLK CO.

{ Massachusetts.

Certificate No. 25. Nine Shares. Nominal value, $900.

Be it Known, That L——— L———, of Roxbury, in the County of Norfolk, in the State of Massachusetts, is a Secondary holder of Nine Shares of the Productive Stock of the Boston Banking Company: a Mortgage Stock Banking Company, which has its Banking House at Boston, in the County of Suffolk, in the State of Massachusetts; which shares are numbered 31, 32, 33, 34, 35, 36, 37, 38, and 39, respectively, [or—consecutively from 31 to 39 inclusive,] and are of the nominal value of Nine Hundred Dollars; and are holden by said L——— L———, as a Secondary holder, subject to the provisions of the Articles of Association of said Boston Banking Company, [31] dated January 1st, 1860; and are transferable only by a written assignment of the form subjoined; the transfer to be complete only on the assignment being recorded in the books of the Company, and the surrender of this certificate, when a new one will be issued.

Dated at said Boston, this 20th day of March, 1860.

A———

A———. }

Trustees of the Boston Banking Company.

[SEAL.]

B———

B———. }

C———

C———. }

E——— E———, Cashier.

To the above certificate shall be added a blank conveyance in the following form, to wit:

Secondary Stockholder’s Sale of Productive Stock OF THE FOLLOWING NAMED MORTGAGE STOCK BANKING COMPANY.

[Entered according to Act of Congress, in the year 1860, by Lysander Spooner, in the Clerk’s office of the District Court of the United States, for the District of Massachusetts.]

Capital Stock, $100,000:

In Mortgages bearing Seven per Cent. Interest.

Productive Stock, $100 per Share.

Secondary Stockholders are paid Dividends of Six per cent. per annum.

BOSTON, }

BOSTON BANKING COMPANY.

{ SUFFOLK CO.

{ Massachusetts.

——— Shares. Nominal value, $———.

Be it Known, That I, ———, of ———, in the County of ———, in the State of ———, being the true owner, and a [32] Secondary holder of —— share of Productive Stock of the Boston Banking Company: a Mortgage Stock Banking Company, having its Banking House in Boston, in the County of Suffolk, in the State of Massachusetts; which share, —— numbered ——— respectively, [or—consecutively from —— to —— inclusive] for value received, do hereby give, grant, sell, and assign, and have hereby given, granted, sold, and assigned, to ———, of ———, in the County of ———, in the State of ———, all my right, title, interest, and property in and to the said —— share of Productive Stock.

To have and to hold the same to the said ———, ——heirs and assigns, as Secondary holders, and not otherwise, to their sole use and benefit, subject only to the Articles of Association of said Boston Banking Company; which Articles are dated January 1st, 1860.

Witness my hand and seal, this ——— day of ———, in the year 18—.

Witness.

seal.

Boston, ———, 18—. Recorded in the book of Sales of Productive Stock by Secondary Stockholders, No. ——, Page ——.

E——— E———, Cashier.

ARTICLE XXXV.

Whenever Productive Stock of said Company shall have been transferred to, and be in the hands of, a Secondary Stockholder, and the Primary Stockholder, from whom it shall have been taken, or his representatives, shall wish to convey all his or their right and property in it, and all his or their right and claim to have it re-purchased and restored to him or them by [33] the Company, the conveyance of such right, property, and claim shall be made in the following form, (names, dates, and numbers being made to correspond with the facts in each case,) to wit:

Sale, by a Primary Stockholder, OF HIS RIGHT TO PRODUCTIVE STOCK IN THE HANDS OF A SECONDARY STOCKHOLDER.

[Entered according to Act of Congress, in the year 1860, by Lysander Spooner, in the Clerk’s office of the District Court of the United States, for the District of Massachusetts.]

Capital Stock, $100,000:

In Mortgages bearing Seven per Cent. Interest.

Productive Stock, $100 per Share.

BOSTON, }

BOSTON BANKING COMPANY.

{ SUFFOLK CO.

{ Massachusetts.

Twelve Shares. Nominal value, $1,200.

Whereas, on or before the tenth day of September, 1860, Twelve Shares of the Productive Stock of the Boston Banking Company, (a Mortgage Stock Banking Company, having its Banking House in Boston, in the County of Suffolk, and State of Massachusetts,) being then the property of F——— F———, of ———, in the County of ———, in the State of ———, as a Primary holder thereof, and being numbered 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, and 74, respectively, [or—consecutively from 63 to 74 inclusive,] were transferred, by the Trustees of said Company, from said F—— F——, to K—— K——, of ———, in the County of ———, in the State of ———, in redemption of Circulating Stock; and are now holden by said [34] K——— K———, his heirs or assigns, as Secondary holder or holders thereof.

And whereas said Company are bound by the Articles of Association of said Company, (dated January 1st, 1860,) to re-purchase said shares of Productive Stock, and restore them to said F——— F———, or his representatives, if the resources of said Company will enable them to do so consistently with said Articles of Association.

And whereas, as will appear by the records of said Company, I, M——— M———, of ———, in the County of ———, in the State of ———, now have, hold, and possess, all the rights in said shares of Productive Stock, which he, the said F—— F——, or his representatives can have, hold, or possess, to wit,—the right and claim to have said shares re-purchased by said Company, and restored to the Primary holder thereof, his heirs or assigns, provided such re-purchase can be made consistently with said Articles of Association.

Now, therefore, be it known that I, the said M——— M———, for value received, have given, granted, sold, and assigned, and do hereby give, grant, sell, and assign to S——— S———, of ——, he County of ——, in the State of ——, all my right, title, and interest in said Twelve Shares of Productive Stock, and all my right and claim to have the same re-purchased and restored to me by said Company. And I hereby request, authorize, and require the Trustees of said Boston Banking Company, whenever (if ever) they shall re-purchase said shares, or any of them, from the Secondary holder thereof, to convey the same to the said S——— S———, his heirs or assigns, instead of restoring them to myself, my heirs or assigns. To have and to hold the same to the said S——— S———, his heirs and assigns forever, as Primary holders thereof.

Witness my hand and seal, this ——— day of ———, in the year 18—.

M——— M———. seal.

Witness Y——— Y———.

[35]

Boston, October 10, 18—. Recorded in the book of Sales by Primary Stockholders, of their Right to Productive Stock in the hands of Secondary Stockholders, No. ——, Page ——.

E——— E———, Cashier.*

And such sale shall not be complete until the above Deed shall be recorded by the Company, in a book kept by them for that purpose. Nor shall any dividend be paid to the grantee, named in said Deed, until the Deed shall have been recorded as aforesaid, and a new certificate or certificates for the stock issued to him.

ARTICLE XXXVI.

The Trustees are hereby authorized, and if, in their judgment, it shall be necessary or expedient, they are required, to pay the taxes on any or all the mortgaged estates before mentioned, and to keep all buildings and fixtures on each of said estates, insured, at the expense of each estate respectively, for the benefit of said Company. And the amount of such taxes, and the expense of such insurance, and all necessary and proper expenses, incurred by the Company, in and about such insurance, and in recovering the amount insured (having been first paid or assumed by the Company), shall be payable to the Company, by the mortgagor, or his representatives (the holders of the mortgaged estate) with interest (at the rate of six per centum per annum) on the day on which his or their next semi-annual interest on the mortgage shall become due.

Any moneys recovered by the Company on the insurance of any mortgaged estate before mentioned, shall be applied in the following manner, to wit:

[36]

1. To the payment of all expenses, incurred by the Company, for, or on account of, such insurance, or in recovering the amount insured; and also the amount paid as taxes, with interest on all such sums from the time they were paid.

2. To the payment of any interest that may be due, and remaining unpaid, upon the mortgage of said estate.

Of the sum, if any, then remaining of said insurance money, one or more of the following dispositions shall be made, at the discretion of the Trustees, to wit:

3. If the then present holder or holders of the mortgaged estate, shall be a Primary holder or holders of any Productive Stock, the Trustees may cancel the same, and pay over to him or them an equivalent nominal amount of the insurance money, provided they can do so without injustice to any one, and especially without throwing any unjust or unequal burdens upon the other Primary holders.

And if any profits or dividends shall be equitably due, on the Productive Stock thus cancelled, they shall be paid.

4. Or the said insurance money may be appropriated to the use of the Company, and in consideration thereof the Company shall incur the obligation to cancel an equivalent nominal amount of Productive Stock. And if they shall be able to purchase the Productive Stock to be cancelled, by paying less than its nominal value, the profit shall belong to the Company. But if, in order to get the necessary amount of Productive Stock, to be cancelled, it shall be necessary for them to pay more than its nominal value, the loss shall fall upon the Company.

5. And if the amount of said insurance money shall not be precisely equal, in nominal amount, to the nominal value of any number of shares of Productive Stock, the remainder, or fractional part of the nominal value of one share of Productive Stock, shall either be paid over to the holder of the mortgaged estate, and no reduction in the mortgage be made on account of such remainder, or fractional part; or it shall be retained by the Trustees, and applied to the payment of any future interest on the mortgage, or taxes on the mortgaged property, or of any [37] future expenses for, or on account of, the insurance of the property mortgaged; or the Trustees may, if they deem it expedient, accept it as the equivalent of another share of Productive Stock, which share shall be cancelled at the expense of the Company.

And whenever any Productive Stock shall be cancelled, as provided for in this Article, an equivalent nominal amount of Circulating Stock shall also be cancelled. And the mortgage on the estate shall also be released, in whole, or in part, as the case may require.

ARTICLE XXXVII.

If ever the interest on any of the aforesaid mortgages, or the money paid by the Company for taxes, (with interest on the same,) or for, or on account of, insurance on any of the mortgaged property, (with interest on the same,) shall not be paid when it shall become due, the Trustees may, in their discretion, proceed in any one or more of the following modes, to wit:

1. The Trustees may take possession of the mortgaged property, and apply the rents and profits thereof to the payment of the interest due on the mortgage, and the money due for taxes, or for, or on account of, insurance, and all expense and trouble incurred by the Trustees in managing said mortgaged estate.

2. If the owner or owners of the mortgaged property shall be, at the time, a Primary holder or holders of any Productive Stock of the Company, the Trustees, if they can do so without injustice to any one, and without throwing any unjust or unequal burden upon other Primary Stockholders, may cancel any amount of such Productive Stock, not exceeding the nominal amount of the mortgage, and then release the mortgage for a corresponding amount. But such Productive Stock shall not be thus cancelled, without giving the holder or holders thereof at least ——— months’ notice that it will be cancelled, unless payment be made.

[38]

3. If any of the conditions of the mortgage shall remain unfulfilled for the space of ——— months, the Trustees may sell the mortgaged estate, at public auction, after having properly advertised the same for sale, at least once in each of the ——— successive weeks next preceding the sale, in ——— newspapers in the county, where the estate is situated. Out of the proceeds of the sale, the Trustees shall first pay all expenses of said sale, and all interest due on the mortgage, and all money remaining unpaid, that shall have been expended by the Company, for taxes, and for or on account of insurance, on said mortgaged property, with interest on the same.

Out of the amount then remaining rom the proceeds of the sale, a sum equal to the nominal amount of the mortgage, (if so much there shall be,) shall go into the treasury of the Company; and the excess, if any there shall be, shall be paid over to the mortgagor, or his representatives (the holders of the mortgaged estate).

And in consideration of the sum, that shall thus have gone into the treasury of the Company, (even though it shall be less than the nominal amount of the mortgage,) the Company shall incur the obligation to cancel an amount of Productive Stock nominally equal in value to the nominal amount of the mortgage. And if they shall be able to purchase and cancel the necessary amount of Productive Stock, by paying a less sum for it than that which shall have gone into the treasury of the Company as aforesaid, the profit shall belong to the Company. But if, in order to get the necessary amount of Productive Stock to be cancelled, they shall be compelled to pay more than the amount that shall have gone into the treasury of the Company as aforesaid, the loss shall fall on the Company.*

Whenever any Productive Stock shall be cancelled, in pursuance of this Article, an equivalent nominal amount of Circulating Stock shall also be cancelled.

[39]

ARTICLE XXXVIII.

If any holder or holders of any of the before-named mortgaged estates shall, at any time, wish to have his or their estate released from the mortgage, and shall also be, at the same time, a Primary holder or holders of Productive Stock, the Trustees, with the consent of the Council, may cancel such stock, and release the mortgage for a corresponding amount, provided it can be done without injustice to any one, and without throwing any unjust or unequal burden upon other Primary holders of Productive Stock.

And whenever any Productive Stock shall be cancelled, in pursuance of this Article, an equivalent nominal amount of Circulating Stock shall also be cancelled.

ARTICLE XXXIX.

Whenever any shares of either Productive or Circulating Stock shall be cancelled, a record shall be preserved of the particular numbers borne by such shares respectively.

ARTICLE XL.

The regular semi-annual dividend days shall be the first days of January and July, annually. Provided, however, that when either of those days shall fall on a Sunday, the Monday next succeeding shall be the dividend day.

ARTICLE XLI.

No dividends shall ever be paid to any of the Primary Stock-holders, except from interest, that shall actually have accrued on the mortgages, and bona fide profits already realized by the Company.

[40]

Nor shall any dividends, of profits, (independently of interest on the mortgages,) ever be paid to the Primary Stockholders, except with the consent of the Council.*

ARTICLE XLII.

Whenever the owner of any of the before-named mortgaged estates shall be a Primary holder of any Productive Stock, the actual payment of no more interest shall be required of him, than shall be needed (and be due from him as his proportion) to meet the obligations of the Company. But the remainder shall be credited to him, as having been paid by him, and then debited to him as dividend paid, the same as if it had actually been paid by him as interest, and then actually repaid to him as dividend.†

And whenever the Trustees shall foresee that the liabilities of the Company are likely to render it necessary that a mortgagor, (or owner of mortgaged estate,) and Primary holder of Productive Stock, shall make an actual payment of the whole, or any part, of the interest on his mortgage, at the next semi-annual period, at which such interest will become due, they shall give him notice of such necessity, as soon as it shall become evident to them that such necessity is likely to exist.

ARTICLE XLIII.

Accumulated profits of the Company may be loaned by the Company.

[41]

ARTICLE XLIV

No promissory note, or other evidence of debt, discounted by, and running to, said Boston Banking Company, shall ever, unless with the written consent of all makers and indorsers, who shall be liable thereon, be sold or transferred by said Company, until after it shall have become due.*

ARTICLE XLV.

1. Any person who shall be a holder (whether Primary, or Secondary, or both) of Twenty Shares of the Productive Stock of said Company, may, for the time being, either be a Councillor, or appoint one in his stead, at his election. And for every additional Twenty Shares, so owned by him, he may appoint an additional Councillor.†

[42]

2. All persons, who shall be respectively holders (whether Primary, or Secondary, or both) of less than Twenty Shares of Productive Stock, may unite to choose, by ballot, so many Councillors as their Productive Stock may entitle them to choose, choosing one Councillor for every Twenty Shares. In thus choosing Councillors, each Stockholder shall be entitled to one vote for each share of his Productive Stock. These Councillors shall be chosen on each of the semi-annual dividend days, and shall hold their offices until the dividend day next succeeding the one on which they shall be chosen. The Stockholders, named in this provision, shall be furnished, by the Trustees, with suitable accommodations for their meetings (for the choice of Councillors), in the banking house of the Company.

3. The Board of Councillors may, by ballot, choose their President. He shall hold his office only until the dividend day next after his election. But he may be re-elected. Whenever there shall be no President, in office, by election, the largest holder of Productive Stock, who shall be a member of the Council, shall, for the time being, be the President.

4. The Councillors shall keep a record of their proceedings; may choose their own Secretary, and fix his salary; except that it shall not exceed ——— dollars per annum, unless with the consent of the Trustees.

5. The Councillors, by a majority vote of their whole number, may fix their regular times of meeting, and the number that shall constitute a quorum for business.

6. The Councillors shall, at all reasonable times, have access (so far as it shall be necessary for purposes of investigation) to all the books and papers of the Company; and shall be entitled to be informed of all the business affairs of the Company. The Council, or a Committee thereof, appointed for the purpose, shall also be consulted beforehand, by the Trustees, on all important transactions, if circumstances will reasonably admit of it.

7. The Council, or a Committee thereof, appointed for the purpose, shall have a veto upon any and all loans or discounts proposed to be made by the Trustees.

[43]

8. The Councillors shall receive no salaries for their services. But the President of the Council may, by vote of the Council, receive a salary not exceeding ——— dollars for six months.

9. The Councillors shall have suitable accommodations for their meetings furnished to them, by the Trustees, in the banking house of the Company.

ARTICLE XLVI.

1. The Trustees shall keep books fully showing the pecuniary standing, and all the pecuniary transactions, of the Company.

2. The Trustees shall have two seals; with one of which they shall seal all certificates of Productive Stock granted to Primary Stockholders, and with the other all certificates of Productive Stock granted to Secondary Stockholders. They may also, if they deem it expedient, and have the consent of the Council, have a third seal, and with it seal any or all certificates of Circulating Stock.

3. The Trustees shall consult the Council, or a Committee thereof, appointed for the purpose, in all important matters, when reasonably practicable, and shall conform to their advice so far as they can consistently with their (the Trustees’) opinion of what is just to all holders of either Productive or Circulating Stock, and safe and proper for the best pecuniary interests of the Company.*

[44]

4. The Trustees shall make no loans or discounts, without the consent of the Council, or of a Committee thereof, appointed for that purpose; and shall make none against their own judgments of expediency or right, even though the consent of the Council be given.

5. They shall make no loans, directly or indirectly, to either or all of themselves; shall never, as individuals, become either debtors or creditors (except for their salaries) to the Company; and never be holders of either Productive or Circulating Stock of the Company.*

6. They shall employ a Cashier, and, if need be, other clerks and servants (except a solicitor or attorney); may take suitable bonds, and shall also be themselves personally responsible for the fidelity of such cashier, clerks, and servants.†

7. The Trustees may fix the salaries of the Cashier and other clerks and servants, except that the aggregate salaries of the Cashier and all other clerks and servants (except solicitor or attorney) shall not exceed ——— dollars per annum, without the consent of the Council.

8. The Trustees, with the consent of the Council, may employ a standing solicitor, or attorney, whose salary shall not exceed [45] ——— dollars per annum, without the consent of the Council.

9. The Trustees shall always have the banking house of the Company open for business, at least ——— hours, most suitable for the convenience of customers, on every day, except Sundays, holidays, and other extraordinary occasions.

10. The Trustees shall take no lease of a banking house for a longer term than ——— years, nor pay a rent of more than ——— dollars per annum, without the consent of the Council. Nor shall they invest more than ——— dollars in furniture (independently of the necessary books) for their banking house, without the consent of the Council.

ARTICLE XLVII.

1. The Trustees, before entering on the duties of their trust, shall either give a joint bond, in the sum of ——— dollars, or several bonds, in the sum of ——— dollars each, with at least three separate and adequate sureties for each Trustee, for their fidelity as Trustees. Such bond or bonds shall run to the Council, and their successors in that office, for and on behalf of all the Stockholders in said Company—(that is to say, all holders both of Productive and Circulating Stock) collectively and individually.

2. Such bond or bonds shall be in the following form, (names, dates, and sums being made to correspond with the facts in each case,) to wit:

[46]

Trustee’s Bond.

[Entered according to Act of Congress, in the year 1860, by Lysander Spooner, in the Clerk’s office of the District Court of the United States, for the District of Massachusetts.]

Know all Men, That we, A——— A———, as principal, and H——— I———, J——— K———, and L——— M———, as sureties, are holden, and firmly bound and obliged, in the full and just sum of Sixty Thousand Dollars—that is to say, the said A——— A——— in the whole sum of Sixty Thousand Dollars, and the said sureties in the sum of Twenty Thousand Dollars each — unto Z——— A———, Y——— B———, X——— C———, W——— D———, [and others, naming them,] now constituting the Council of the Boston Banking Company (a Mortgage Stock Banking Company, having its Banking House in Boston, in the County of Suffolk, in the State of Massachusetts, and whose Articles of Association bear date January 1st, 1860) and to their successors in said office, for and in behalf of all the Stockholders of said Company, both collectively and individually; that is to say, for and in behalf of all holders both of the Productive and Circulating Stock of said Company. To the which payment, well and truly to be made, we hereby bind ourselves, our heirs, executors, and administrators, firmly by these presents. Sealed with our Seals. Dated at said Boston, this ——— day of ———, 1860.

The Condition of this Obligation is such that, whereas the said A——— A——— has been appointed one of the Trustees of the Capital of said Boston Banking Company, and has consented to accept said trust.

Now, therefore, if he, the said A——— A——— shall, at all times, faithfully, vigilantly, and honestly perform and fulfil all the duties of said trust, towards all the Stockholders of said [47] Company, both collectively and individually—that is to say, towards all the holders both of the Productive and the Circulating Stock of said Company; and shall make good to said Company collectively, and to all Stockholders therein individually, (whether holders of Productive or Circulating Stock,) all losses suffered by, or caused to, it or them, by, or by reason of, any fraud, fault, or neglect of said A——— A———, in his said office of Trustee; and shall also pay and satisfy all judgments, which may be recovered against said A——— A———, both in private suits by any individual Stockholder or Stockholders, and in suits by the Council of said Company, for losses or wrongs suffered by such Stockholder or Stockholders, individually or collectively, by, or by reason of, any fraud, fault, or neglect of said A——— A———, as Trustee as aforesaid, then this obligation shall be void; otherwise it shall remain in full force.

Signed, sealed, and delivered, in presence of }

A———

A———.

[SEAL.]

H———

I———.

[SEAL.]

J———

K———.

[SEAL.]

L———

M———.

[SEAL.]

3. And if it shall ever reasonably appear to a majority (of a quorum) of the Council, that any loss or losses have fallen upon the Company, in its collective capacity, through any fraud, fault, or neglect of either or all of the Trustees, it shall be the duty of the Council to bring appropriate suit or suits (at the expense of the Company) on the bond or bonds of such Trustee or Trustees. And any sum or sums, recovered in such suit or suits, shall be holden in trust by the Council until, in their judgment, such sum or sums can be safely and properly delivered over to some one or more of the Trustees of the Company. Or, if such sum or sums cannot, in the judgment of the Council, and within a reasonable time, be safely or properly delivered over to any Trustee or Trustees of the Company, the Council may, in their discretion, apply such sum or sums to the payment of any [48] undoubted debts or obligations, due by the Company and requiring immediate payment.

4. And if it shall ever be made reasonably to appear to a majority (of a quorum) of the Council, that any loss or losses have fallen upon, or that any wrongs have been suffered by, any individual Stockholder, or any number of Stockholders less than the whole, of said Company (whether such Stockholder or Stockholders be the holder or holders of either Productive or Circulating Stock) by, or by reason of, any fraud, fault, or neglect of either or all of the Trustees, it shall be the duty of the Council, on the request of such Stockholder or Stockholders, to bring appropriate suit or suits (at the expense of the Company) on the bond or bonds of such Trustee or Trustees, for and on behalf of such Stockholder or Stockholders. And any sum or sums recovered by the Council, in such suit or suits, shall be paid over, by them, to the Stockholder or Stockholders entitled thereto.

Provided, however, that the right of any Stockholder or Stockholders to have suit brought for, or in behalf of, himself or themselves, by the Council, and at the expense of the Company, as aforesaid, shall not preclude such Stockholder or Stockholders from bringing suit in his or their own name or names, if he or they shall so choose, against any or all the Trustees. And any judgment recovered in such suit, by such Stockholder or Stockholders, if not otherwise paid, shall, on demand by said Stockholder or Stockholders, be enforced, by the Council, by suit against such Trustee or Trustees, and his and their sureties, at the expense of the Company.

5. Whenever a bond or bonds, as hereinbefore provided for, shall have been given by any Trustee, or Trustees, no renewal thereof shall be claimed by the Council, oftener than once in five years, unless in case of the death or bankruptcy of a surety, or of his removal of his residence from the State of Massachusetts.

6. In case of any disagreement between any Trustee or Trustees and the Council, as to the suitableness and sufficiency of any surety offered by such Trustee or Trustees, such Trustee or [49] Trustees shall select one of the holders of Productive Stock of the Company; and the Council shall select another such holder; and the two so selected shall select another person, who is a holder of neither Productive nor Circulating Stock of the Company; and the three, so selected, shall investigate the subject, and report thereon, in writing, to the Council; and the joint report of any two of them shall decide the question. But the Council shall not be required to accept, as a surety, any person not a resident of the State of Massachusetts.

ARTICLE XLVIII.

If any Trustee shall be finally convicted, in any court of justice, of any embezzlement or other crime, committed in his office as a Trustee, all his rights and powers, as a Trustee, shall from that moment, cease and determine, and his place as Trustee be vacant, and liable to be filled by another.

ARTICLE XLIX.

If any Trustee shall be finally convicted, in any court of justice, of any infamous crime, committed by him otherwise than in his capacity as Trustee, he shall be liable to be removed from his office of Trustee, by votes representing a majority of the Productive Stock of the Company, whether held by Primary or Secondary Stockholders. Said votes shall be given in the following manner, to wit: The necessary number of Stockholders shall subscribe, upon a book kept by the Trustees, a declaration, fully setting forth the cause of the removal, and their wish and determination that he be removed. And such declaration, so subscribed, shall, from that moment, operate to [50] extinguish all his rights and powers as a Trustee, and to make his place vacant, and liable to be filled by another.

And each subscriber to this declaration shall affix, to his signature, the true date thereof, and the number of shares of Productive Stock, of which he shall be, at the time, the holder and owner; and shall also designate himself as being either a Primary or Secondary holder, as the case may be.

ARTICLE L.

If any Trustee shall, at any time, have become so permanently sick, insane, or unable to perform the duties of his office of Trustee, or shall be so negligent of those duties, as to make it necessary or proper that his place should be declared vacant, and be filled by another, and the fact shall have been ascertained to the satisfaction of not less than four fifths, in number, of all the holders of Productive Stock, they being, at the same time, holders and true owners of not less than four fifths, in quantity, of all the Productive Stock of the Company (whether such holders be Primary, or Secondary, or both) and a permanent record thereof, and of the wish and determination of such holders that he be removed, shall have been made on the books of the bank, and personally subscribed by such holders, such record shall, from the moment of its being so subscribed, operate to cancel all his rights and powers as Trustee, and vacate his place as Trustee, and make it liable to be filled by another.

And each subscriber to such record shall affix, to his signature, the true date thereof, and the number of shares of Productive Stock, of which he shall be, at the time, the holder and owner; and shall also designate himself as being either a Primary or Secondary holder, as the case may be.

[51]

ARTICLE LI.

Whenever a vacancy shall occur in the office of Trustee, it shall be filled by the votes of not less than four fifths, in number, of all the holders of Productive Stock, they being, at the same time, holders of not less than four fifths, in quantity, of all the Productive Stock of the Company. And the election shall be made by the necessary number of Stockholders subscribing, upon a book of the bank, a declaration substantially in the following form, to wit:

“We, the subscribers, being the holders and true owners of the number of shares of Productive Stock of the Boston Banking Company set against our names respectively, hereby declare that T——— T———, of ———, in the County of ———, in the State of ———, is our choice for the office of Trustee of said Company, in the place of W——— W———, removed [resigned, or deceased, as the case may be].”

And each subscriber to this declaration shall affix, to his signature, the true date thereof, and the number of shares of Productive Stock, of which he shall be at the time the holder and owner; and shall also designate himself as being either a Primary or Secondary holder, as the case may be.

And when the person, so appointed, shall have given the requisite bonds to the Council, for his fidelity as a Trustee, the other Trustees [or Trustee, if there shall be but one] shall convey to him his appropriate property and rights in and over the Capital Stock and other property of said Company, by a deed in the following form, (names, dates, and numbers being made to correspond with the facts in each case,) to wit:

[52]

Trust Deed.

[Entered according to Act of Congress, in the year 1860, by Lysander Spooner, in the Clerk’s office of the District Court of the United States, for the District of Massachusetts.]

Whereas R——— R———, of ———, in the County of ———, in the State of ———, has been duly appointed one of the Trustees of the Capital of the Boston Banking Company: a Mortgage Stock Banking Company, whose Articles of Association are dated January 1st, 1860, and whose Banking House is in said Boston.

And Whereas, We, A——— A———, and B——— B———, both of said Boston, are now the only Trustees of said Boston Banking Company.

And Whereas, By reason of the appointment aforesaid, it has become our legal duty to convey to said R——— R——— an equal right and property, with ourselves respectively, in the Capital Stock, and all other property, of said Boston Banking Company.

Now, Therefore, Be it known, that we, the said A——— A———, and B——— B———, Trustees as aforesaid, in consideration of the premises, and of one dollar, to us paid by the said R——— R———, the receipt of which is hereby acknowledged, and for the purpose of investing him, the said R——— R——— with equal powers and rights with ourselves respectively in the control of the Capital Stock and all other property of said Boston Banking Company, do hereby give, grant, sell, assign, and convey, and have hereby given, granted, sold, assigned, and conveyed, unto the said R——— R———, in his capacity of Trustee as aforesaid, and to his successors in said office, one third of all our respective rights and property in and to the Capital [53] Stock, and all other property, of said Boston Banking Company, without any reservation or qualification whatever.

To Have and to Hold the same to the said R——— R———, in his capacity of Trustee as aforesaid, and not otherwise, and to his successors in said office forever, jointly with ourselves and our successors, in trust for the holders of the Productive and Circulating Stock of said Company; and to be holden and administered in accordance with the said Articles of Association of said Company, and not otherwise.

In Witness Whereof, We, the said A——— A———, and B——— B———, have hereunto set our hands and seals this ——— day of ———, in the year eighteen hundred and ———.

Signed, sealed, and delivered, in presence of }

A———

A———.

[SEAL.]

B———

B———.

[SEAL.]

D———

G———. }

F———

H———. }

Boston, October 1st, 18—. Recorded in the Journal [or Records] of the Council of the Boston Banking Company for this date [or in some particular book kept by the Council, describing it, with the page].

D——— D———, Pres’t. of Council.

[or S——— B———, Sec’y of Council.]

Boston, October 2d, 18—. Recorded in the Books of the Trustees of said Boston Banking Company, to wit, in [here describe the book, whatever it may be] page —.

A——— A———, Trustee.

[or E——— E———, Cashier.]

And said Deed, before being delivered to the newly appointed Trustee, shall be recorded in appropriate books, both of the Council, and of the Trustees, and proper certificates of such records, substantially in the forms aforesaid, shall be made upon [54] the Deed itself. And the Deed shall then be delivered to the newly appointed Trustee; and such delivery shall operate to invest him with equal rights, as Trustee, with any and all his associate Trustees. And he shall then immediately cause said Deed to be recorded in the Registry of Deeds for the County of Suffolk.

ARTICLE LII.

1. The regular salaries of the Trustees shall be at the rate of ——— dollars each per annum, payable semi-annually, on the regular dividend days.

2. The regular salaries of the Trustees may be increased, for definite periods, not exceeding five years each, by the votes of not less than four fifths, in number, of all the holders of Productive Stock, they being, at the time, holders of not less than four fifths, in quantity, of all the Productive Stock of the Company. The votes, for this purpose, shall be given by the necessary number of Stockholders subscribing, upon some book of the bank, kept by the Trustees, a declaration substantially in the following form, to wit:

“We, the subscribers, being the holders and true owners of the number of shares of the Productive Stock of the Boston Banking Company, set against our names respectively, hereby give our vote that the regular salaries of each of the three Trustees of said Company be increased, by the sum of one hundred dollars each per annum, for the term of three years, from and after the first day of July, 1861.”

And each subscriber to this declaration shall affix, to his signature, the true date thereof, and the number of shares of Productive Stock, of which he shall be, at the time, the holder and owner; and shall also designate himself as being either a Primary or Secondary holder, as the case may be.

This vote shall be given only at some time within the six months next preceding the day, when the increased salary is to commence.

[55]

3. In addition to their regular salaries, each Trustee shall have five per centum of all the clear profits of the business done by the Company, (independently of the interest on the mortgages,) the same to be payable only at the same times with the dividends, of profits, to the Primary Stockholders.

4. Neither the salaries of the Trustees, nor their portion of the profits, shall ever be paid to them, except in the order, relatively to other claims, in which they stand in Article XXIX. And if it shall ever happen that the entire Productive Stock of the Company shall be transferred, from any one body of Primary Stockholders, in redemption of the Circulating Stock, any arrearages, either of salaries or profits, due, at the time, to any of the Trustees, shall be forfeited by them.*

5. In case of the death or resignation of a Trustee, or of his removal for any other cause than crime committed in his office of Trustee, his proportion of any accumulated profits shall be paid to him, his heirs, executors, administrators, or assigns, within three months after such death, resignation, or removal. In case of his office ceasing by reason of crime committed by him in his office of Trustee, his proportion of any accumulated profits shall be paid to him, his heirs, executors, administrators, or assigns, within six months thereafter, unless it shall be found necessary or proper to retain them as an indemnity for his crime.

ARTICLE LIII.

The Trustees may, with the consent of the Council, (or an authorized Committee thereof,) take Productive Stock, or any other real or personal property, and especially the bills, certificate, [56] or scrip of other banks, in satisfaction of debts due to the Company. And when such stock or other property shall have been taken, it shall, with the consent of the Council (or an authorized Committee thereof) be disposed of, by auction or otherwise, soon as it can be advantageously for the interests of the Company.

ARTICLE LIV.

If any holder, either Primary or Secondary, of Productive Stock, shall become indebted to the Company, either as principal, or surety, such indebtedness shall operate as a lien upon his Productive Stock, unless a written contract to the contrary be entered into.

ARTICLE LV.

The Company may receive the Circulating Stock of the Company, on deposit, without interest, and be responsible for its safe keeping; but such Stock shall not be loaned, nor re-issued, by the Company, until it shall have been redeemed.

ARTICLE LVI.

The Trustees, with the consent of the Council, or an authorized Committee thereof, may allow money and currency, other than the Circulating Stock of the Company, to be deposited in the vaults or safes of the Company, without compensation; but they shall not make the Company in any way responsible for its safe keeping; and shall not loan nor re-issue the same, for, or on behalf of, the Company, nor on securities running to the Company.*

[57]

ARTICLE LVII.

Whenever the consent of the Council, or any Committee thereof, shall be necessary to any general, or any particular, action of the Trustees, such consent, if the Trustees require it, shall be expressed by a resolution or memorandum, entered upon the records of the Council, and a certified copy thereof furnished to the Trustees; said certified copy to be written in a book kept by the Trustees, if they shall desire it.

ARTICLE LVIII.

All holders of Productive Stock—and also all holders of Circulating Stock, which shall have been presented for redemption, and not been redeemed—shall be entitled, at all reasonable times, to all necessary and proper information, from the Trustees, as to the affairs of the Company, and to access to the books of the Company, so far as such access shall be necessary for the purpose of investigating the pecuniary condition of the Company. And all holders, whether Primary or Secondary, of Productive Stock, shall be entitled to a printed copy of the Company’s Articles of Association.

ARTICLE LIX.

The Trustees, with the consent of the Council, or an authorized Committee thereof, may make such contracts with banks and [58] individuals, for the redemption of the currency of the Company, in such towns and cities, other than Boston, as may be thought expedient, with a view to promote the circulation of the currency.

ARTICLE LX.

Neither the Trustees, as such, nor the Company, by any of its servants or agents, shall ever contract any indebtedness, except for rents, salaries, and such other necessary and proper expenses, as are necessarily implied in taking care of the Company’s capital, and carrying on its business as a Banking Company, in the manner hereinbefore specified.

ARTICLE LXI.

At such time, on or after the first day of January in the year Eighteen Hundred and Eighty, as the Council may appoint, the Trustees shall cease to grant loans, and to issue the Circulating Stock of the Company; and shall, as soon thereafter as reasonably may be, collect all debts due the Company; compel payment of the mortgages (having given the holders of the mortgaged estates one year’s notice of the demand, and allowing them to offset Productive Stock in payment of their mortgages, so far as that can be done consistently with justice towards all concerned); redeem all the Circulating Stock of the Company; and do whatever may be necessary to close up the affairs of the Company, and dissolve the Company itself. But the mortgages shall not be discharged, nor the Company dissolved, until all the liabilities of the Company shall be cancelled; all its Circulating Stock redeemed; all holders of Productive Stock paid for their Stock; and all certificates of both Productive and Circulating Stock cancelled or destroyed.

Provided, however, that if, after the Trustees shall have given due notice to the public to return the Circulating Stock of the [59] Company for redemption, and after ample time shall have elapsed for the purpose of returning such Stock for redemption, any small amounts thereof, not exceeding ——— dollars, in the aggregate, shall still be outstanding, and it shall be believed, by the Trustees, that such Circulating Stock shall have been either lost, or destroyed, or that it is not likely soon to be returned for redemption, they shall proceed to dissolve the Company, distribute its capital to the individual owners, reserving in their own hands, out of the funds of the Company, enough gold or silver coin to redeem all the still outstanding Circulating Stock. And if such Circulating Stock, or any portion thereof, shall be returned to said Trustees for redemption, at any time within three years thereafter, it shall be redeemed by them. But if any portion of said outstanding Circulating Stock shall not be returned for redemption within the said three years, it shall be presumed to have been lost or destroyed, and the fund reserved for its redemption shall be paid over to its rightful owners.

In Witness of all which, We, the said F——— F———, G——— G———, H——— H———, and I——— I———, mortgagors aforesaid, and Primary holders of all the Productive Stock of said Company, and also we, the said A——— A———, B——— B———, and C——— C———, Trustees hereinbefore named, in token of our acceptance of said trust, have set our hands and seals to nine copies of these Articles of Association (consisting of fifty-nine printed pages) and have also set our names at the bottom of each and all the said fifty-nine pages, this first day of January, in the year Eighteen Hundred and Sixty.

Nine Copies Signed and Sealed, and One Copy Delivered to Each of the Parties Signing the same, in presence of us. }

F———

F———.

[SEAL.]

G———

G———.

[SEAL.]

H———

H———.

[SEAL.]

A———

D———. }

I———

I———.

[SEAL.]

B———

E———. }

A———

A———.

[SEAL.]

C———

F———. }

B———

B———.

[SEAL.]

D———

G———. }

C———

C———.

[SEAL.]

Endnotes

*

With a single exception, (provided for in Article XXVII, of the Articles of Association,) not affecting the general rule.

*

See Article XIX, of the Articles of Association.

*

Even if the rate of dividend, fixed for the Secondary Stockholders to receive, were such as to make their Stock worth more than par of specie, that would not be likely to make the bills worth more than par of specie; because a person, by returning his bills for redemption, would not be sure of getting Productive Stock for them. He might be paid in specie, instead of Productive Stock.

Furthermore, even if his bills should be redeemed by Productive Stock, instead of specie, he would not be likely to hold it a very long time, before it would be bought back by the bank, by simply paying its face in specie.

There would, therefore, be likely to be no scramble for bills (in order to get Productive Stock for them) even though the rate of dividend, fixed for the Secondary Stockholders to receive, should be such as to make the Productive Stock worth, in their hands (supposing they could retain it a length of time) more than par of specie.

*

The New York bank would not redeem them by paying specie for them, but by receiving them in payment of debts, and by giving its own bills in exchange.

*

The author does not concede the constitutional power of the State governments to prohibit any kind of banking, that is naturally just and lawful. And he fully believes all existing restraints upon private banking to be unconstitutional. But, be they so, or not, it seems plain enough that government has constitutionally no more power to forbid men’s selling an invested dollar, than it has to forbid the selling of a specie dollar. It has constitutionally no more power to forbid the sale of a single dollar, invested in a farm, than it has to forbid the sale of the whole farm.

The currency here proposed is not in the nature of a credit currency, (as the word credit is now legally understood,) and could not be prohibited on that ground, even if any credit currency can constitutionally be prohibited.

The currency proposed consists simply of bona fide certificates of Stock, which the owners have the same right to sell, that they have to sell any other Stocks.

*

Diamonds would not answer well as a currency, because, although they have a market value, that value is known only to a few.

*

The sale of them, as a currency, is not a use of them; any more than the sale of a horse is a use of the horse.

*

Independently of the injustice of all laws impairing the natural “obligation of contracts,” there was a very weighty reason why the States should have no power to enact bankrupt laws. If they had this power, each State might have the motive to pass such a law for the purpose of liberating her own citizens from their obligations to the citizens of other States; when, if the law were to operate only as between her own citizens, she might not choose to pass the law. This power of passing bankrupt laws was, therefore, confided solely to the general government; and its laws were required to be “uniform throughout the United States.”

In this connection, it may not be impertinent for the writer to say, that, if the natural “obligation of contracts” were known, he apprehends there would be no occasion for any bankrupt or insolvent laws at all. He apprehends there is a natural limit to the obligation of contracts; that, in the case of ordinary credit contracts, time is an essential element of the contracts; that, if there be no other limit to the natural obligation of such contracts, the principle, that the law requires impossibilities of no one, fixes such a limit; and that, therefore, the most that the law can require, in the way of the fulfilment of a time contract, is that the debtor shall exercise due integrity and diligence during the time his contract has to run; and that, if he do this, he can absolve himself from the obligation of his contract, by paying to the extent of his ability, when the contract becomes due.

This writer apprehends, however, that a more precise definitions, even than this, may be given of the obligation of a contract. But this is not the place to attempt it.

*

The provision in brackets need be inserted only in those States where the laws forbid a higher rate of interest than six per cent. Although such laws are unconstitutional in all the States, yet as it is perhaps uncertain how the courts will decide the question, it may be best to guard against any possible consequences of an usurious contract, by making the rate conditional on the decision of the courts.

The object of fixing the rate of interest at seven per cent., instead of six, is that the stock may be certain to pay a six per cent. dividend, after deducting all expenses of the company, even though no profit at all should be made by the banking.

*

As a means of detecting counterfeits, over-issues, &c., it will be useful to have each certificate of Circulating Stock express the particular numbers borne by the shares it represents.

*

Where a Certificate represents but a single Share, the words in brackets may be left out.

*

A Primary Stockholder can have no serious objection to the transfer of his Productive Stock, in redemption of the Circulation; because no dividends can be paid to any of the then existing body of Primary holders, until his transferred stock shall have been repurchased by the Company, and restored to him, when it will stand on the same footing, in regard to dividends, as if it had never been transferred. See Article XX.

*

Of course no body of Primary Stockholders will ever suffer the entire Productive Stock of the Company to be transferred, in redemption of Circulation, in the manner provided for in this Article, until they shall become utterly bankrupt; that is, until all the resources of the bank, that belong to the Primary Stockholders—such, for example, as debts due the bank—shall be utterly exhausted; because, by doing so, they would forfeit those resources. They will therefore hold on to some of the Productive Stock, (though it be but a single share,) as long as they hold on to any of the property of the Company.

*

This provision is necessary, for otherwise the Productive Stock would pass into the hands of the new holders, subject to an encumbrance, and therefore not at its par value.

*

It is necessary that bills deposited for redemption, should be sealed up, for otherwise it would be in the power of the Company to re-issue them. If reissued, before they had been redeemed, they would require a double redemption; and there would not be enough Productive Stock to redeem them.

*

Articles XXIV, XXV, and XXVI, may be left out, if it should be thought best; but it will probably be expedient to retain them, to prevent the too frequent transfer and re-purchase of Productive Stock.

A holder of certificates, scrip, or bills of Circulating Stock, who shall have presented them for redemption, can have no reasonable objection to the non-redemption of them, by the transfer of Productive Stock, so long as interest upon them is paid semi-annually; because they being in the meantime sealed up, cannot be put in circulation by the bank, so as to increase the liabilities of the bank, or endanger their own final redemption. All he loses by the non-immediate redemption of them, by the transfer of Productive Stock, is, that he cannot have the rights of a holder of Productive Stock, to vote for Councillors, and to be himself a Councillor. But he is amply compensated for this deprivation, by the fact that the Company are bound (Article XXIX) to pay him interest, in full, on his bills, (presented for redemption,) before any dividend at all can be paid on the very Productive Stock itself, which would be transferred to him, in redemption of his bills, if he were to insist on their immediate redemption.

He also has the assurance that the Company will redeem his bills soon as reasonably may be, either by coin or Productive Stock; because, until they do so, the bank must pay interest on them, and the bills remain sealed up, and the bank lose the benefit of putting them in circulation.

The reason, why the Company may not wish, at all times, to transfer Productive Stock, in redemption of bills, immediately on their being presented for redemption, is, that it might be very troublesome to be continually changing the ownership of the Productive Stock, by transferring it in redemption of bills, and then re-purchasing it in a short time afterwards. The Company would, therefore, wish to transfer Productive Stock, in redemption of bills, only when it was likely to be a considerable time before they could re-purchase it.

The ordinary, if not the only, motive, the Company would have for not redeeming bills immediately on presentation, by the transfer of Productive Stock, would be, that they would prefer, and would expect soon to be able, to redeem them with coin. And as the bills, sealed up, and drawing interest, would be just as valuable and productive to the holder, as the same amount of Productive Stock (held by a Secondary holder) would be, there is no good reason for compelling the Company to transfer Productive Stock, when they would have a right, and would most likely very soon wish, and be able, to re-purchase it.

Unless the banking business were badly conducted,—that is, unless the bank should discount long paper, or bad paper,—there would probably never be a necessity for the transfer of any Productive Stock at all, in redemption of the Circulation. But the redemption (when not made by receiving the bills in payment of debts due the bank) would take place in coin, either immediately on the presentation of the bills, or very soon after, with interest for the delay.

*

This Article is, perhaps, not very important. Its object is to make it for the interest of the holders of Circulating Stock, in less amounts than one hundred shares (dollars), to dispose of it in the course of business, and let it come back to the bank, either in payment of debts due to the bank, or in even amounts of one or more hundred shares (dollars), so as to give the Company an opportunity to redeem it with Productive Stock, rather than coin, if they shall choose to do so. Such would be the common course of things without this provision. Yet as it may sometimes happen that it would be for the interest of a holder of Circulating Stock, of a less amount than one hundred shares (dollars), to return it for redemption in gold or silver, rather than dispose of it in the course of business, it is perhaps proper that a redemption, in gold and silver, should be provided. This Article, therefore, provides a redemption, but one a little less favorable than where the amount is one or more hundreds.

Where a bank is prosperous, and above the necessity of transferring Productive Stock at all, in redemption of their Circulation, it will be for their interest (as promoting the reputation of the bank) to redeem their Circulation at once, with gold and silver, when presented in amounts less than $100, rather than receive it on deposit and pay interest.

*

It is necessary that a distinction should be made between dividends, made up of interest, and those made up of profits, at least so long as any Productive Stock shall remain in the hands of the original mortgagors, or their assigns (holders of the mortgaged estates) as Primary holders; because the actual payment, by them, of interest, which is to be at once returned to them as dividends, will be unnecessary (see Article XLII). The Company may also wish the profits to accumulate as a reserved fund, instead of being distributed; when they might not be willing actually to pay interest (not otherwise needed) simply to create a reserved fund.

*

The form of the above Deed is somewhat awkward, owing to the fact that it was necessary to adapt it to the cases of all sales, whether by the Primary Stockholder himself, (from whom the stock should have been transferred,) or by his heirs or assigns. Had it been necessary to adapt the form only to the first of these cases, it might have been made a little more simple.

*

This provision makes the mortgages mutually responsible for the solvency or sufficiency of each other.

*

See Note to Article XXIX, page 22.

†

So long as the bank is prosperous, and the Productive Stock shall remain in the hands of the mortgagors, or the owners of the mortgaged estates, there will, of course, be no need that the interest be paid at all; because, if actually paid in as interest, it would have to be immediately paid back to the same persons as dividend. All that will be necessary, therefore, will be, that the interest be simply credited as interest, and then debited as dividend, to the same persons, without any actual payment being made of either interest or dividend.

*

The purpose of this Article is to furnish a guaranty to borrowers of Circulating Stock, that they will be able to pay their debts to the bank in the same currency, which they receive of the bank. If the bank could transfer a note, which it had discounted, the maker might be compelled to pay it with specie. The Article will be beneficial to the bank itself, because it gives the public a guaranty that the bills of the bank will all be wanted to pay debts due the bank. It thus tends to give to the bills the same value as gold and silver, in the estimation of the public, and thus promote their circulation.

The Article also tends to put it out of the power of the officers of the bank to embezzle its funds.

The argument, that it might sometimes be advantageous for the bank to transfer a doubtful note, before it should become due, is of little weight. If a debt be bad, the loss of it may as well fall upon the bank as upon any body else. And the knowledge that this must be the case, will make the bank more cautious as to its loans. Besides, a case would but rarely happen, where the bank would be benefitted by transferring a note. And then the gain would be less than the loss arising to the credit of the bills of the bank, in consequence of any uncertainty as to their being wanted to pay debts due the bank.

The right of the bank to transfer a note, after it shall have become due, is the only right that the bank really needs, or that it would be expedient to exercise.

†

As the powers of the Councillors are mostly advisory, rather than authoritative, the name of Councillors is more appropriate than that of Directors.

*

It would not be proper to make the power of the Councillors authoritative over the Trustees, because the very nature of the system makes the Trustees the attorneys of three different classes of Stockholders, to wit: the Primary and Secondary holders of Productive Stock, and the holders of Circulating Stock. Legally speaking, the individuals composing one of these classes, are as much Stockholders as either of the others. The holders of the Circulating Stock have rights in the Company, which are as strictly legal as those of the Primary or Secondary holders of Productive Stock. Yet they have no voice in choosing the Council; and no voice in the affairs of the Company, except through the Trustees. If, therefore, the Trustees were controllable by the Council, who represent only the holders of Productive Stock, the rights of the holders of Circulating Stock might be sacrificed to the holders of Productive Stock. It is important, therefore, that the Trustees should stand in an independent and impartial position towards all classes of Stockholders, and be directly and legally responsible to each and every Stockholder, of the three several kinds.

The prohibition upon the Trustees’ making any loans, except with the consent of the Council, who represent the holders (both Primary and Secondary) of Productive Stock, is a sufficient security, to those Stockholders, that their interests will not be sacrificed by imprudent loans.

*

This provision may, at first view, appear unnecessarily stringent; but, on reflection, it will probably be seen that its value, as a precaution against embezzlement, and against the various sinister influences, that might otherwise operate upon the Trustees, is such as to outweigh any inconvenience.

†

As the Trustees have power to appoint their own Cashier and other servants, without the consent of the Council, they should be held responsible for their fidelity.

*

This provision is proper, because it is proper that the Trustees should have some personal motive to vigilance in the management of the bank. It is also necessary, because otherwise the Productive Stock would pass into the hands of the new body of Primary holders, subject to an incumbrance, and therefore not at its full nominal value.

*

The reason for this Article is this. If this system of banking should be generally adopted, the number of banks would be so great, that they would be able to supply all demands for a currency, without issuing their deposits. All necessity, therefore, for loaning deposits, will be superseded. By loaning their deposits, the banks would incur a liability to their depositors, which is foreign to the nature of the system, and which, for obvious reasons, ought to be avoided. The power to loan deposits would be practically useless to the banks; because the banks, by reason of their number, would be unable to keep out all their own Circulating Stock, to say nothing of their deposits.

T.18 Our Mechanical Industry, as Affected by our Present Currency System: An Argument for the Author’s “New System of Paper Currency” (1862).↩

Title

[18.] Our Mechanical Industry, as Affected by our Present Currency System: An Argument for the Author’s “New System of Paper Currency” (Boston: Stacy & Richardson, 1862).

- also online Shorter Works, vol. 2: </titles/2292#lf1531-02_head_001>

Text

OUR MECHANICAL INDUSTRY, &C.

OUR MECHANICAL INDUSTRY, AS AFFECTED BY OUR PRESENT CURRENCY SYSTEM: an argument for the author’s “NEW SYSTEM OF PAPER CURRENCY.”

By LYSANDER SPOONER.

BOSTON:

PRINTED BY STACY & RICHARDSON, No. 11 Milk Street.

1862.

[2]

Entered according to Act of Congress, in the year 1862, By LYSANDER SPOONER, in the Clerk’s office of the District Court of the United States, for the District of Massachusetts.

[3]

CHAPTER I.: Losses in our Mechanical Industry resulting from our Reliance upon Gold and Silver as the Basis of our Currency and Credit.

Our national industry now averages about four thousand millions of dollars per annum. In the most prosperous years, it probably amounts to five thousand millions. In the least prosperous years, it probably falls down to two or three thousand millions.

Thus it is proved that our industry is capable of producing five thousand millions in a year. And if it produce that amount in one year, it ought to be made to produce it in every year. But there is a falling off, in some years, of two or three thousand millions. The average falling off is doubtless one thousand millions per annum, or one fifth of what our industry proves itself capable of.

Here, then, is a loss, in some years, of about one half, and an average loss of one fifth, of what our industry is capable of.

Great as it is, this loss of one fifth of our industry could be born with comparative ease, if it came uniformly in each year, and fell equally upon all in proportion to their property. But it [4] comes at intervals, and falls unequally. And it falls most heavily upon those least able to bear it. In the first place, it falls, in a greatly disproportionate degree, upon those who labor for daily or monthly wages; depriving them of a large part of their usual means of subsistence, compelling them to consume their accumulations, and often reducing them to absolute suffering. In the second place, it is attended with a fall in prices, which sweeps away, at half its usual market value, the property of thousands, in payment of debts, that had been contracted under high prices; thus bringing upon such persons either utter bankruptcy, or grievous impoverishment. In this way a large portion of the people are kept in perpetual poverty; whereas if their industry were but uninterrupted, and the prices of property stable, nearly everybody would acquire competence. Thus the inequality, with which the loss falls upon the people, makes the loss a far greater evil than it otherwise would be.

So large a portion of our industry depends upon credit, that it is probable that the entire difference between our industry in the most prosperous, and in the least prosperous, years—a difference of two or three thousand millions of dollars—is attributable solely to the great extension of credit in the former years, and the suspension, or restriction, of credit in the least prosperous years.

The suspension of credit operates principally to suspend mechanical industry. And the great losses, before mentioned, in our aggregate industry, are really little or nothing else than losses from the suspension of our mechanical industry.

That the suspension of mechanical industry is, in this country, attributable directly and wholly to a suspension of credit, is just as apparent as it is that the water wheel stops because the water is shut off from it.

Under our existing system of currency, these suspensions of credit are inevitable. They arise from various causes, which are inherent in the system, and can be avoided only by a change of system.

[5]

One of these causes is the occasional exportation of specie. Our credit being based upon our paper currency, and our paper currency being based upon specie, (that is, being legally redeemable in specie on demand), it follows that whenever any considerable exportation of specie occurs, the paper currency, having in part lost its basis, or means of redemption, must necessarily contract in a corresponding degree.

And here comes in a point to be noticed, viz: that even a small contraction in the currency is sufficient to produce a general suspension of credit; and not merely a suspension corresponding in amount to the contraction in the currency. The reason of this is that, as a general rule, any contraction of the currency operates equally upon all debtors in proportion to the amounts of their indebtedness respectively. That is to say, if the amount of currency in circulation be diminished to the extent of ten per cent. of the whole amount, each and every debtor, as a general rule, will find his facilities for meeting his engagements diminished by ten per cent. of what they were before. If the amount of currency in circulation be diminished to the extent of twenty per cent. on the whole amount, each and every debtor, as a general rule, will find his facilities for meeting his engagements diminished by twenty per cent. of what they had been. If, now, a man has been using his credit to its full limit, the diminution of his facilities, to the amount of ten or twenty per cent., is as fatal to his credit as the entire annihilation of those facilities would be. Because all his engagements stand on the same footing, and a failure to meet one is a failure to meet all. He cannot pay ninety per cent. of his debts, and refuse payment of the other ten per cent., and yet retain his credit, and continue his business. When, therefore, the currency contracts by the amount of ten per cent., this contraction, operating, as a general rule, upon all debtors alike, compels every debtor in the whole community to fail, except those whose margins of resources are ten per cent. above all their liabilities. When the currency contracts by the amount of twenty per cent., overy debtor in the [6] whole community must fail, except those whose margins of resources are twenty per cent. above all their liabilities. When the contraction of the currency is still greater than ten or twenty per cent., a corresponding margin of resources, above liabilities, is required to save a man’s credit.

It is because few of the men, doing business on credit, have a margin of resources, above their liabilities, corresponding with the contractions which take place in the currency, that these contractions prove fatal to so large numbers of them; and correspondingly fatal to the industry of the country.

The author’s system of currency would save all disasters from this cause. Requiring very little specie itself, the exportation of specie would have no influence upon the amount of currency in circulation, or upon the stability of credit.

Under our present system, these exportations of specie, by suspending credit, and thus suspending our mechanical industry, occasion the loss, sometimes, of two or three thousand millions of dollars in our industry, in a single year. They undoubtedly occasion the loss of one thousand millions of dollars per annum, on an average. This is about ten times the amount of the whole stock of specie, that we usually have in the country. So that, by relying upon specie, as a basis of credit and currency, we lose, in our industry, annually, on an average, ten times more than our whole stock of specie is worth.* And this loss falls, almost wholly, upon our mechanical industry. Is there any wonder that we cannot do our own manufacturing? Or that our manufacturers cannot compete with those of England in the markets of the world? Give us uninterrupted credit, and an abundant currency—a system of credit and currency that cannot be affected by the exportation of specie, and under which manufacturing industry need never be suspended, and our manufacturing [7] capacities would stand on a wholly different basis from what they do now.

A second cause for the suspensions of credit is, that under our present system of currency, the avarice of the money lenders finally destroys the very business that employs their money.* Thus after a general suspension of credit, and of mechanical industry, there being no use for money, the rate of interest falls to a low figure, say three, four, or five per cent, and no calls at that. When this state of things has continued until the money lenders are out of patience at the non-productiveness of their capital, their selfishness manifests itself in apparent liberality; and they are ready to lend money at such low rates as to induce mechanics to undertake business. Industry and commerce revive slowly; but gradually improve, and finally become active and profitable. This increased activity and profit are of course attended with an increased demand for credit and currency. And there being but a limited supply of currency, the rate of interest rises with the demand for it. Until finally, when credit has become most diffused, and industry, production, and commerce are at their height, the competition among borrowers, and the necessity which each one is under to fulfil his engagements, enable the money lenders to raise the rate of interest so high as to swallow up all, and more than all, the profits of business, and compel it to stop.

If the money lenders could all act in concert, so as never to raise the rate of interest beyond what industry would bear, they would doubtless promote their own interests by so doing. But as no such concert among them is practicable, each one acts by himself, and takes advantage of the general competition among [8] borrowers, and grasps at the most he can get for the time being, because he knows that, if he does not, some body else will. In this way the greed of the money lenders themselves finally destroys the very industry, which their own capital had created.

Under the author’s system of currency, this cause of the suspension of credit and industry could never exist; for there would always be such an abundance, and even superabundance, of currency to be loaned, that the rate of interest could never be raised. Currency, in any possible amount that could be used, would always be seeking borrowers at the lowest rate at which the business of banking could be profitably done.

A third cause of our suspensions of credit is, that under our present system of currency, there are several times, perhaps many times, as much indebtedness outstanding, as there is of real credit; or as there is of real credit needed for doing the same business. In other words, substantially the same debt is due several, perhaps many, times over, by as many different individuals; when, under a proper system of currency, a single one only of these individuals would have needed to contract the debt.

To illustrate this idea, let us suppose that A is a wool grower in Vermont, and that he sells his wool, on credit, to B, who is a manufacturer at Lowell; that B sells his woollen goods, on credit, to C, who is a jobber of woollens in Boston; that C sells a piece of woollen goods, on credit, to D, who is a general retailer in New Hampshire; that D sells woollen for a coat, on credit, to E, who is a tanner in New Hampshire; that E sells leather, on credit, to F, who is a leather dealer in Boston; that F sells leather, on credit, to G, who is a shoe manufacturer in Lynn; that G sells shoes, on credit, to H, who is a shoe dealer in Boston; that H sells shoes, on credit, to I, who is a jobber in Tennessee; that I sells shoes, on credit, to J, who is a retailer in Tennessee; that J sells a pair of shoes, on credit, to K, who is a farmer in Tennessee.

Each of these persons, except K, we will suppose, has capital [9] enough of his own to carry on his business, if he could only sell for cash, instead of on credit. But K, having no credit at bank, where he ought to have it, if he is worthy of credit at all, is under the necessity of getting credit of retailers, among the rest, of J, for a pair of shoes, of the value of one dollar. J, being under the necessity of giving credit to K, is himself compelled to get credit with I, the jobber in Tennessee. And I, being under the necessity to give credit to J, is himself compelled to get credit with II, the shoe dealer in Boston. And H, being under the necessity of giving credit to J, is himself compelled to get credit of G, the shoe manufacturer in Lynn. And thus the indebtedness runs back to A, the wool grower, who, from selling his wool on credit, may have been obliged to get credit of some retailer, who again was obliged to get credit with some jobber, who was obliged to get credit with some manufacturer, and so on, until the credit stopped in the hands of some one, who could wait for his money until it should come from K, through all the line of intermediate debtors and creditors.

This dollar, which was at last credited by J to K, in the shape of a pair of shoes, is in reality one of those dollars, which were originally credited by A to B, in the shape of wool; all of which have now become scattered over the country by the same process of repeated credits, by which this dollar came at last into the hands of K.

Here, then, were ten, twelve, or more times as much indebtedness created, as there was of real credit given, or needed. K was the only one of the whole number, who really needed credit. If he could have obtained it at bank, where he ought to have obtained it, he would have paid cash, and all this unnecessary indebtedness would have been avoided. But there was no bank in his neighborhood, where he could get credit, and he was therefore obliged to get credit with the retailer. The retailer was obliged to get credit with the jobber, the jobber with the manufacturer, and so on.

Under the author’s system of currency, all this unnecessary [10] indebtedness would be avoided. Banks would be so numerous, that every body, who needed and deserved credit, could get it at bank; and all traffic between man and man would be cash. And thus all that superfluous indebtedness, (over real credit,) which now furnishes perhaps four fifths, or perhaps nine tenths, of all the materials for a “panic,” or “crisis,” or general suspension of credit, would be avoided. And such an event could never occur again.

A fourth cause of the suspensions of credit, that now occur, is that the credit itself, that now exists, is, in its very nature, unsound, by reason of the basis of each credit not being definitely known to the creditor himself. That is to say, no specific property is holden for a specific debt, as in the case of a mortgage. Every thing, in this respect, is loose. The creditor, in each case, has only a general confidence, based upon circumstances, and not upon any intimate knowledge, that all of his debtor’s miscellaneous assets will prove adequate to meet all of his miscellaneous liabilities.

This looseness is carried to a great extent, and necessarily grows out of our present system of currency. Our banks are so inadequate to supply directly all the credit that is needed, that nine tenths, or perhaps nineteen twentieths, of all credit is given by men who are themselves debtors. The same individual gets credit, on the one hand, from every one who will give him credit, and then himself gives credit, on the other hand, to all who will offer him such profits as, in his opinion, will justify the risk—a risk, which, in many cases, is all the more adventurous, because he knows that it must really be run by his creditors, rather than by himself.

In this chaotic mass of indebtedness, no specific property is holden for any specific debt. Every man’s solvency depends upon the solvency of other persons, whose real conditions are unknown to him. The banks depend for their solvency upon the solvency of their debtors; and these latter upon the solvency of their debtors; and these latter upon the solvency of still other [11] debtors; and so on indefinitely. To add to the confusion, every man’s debtors are entangled with every other man’s debtors, by an almost infinity of cross credits, whose ramifications no one can trace. The debtors of many creditors being scattered all over the country, where the law can give the creditors no practical protection. Thus nearly all credit proceeds avowedly upon the principle of risk—even of great risk—and not of certainty.

Under the author’s system of currency, credit would scarcely partake of the character of risk in any degree. In the first place, the banks would be, of themselves, absolutely solvent, and not dependent upon the solvency of their debtors. Next their debtors would be solvent, and known by the banks to be so; because substantially all temporary credit would be obtained at bank, and all trade between man and man be cash. As each man, who should get credit at all, would get it at bank, and generally get all his credit at a single bank, the bank would of course make itself acquainted with his precise condition. And the debt would be virtually a sole mortgage covering his whole property. Thus every debt would be virtually a mortgage upon specific property. With scarcely a qualification, therefore, it might be said that all credit would be perfectly sound. Not even wars, nor political convulsions of any kind, would have any effect upon the stability of such credit. Consequently wars and political convulsions would neither interrupt industry, nor obstruct commerce, nor strike down prices, in any such degree as they do now.

What folly is it to build our industry, as we do now, upon great rickety fabrics of indebtedness—five, ten, or perhaps twenty times larger than they need be, (five, ten, or twenty times as much indebtedness, as of real credit,) every part bound to every other part, in the universal entanglement of indebtedness, and every part trembling and creaking with the weakness of every other part, and the whole standing poised, like an inverted cone, upon a small movable basis of specie, which is sure to give way; when prices, credit, and industry must all tumble into [12] ruins. Yet this we do over and over again. When the disaster comes, we for a while stand aghast at the wreck; then proceed to build up a precisely similar fabric of folly again, knowing that the same catastrophe will overtake it, that has overtaken all its predecessors.

A fifth cause of our suspensions of credit is the lack of variety in our manufactures, and the consequent over-production of particular commodities. A very large share of the manufacturing capital, both in this country and in England, is in large masses, and employed by large companies, that have been long established, and are engaged in the production of a limited variety of commodities. The consequences are over-production of those particular commodities, slow sales, low prices, long credits to purchasers, and also credits extra hazardous. All these are bad elements in the money market. The only remedy for them is to introduce a greater variety in our manufactures. And a more diffused credit is the only means of introducing this greater variety. Old companies, composed of many individuals, employing large capitals, their machinery all adapted to their peculiar kinds of manufactures, and having established commercial connexions, cannot easily divert their industry into new channels. In fact, it is nearly impossible. As a general rule, therefore, it is only young men, commencing business, and employing only small capitals at first, who can make experiments easily, and without much risk, and thus introduce new varieties of manufacture. Old men, with large capitals, and established business, rarely think of such things. But every young man, on first setting out in manufacturing business, naturally desires to engage in the production of some commodity, that will not expose him to the competition of older establishments. And if he succeed in so doing, it is a most favorable circumstance both for himself, and for those who would otherwise be his competitors. Both are relieved from a competition, that would have been injurious, and perhaps dangerous, to them.

In this way variety in manufactures is greatly increased. And [13] the greater this variety, the less over-production will there be of any particular commodity, the quicker will be the sales of all commodities, the higher the prices of all, the more cash payments, the shorter the credits, and the safer the credits, and consequently the less liability to any suspension of credit.

This greater variety in manufactures is as desirable for the community at large, as for the manufacturers themselves. A man’s enjoyable wealth is measured by the number of different things be possesses, rather than by the quantity of any one thing. Thus a man may have a thousand times as much wheat as he can eat, and yet, if he have no other wealth, he will be a poor man. But if he can exchange his surplus wheat for a thousand other things, which he desires, his enjoyable wealth will be multiplied a thousand fold. He will then be rich.

For the same reason a nation is rich, or poor, according to the greater or less number of different commodities, which its people possess. Hence the industry of a nation should be devoted, not wholly to the production of any one commodity, nor even to the production of any small number of commodities, but to the production of as great a variety as its soil, climate, its opportunities for foreign commerce, &c., &c., will justify; the end, to be kept constantly in view, being that the nation may have the greatest variety of commodities, which its people can either produce directly by their own industry, or procure by an exchange of their own productions for those of other nations.

If the industry of a people be but devoted to the production of a sufficient variety of commodities, we need have little doubt, either that there will be a sufficient quantity of each, or that the commodities produced will be of the highest quality. These matters will take care of themselves; since where there is no over-production of any commodity, the active demand for it, and the high price it will bear, will not only stimulate the industry of those engaged in its production, but will incite them to the acquisition of all the science, skill, machinery, &c., which will enable them to produce the commodity in the greatest abundance and of the highest excellence.

[14]

Hence, wherever we see the greatest diversity of industry, there we see the highest skill and science, and the most perfect machinery, employed in each and every department; and consequently the greatest aggregate production.

Wherever there is little diversity in industry, there is little energy, skill, science, or machinery; and the aggregate amount, neither of labor performed, nor of wealth produced, bears any reasonable comparison with that where industry is diversified.

But so great, and so constantly increasing, is this combined power of science, skill, and machinery, in the production of wealth, that unless new commodities were being constantly invented, production would outrun demand, and industry would stagnate. But as nature has set no limit to human ingenuity, in the invention of new commodities, no limit can be set to the increase of wealth, if only the necessary facilities shall exist for producing these new commodities as fast as they shall be invented.

Diversity in industry, or variety of production, has the same comparative importance, relatively to foreign commerce, that it has relatively to domestic wealth. Thus new and rare commodities are of most value in foreign commerce. That is, they bring the highest prices in proportion to the labor it costs to produce them. When any commodity becomes common and abundant, it bears a low price abroad, as well as at home, in proportion to the labor it costs to produce it. Other things being equal, therefore, the nation that is most ingenious and enterprising in the invention and manufacture of new commodities, and has the credit and currency necessary for producing them in abundance, and exporting them while they are fresh and new, will have immense advantages, in foreign commerce, over a people less ingenious and enterprising in this respect, or having less facilities of credit and currency for taking advantage of markets before the commodities shall have become stale.

But it is to be borne in mind that this great diversity in industry and production can be secured only by the pre-existence of [15] such facilities of credit and currency, as will enable individuals to engage in the production of any and every new commodity, as fast as they shall be invented; no matter how trivial the commodities may be, if only they be such as the community desire. But this universal credit, this indispensable pre-requisite to the greatest diversity in industry, can exist only under some system of currency, other than that we now have. The capacities of the present system are very limited, and are already monopolized. But the author’s system would furnish both credit and currency in any needed abundance.

Those, who oppose the freest credit, and most abundant currency, through fear of competition in their own industry, make a great mistake. Such credit and currency, by diversifying industry and production, tend not only to relieve all branches from competition and over-production, but also to create new and better markets for every commodity than before existed. The greater the diversity of industry, the fewer will be the producers, the more numerous the consumers, and the higher the prices, of each particular commodity. Every man, who commences the manufacture of a new commodity, relieves the producers of some other commodity of a competitor, and as a general rule, becomes a better customer for all other commodities than he otherwise would have been.

But this is not all. If credit were stable, and were extended (as under the author’s currency system it would be), still further than it is now in our most prosperous years, mechanical industry would be proportionally increased, and our annual production proportionally increased, over those even of what are now our most prosperous years.

There is abundant room for a great increase of mechanical industry, with a view to both foreign commerce and domestic consumption. Among at least one half our population, occupying much more than one half our national territory, the mechanic arts are as yet practised but to a very limited extent. An adequate extension of credit would carry with it a corresponding [16] increase of mechanical industry throughout the country. We have agricultural and mineral resources to sustain an indefinite increase of mechanical industry. Nothing but credit—that credit which will give to every man the means of applying his labor and ingenuity to the best possible advantage—is needed to give us the benefit of the immeasurable wealth which this increase in mechanical industry is capable of producing. For the want of this credit, a very large proportion of our people are engaged in merely manual labor, unaided by machinery. Such manual labor is, of necessity, heavy, dull, clumsy, stupid, unskilful, unscientific, and comparatively unproductive. And the consequence is, that if we are not, as a nation, poor, compared with other nations, we are at least poor, compared with what we might be.

Why should our mechanical industry be made to depend upon the contingency of the holders of specie being either able, or willing, to furnish the credit and currency which that industry requires? Why should all the mechanical labor of the country—labor capable of producing two, three, or four thousand millions of dollars per annum—be compelled to stand still, and the ten or more millions of people, dependent upon the earnings of this labor, be impoverished, and perhaps ruined, whenever the holders of one hundred millions of specie, consulting solely their own interests, decline to furnish the credit and currency necessary to keep this labor employed? Our mechanical industry has no need whatever to ask one dollar of credit, nor one dollar of currency (except for small change), of the holders of specie. There are, in the country, some seventeen thousand five hundred millions of other wealth than specie; an amount of wealth an hundred and seventy-five times greater than the amount of specie. This other wealth, if permitted to do so, is capable of furnishing, many times over, all the credit, and all the currency, which our mechanical industry can possibly require, or use. It can furnish them too, without interruption, at all times, under all circumstances, in peace and in war, in plenty and in famine, in prosper.

Endnotes

*

If, by relying solely upon specie, as the basis of our currency and credit, we lose annually, on an average, ten times as much, in our industry, as our whole stock of specie is worth, it is obviously quite time that our currency and credit were based upon something else.

*

In speaking of “the avarice of the money lenders,” I do not mean that their avarice is any greater than that of other people. They only take advantage of the markets, like every body else. The folly is on our part in forbidding by law all credit and currency except those based on gold and silver; and thus giving to the holders of gold and silver a monopoly, which they use for their own benefit, and for our destruction.

T.19 Articles of Association of the Spooner Copyright Company for Massachusetts (1863).↩

Title

[19.] Articles of Association of the Spooner Copyright Company for Massachusetts (n.p., 1863).

- also online Shorter Works, vol. 2: </titles/2292#lf1531-02_head_004>

Text

ARTICLES OF ASSOCIATION OF THE SPOONER COPYRIGHT COMPANY FOR MASSACHUSETTS.

ARTICLE I.

This Association shall be called the Spooner Copyright Company for Massachusetts.

ARTICLE II.

The Trustees of the Capital of this Association shall be Robert E. Apthorp, and Charles Hale Browne, both of Boston, and Jacob B. Harris, of Abington, all in the State of Massachusetts, the survivors and survivor of them, and their successors appointed as hereinafter prescribed.

ARTICLE III.

The Capital of said Company shall consist of all the rights conveyed to said Trustees, by Lysander Spooner, by a trust deed, of this date, of which the following is a copy, to wit:

Trust Deed.

Know all men by these presents, that I, Lysander Spooner, of Boston, in the County of Suffolk, and Commonwealth of Massachusetts, in consideration of one dollar to me paid by [2] Robert E. Apthorp, of Boston, Esquire, Charles Hale Browne, of Boston, Physician, and Jacob B. Harris, of Abington, Esquire, all in the State of Massachusetts, Trustees of the Capital of the Spooner Copyright Company for Massachusetts, the receipt of which I hereby acknowledge, and in further consideration of the promises made and entered into, by said Trustees, in the Articles of Association of said Spooner Copyright Company for Massachusetts, (which Articles bear even date herewith,) have given, granted, and conveyed, and do hereby give, grant, and convey, to said Apthorp, Browne, and Harris, and to the survivors and survivor of them, and to their successors duly appointed, in their capacity of Trustees as aforesaid, and not otherwise, all my right, title, and interest, for and within said Commonwealth of Massachusetts, (except as is hereinafter excepted,) in and to the “Articles of Association of a Mortgage Stock Banking Company,” for which a copyright was granted, under that title, to me, by the United States of America, in the year 1860.

I also, for the considerations aforesaid, hereby give, grant, and convey unto said Apthorp, Browne, and Harris, and to the survivors and survivor of them, and their successors in said trust, in their capacity as Trustees of said Spooner Copyright Company for Massachusetts, and not otherwise, all my right, title, and interest, for and within said Commonwealth of Massachusetts, (except as is hereinafter excepted,) in and to eleven other copyrighted papers, which are included in said “Articles of Association of a Mortgage Stock Banking Company,” but for which separate copyrights were also granted to me by the United States of America, in the year 1860. Said papers are respectively entitled as follows, to wit: 1. Stock Mortgage. 2. Mortgage Stock Currency. 3. Transfer of Productive Stock in Redemption of Circulating Stock. 4. Re-conveyance of Productive Stock from a Secondary to a Primary Stockholder. 5. Primary Stockholder’s Certificate of Productive Stock of the following named Mortgage Stock Banking Company. 6. Primary Stockholder’s [3] Sale of Productive Stock of the following named Mortgage Stock Banking Company. 7. Secondary Stockholder’s Certificate of Productive Stock of the following named Mortgage Stock Banking Company. 8. Secondary Stockholder’s Sale of Productive Stock of the following named Mortgage Stock Banking Company. 9. Sale, by a Primary Stockholder, of his right to Productive Stock in the hands of a Secondary Stockholder. 10. Trustee’s Bond. 11. Trust Deed. And were copyrighted under those titles respectively.

I also, for the considerations aforesaid, hereby give, grant, and convey to said Apthorp, Browne, and Harris, and to the survivors and survivor of them, and to their successors in said trust, in their capacity as Trustees of said Spooner Copyright Company for Massachusetts, and not otherwise, all right, property, interest, and claim, of every name and nature whatsoever, which, as the inventor thereof, I have, or can have, (for and within the State of Massachusetts only,) either in law, equity, or natural right, in and to the banking system, or Currency system, (as an invention,) and every part thereof, which is embodied or described in the said “Articles of Association of a Mortgage Stock Banking Company,” and in the other copyrighted papers hereinbefore mentioned, whether such right, property, interest, and claim now are, or ever hereafter may be, secured to me, my heirs, or assigns, by said copyrighted Articles and papers, or by patent, or by statute, or by common, or constitutional, or natural law—subject only to the exceptions and reservations hereinafter made in behalf of banking companies, whose capitals shall consist either of rail-roads and their appurtenances, or of mortgages or liens upon rail-roads and their appurtenances, (situated within the State of Massachusetts and elsewhere,) or of lands or other property situated outside of the State of Massachusetts.

It being my intention hereby to convey, and I do hereby convey, to said Apthorp, Browne, and Harris, and to the survivors and survivor of them, and to their successors in said trust, in their capacity as Trustees as aforesaid, and not otherwise, all my [4] right, title, and interest, of every name and nature whatsoever, either in law, equity, or natural right, (except as is hereinafter excepted,) in and to said “Articles of Association of a Mortgage Stock Banking Company,” and in and to all the other beforementioned copyrighted papers, and in and to the invention embodied or described in said Articles and papers, so far as, and no farther than, the same may or can be used by Banking Companies, whose banking capital shall consist of lands, or other real property, (except rail-roads and their appurtenances,) or of mortgages or liens upon lands, or other real property, (except rail-roads and their appurtenances,) situate wholly within said Commonwealth of Massachusetts, and not elsewhere.

And I also, for the considerations aforesaid, hereby give, grant, and convey to said Apthorp, Browne, and Harris, and to the survivors and survivor of them, and to their successors in said trust, in their capacity as Trustees of the capital of said Spooner Copyright Company for Massachusetts, and not otherwise, full power and authority to grant to any and all Banking Companies that may hereafter be lawfully licensed by said Spooner Copyright Company for Massachusetts, and organized under said “Articles of Association of a Mortgage Stock Banking Company,” or any modification thereof, within said Commonwealth of Massachusetts, and upon capital consisting of lands or other real property, (except rail-roads and their appurtenances,) or of mortgage or liens upon lands, or other real property, (except rail-roads and their appurtenances,) situate exclusively within said State of Massachusetts, the right and liberty to establish and maintain offices at pleasure in any and all other States and places within the United States of America, or any Territories or Districts thereto belonging, or supposed or believed to belong thereto, for the sale, loan, and redemption both of their Productive and Circulating Stock, without any charge, let, or hindrance by or from me, the said Spooner, or my heirs or assigns.

And I hereby expressly reserve to myself, my heirs and assigns, the full and exclusive right to grant to any and all [5] Banking Companies, that may be organized under said “Articles of Association of a Mortgage Stock Banking Company,” or any modification thereof, and whose capitals shall consist wholly of lands, or other property, or of mortgages upon lands, or other property, situate wholly outside of the State of Massachusetts, the right to establish and maintain at pleasure, within the State of Massachusetts, offices for the sale, loan, and redemption both of their Productive and Circulating Stock, without any charge, let, or hindrance by or from said Spooner Copyright Company for Massachusetts, or the Trustees thereof.

And I do also hereby expressly reserve to myself, my heirs, and assigns, the full and exclusive right to the sale and use of said “Articles of Association of a Mortgage Stock Banking Company,” or any parts or modification thereof, so far as the same may or can be used by Banking Companies, whose capitals shall consist exclusively of rail-roads and their appurtenances, or of mortgages or liens upon rail-roads and their appurtenances, situate either within the State of Massachusetts, or elsewhere.

The rights hereby conveyed are to constitute, and are hereby conveyed solely that they may constitute, the capital, or capital stock, of said Spooner Copyright Company for Massachusetts, and are to be held, used, employed, managed, and disposed of by the Trustees of said Company in accordance, and only in accordance, with the Articles of Association of said Spooner Copyright Company for Massachusetts; which Articles have been agreed to by said Apthorp, Browne, and Harris, and me, the said Spooner, and bear even date herewith.

To have and to hold to said Apthorp, Browne, and Harris, and to the survivors and survivor of them, and to their successors in said trust, in their capacity as Trustees of said Spooner Copyright Company for Massachusetts, and not otherwise, all the rights hereinbefore described to be conveyed to them, to be held, used, employed, managed, and disposed of, in accordance, and only in accordance, with said Articles of Association of said Spooner Copyright Company for Massachusetts, forever.

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And I do hereby covenant and agree to and with said Apthorp, Browne, and Harris, the survivors and survivor of them, and their successors in said trust, in their capacity as Trustees of said Spooner Copyright Company for Massachusetts, and not otherwise, that I am the true, sole, and lawful owner of all the rights hereinbefore mentioned as intended to be hereby conveyed; that they are free of all incumbrances; that I have good right to sell and convey the same as aforesaid; and that I will, and my heirs, executors, and administrators shall, forever warrant and defend the same to the said Apthorp, Browne, and Harris, and to the survivors and survivor of them, and to their successors in said trust, in their capacity as Trustees of said Spooner Copyright Company for Massachusetts, and not otherwise, against the lawful claims and demands of all persons.

In witness whereof, I, the said Lysander Spooner, have set my hand and seal to three copies of this deed, on this twentieth day of March, in the year eighteen hundred and sixty three.

Signed, sealed, and delivered in presence of

BELA MARSH, }

LYSANDER SPOONER.

[SEAL.]

THOMAS MARSH. }

Suffolk, ss. 20 March, 1863.

Then Lysander Spooner personally acknowledged the above instrument to be his free act and deed.

Before me Geo. W. Searle, Justice of the Peace.

ARTICLE IV.

1. The aforesaid capital shall be held in joint stock by the Trustees of said Spooner Copyright Company for Massachusetts, at the nominal value of one million dollars, and divided into two thousand shares, of the nominal value of five hundred dollars each.

2. Said shares shall be numbered consecutively from one to two thousand inclusive.

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3. They are all hereby declared to be the property of said Lysander Spooner, and shall be entered as such upon the books of the Trustees.

ARTICLE V.

Whenever any of the before-named shares of Stock shall be conveyed, the particular numbers borne by the shares conveyed shall be specified, both in the instrument of conveyance, (where that shall be reasonably practicable,) and on the books of the Trustees.

ARTICLE VI.

1. Any person, who shall, at any time, be a holder of fifty shares of the Stock of said Copyright Company, may, for the time being, either be a Director, or appoint one in his stead, at his election. And for every additional fifty shares, so owned by him, he may appoint an additional Director. Or he may, by himself or by proxy, give one vote, as Director, for each and every fifty shares of Stock of which he may, at the time, be the owner. Provided that no person, by purchasing Stock, shall have the right to be, or appoint, a Director for the same, so long as there shall be in office a Director previously appointed for the same Stock.

2. Any two or more persons, holders respectively of less than fifty shares, but holding collectively fifty or more shares, may, at any time, unite to appoint one Director for every fifty shares of their Stock. Provided, however, that no persons, purchasing Stock, shall have the right to appoint a Director on account of such Stock, so long as there shall be in office a Director previously appointed for the same Stock.

3. All appointments of Directors shall be made by certificates addressed to, and deposited with, the Trustees, and stating specifically the shares for which the Directors are appointed respectively. And such appointments shall continue until the first day of January [8] next after they are made, unless they shall be, before that time, rescinded (as they may be), by those making them.

4. The Board of Directors may, by ballot, choose their President, who shall hold his office during the pleasure of the Board. Whenever there shall be no President in office, by election, the largest Stockholder who shall be, in person, a member of the Board, shall be the President.

5. The Directors, by a majority vote of their whole number, may fix their regular times of meeting, and the number that shall constitute a quorum for business.

6. The Directors shall exercise a general supervision, and so far as they may see fit, a general control, over the expenditures and all other business affairs of the Company. They may appoint a Treasurer, Attorney, and other clerks and servants of the Company; and take bonds, running to the Trustees, for the faithful performance of their duties.

7. The Directors shall keep a record of all their proceedings; and shall furnish to the Trustees written copies of all orders, rules, and regulations which may be adopted by the Directors, for the guidance of the Trustees.

8. The Directors shall receive no compensation for the performance of their ordinary duties. But they may vote a reasonable compensation to the President. And for any extraordinary services, performed by individual Directors, reasonable compensation may be paid.

ARTICLE VII.

1. With the consent of the Directors, the Trustees may grant to Banking Companies, whose capitals shall consist wholly of mortgages upon lands situated within the State of Massachusetts, and to none others, the right to use the aforesaid “Articles of Association of a Mortgage Stock Banking Company,” and all the other before-mentioned copyrighted papers, (that are included in said Articles of Association,) so far as it may be convenient [9] and proper for such Banking Companies to use said Articles and other copyrighted papers in carrying on the business of said Companies as bankers, and not otherwise.

2. The license granted to said Banking Companies to use said “Articles of Association of a Mortgage Stock Banking Company,” and other copyrighted papers, shall be granted by an instrument in the following form, (names, dates, and numbers being changed to conform to the facts in each case,) to wit:

License to a Mortgage Stock Banking Company.

Be it known that we, A——— A———, B——— B———, and C——— C———, all of ———, in the State of Massachusetts, Trustees of the Spooner Copyright Company for Massachusetts, by virtue of the power and authority in us vested by the Articles of Association of said Spooner Copyright Company for Massachusetts, and having the consent of the Directors of said Company hereto, in consideration of one thousand dollars, to us paid by D——— D———, E——— E———, and F——— F———, all of Princeton, in the County of Worcester, and Commonwealth of Massachusetts, Trustees of the Princeton Banking Company,—a Mortgage Stock Banking Company, located in said town of Princeton, and having its capital of one hundred thousand dollars, made up of mortgages upon lands and buildings in said town of Princeton, and this day organized under the “Articles of Association of a Mortgage Stock Banking Company,” for which a copyright was granted, by the United States of America, to Lysander Spooner, in the year 1860,—the receipt of which sum of one thousand dollars is hereby acknowledged, do hereby give, grant, and convey unto said Princeton Banking Company, and to said Trustees of said Princeton Banking Company, and to the survivors and survivor of them, and to their successors in said trust, in their capacity as trustees of said Princeton Banking Company, and not otherwise, the right, privilege, and license to [10] use one set (a copy of which is hereto annexed) of said “Articles of Association of a Mortgage Stock Banking Company,” and of eleven other papers, that were copyrighted by said Spooner, in 1860, and are included in said Articles, and are respectively entitled as follows, to wit: 1. Stock Mortgage. 2. Mortgage Stock Currency. 3. Transfer of Productive Stock in Redemption of Circulating Stock. 4. Re-conveyance of Productive Stock from a Secondary to a Primary Stockholder. 5. Primary Stockholder’s Certificate of Productive Stock of the following named Mortgage Stock Banking Company. 6. Primary Stockholder’s Sale of Productive Stock of the following named Mortgage Stock Banking Company. 7. Secondary Stockholder’s Certificate of Productive Stock of the following named Mortgage Stock Banking Company. 8. Secondary Stockholder’s Sale of Productive Stock of the following named Mortgage Stock Banking Company. 9. Sale, by a Primary Stockholder, of his right to Productive Stock in the hands of a Secondary Stockholder. 10. Trustee’s Bond. 11. Trust Deed.

Said Princeton Banking Company, and the Trustees thereof, are hereby authorized to use said “Articles of Association of a Mortgage Stock Banking Company,” and all the other copyrighted papers before mentioned, so far as the same may or can be legitimately used in doing the banking business of said Princeton Banking Company, and not otherwise; and to continue such use of them during pleasure.

The right, privilege, and license hereby granted, are granted subject to these express conditions, viz: that all copies of said “Articles of Association of a Mortgage Stock Banking Company,” and of all the other before mentioned copyrighted papers, which may ever hereafter be printed or used by said Princeton Banking Company, or the Trustees thereof, shall be respectively exact and literal copies of those hereto annexed; and shall have the name of said Princeton Banking Company (and of no other Banking Company) printed in them; and shall also, each and all of them, bear the proper certificate of copyright in these [11] words and figures, to wit: “Entered according to Act of Congress, in the year 1860, by Lysander Spooner, in the Clerk’s Office of the District Court of the United States, for the District of Massachusetts.” Said certificate to be printed immediately under, and next to, the titles of the articles and papers copyrighted, in the same manner as in the copies hereto annexed. Subject to these conditions, said Princeton Banking Company, and the Trustees thereof, are to have the right of printing so many copies of each and all the before mentioned papers, as they may find necessary or convenient in carrying on the business of said Company as bankers, under their present name and organization, and not otherwise.

And furthermore, for the consideration aforesaid, we, the aforesaid Trustees of the Spooner Copyright Company for Massachusetts, hereby give, grant, and convey to said Princeton Banking Company, and to the Trustees thereof, in their capacity as such Trustees, and not otherwise, the right, liberty, and privilege to establish at pleasure offices in any and all other towns and places, other than said Princeton, not only in said State of Massachusetts, but in any and all other States of the United States, and in any and all Territories, Districts, or other places, belonging, or supposed to belong, to the United States, for the sale, loan, and redemption both of their Circulating and Productive Stock, free of all charge, let, or hindrance by or from the said Lysander Spooner, or any other persons claiming by, through, or under him.

In Witness Whereof, we, the said A——— A———, B——— B———, and C——— C———, Trustees of said Spooner Copyright Company for Massachusetts, have set our hands and the seal of said Copyright Company to ——— copies of this License, this ——— day of ———, in the year eighteen hundred and ———.

SEAL.

A———

A———, }

Trustees of the Spooner Copyright Company for Massachusetts.

B———

B———, }

C———

C———, }

Signed, sealed and delivered in presence of

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3. The signatures of two of the Trustees (and of one, if at the time there shall be but one Trustee), to any license, shall be sufficient in law.

4. To every copy of the License granted as aforesaid shall be attached one complete set of the papers licensed by it to be used, to wit: one copy of the “Articles of Association of a Mortgage Stock Banking Company,” and separate copies of each of the other eleven copyrighted papers hereinbefore described, and included in said Articles.

ARTICLE VIII.

1. Whenever the Trustees of said Spooner Copyright Company for Massachusetts, shall grant to any Banking Company the right to use said “Articles of Association of a Mortgage Stock Banking Company,” and the other copyrighted papers included therein, they (the said Trustees), shall superintend the printing of said “Articles” and other copyrighted papers, (as well those that shall be printed together, as those that shall be printed separately,) and shall see that they are all correct in form, following strictly the copies of the same which are hereto annexed, (changing only dates, numbers, names of persons and places, &c., to make them correspond with the facts in each case,) and shall see that they all have printed in them the name of the particular Banking Company for whose use they are designed, and of no other; and shall also see that they each and all have the proper certificate of copyright printed on said “Articles” and other copyrighted papers, immediately under, and next to, the titles thereof respectively, in the following words and figures, to wit: “Entered according to Act of Congress, in the year 1860, by Lysander Spooner, in the Clerk’s office of the District Court of the United States, for the District of Massachusetts.”

2. And said Trustees of said Spooner Copyright Company for Massachusetts shall retain at least five copies (one for each of themselves, one for the Directors of said Copyright Company, and [13] one for said Lysander Spooner, his heirs, executors, administrators, or assigns, if demanded by him or them), of every set of said “Articles” and other copyrighted papers, the use of which may be granted to any Banking Company, or Banking Companies; said copies to be verified by the certificate and signatures both of said Trustees themselves, and of the Trustees of the Banking Companies to whom the right of using said “Articles,” and other copyrighted papers, shall be granted.

3. And the copies so retained by the Trustees and Directors of the Spooner Copyright Company for Massachusetts, (except those retained for said Spooner, his heirs, executors, administrators, and assigns, which shall be delivered to him or them on demand,) shall be forever preserved for the benefit, and as the property, of said Copyright Company; each Trustee retaining the custody of one copy; and all copies in the possession of any one Trustee being transferred to his immediate successor forever, and receipts taken therefor.

ARTICLE IX.

1. Previous to granting to any Banking Company the right to use said “Articles of Association of a Mortgage Stock Banking Company,” and other copyrighted papers before mentioned, the Trustees of said Spooner Copyright Company for Massachusetts, and also the Directors of said last named Company, or a committee or agent thereof, (if the Directors shall see fit either to investigate the matter for themselves, or to appoint a committee or agent to act for them,) shall carefully and faithfully examine all the mortgages which shall be proposed as the capital of such Banking Company, and all certificates and other evidences that may be offered to prove the sufficiency of the mortgaged property, the validity of the mortgages themselves, and the freedom of the mortgaged premises from all incumbrances of every name and nature whatsoever, unless it be the liens of Mutual Insurance Companies for assessments on account of insurance of the premises.

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2. And the right to use said “Articles of Association of a Mortgage Stock Banking Company,” and other copyrighted papers shall not be granted to any Banking Company, unless two at least of the Trustees of the Spooner Copyright Company for Massachusetts (and also the Directors, or a committee or agent thereof, if the Directors, or a committee or agent thereof, shall act on the subject), shall be reasonably satisfied that each and every piece of mortgaged property is worth, at a fair and just valuation, double the amount for which it is mortgaged to the Trustees of the Banking Company, and that it is free of all prior incumbrance of every name and nature whatsoever, (except for insurance as aforesaid,) and that the title of the mortgagor is absolute and perfect.

3. The Trustees of said Spooner Copyright Company for Massachusetts (and also the Directors, or a committee or agent thereof, if they shall see fit to act on the subject), shall require each and every mortgagor to give to the Trustees of the Banking Company a good and ample policy of insurance against fire upon the buildings upon any and all property mortgaged as aforesaid, unless they shall be satisfied that the mortgaged property is worth, independently of the buildings, double the amount of the mortgage.

ARTICLE X.

1. The price or premium demanded or received, by said Spooner Copyright Company for Massachusetts, for the use of said “Articles of Association of a Mortgage Stock Banking Company,” and the other copyrighted papers before mentioned, by any one Banking Company, shall not (except as hereinafter provided), exceed one per centum upon the capital of the Banking Company licensed to use said “Articles” and other copyrighted papers. By this is meant, not one per centum per annum, but one per centum outright; the Banking Company being then free to continue the use of said “Articles” and other copyrighted papers during pleasure.

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2. In addition to the one per centum before mentioned, and as a preliminary to either granting or refusing to any proposed Banking Company the right to use said “Articles” and other copyrighted papers, said Copyright Company may, by vote of the Directors, demand and receive a sum not exceeding one tenth of one per centum on the capital of such proposed Banking Company, as compensation for the labor of the Trustees, and Directors, and their committee or agent, in examining the mortgages and other papers of such Banking Company.

3. The Copyright Company aforesaid may also, by vote of the Directors, charge an additional sum, not exceeding one tenth of one per centum on the capital of any Banking Company, as a compensation for the labor of the Trustees of the former Company, (and of the Directors, or any committee, or agent thereof, if they shall act on the matter,) in superintending the printing, stereotyping, or engraving of said “Articles” and other copyrighted papers to be used by such Banking Company.

4. If said Copyright Company shall ever themselves (as they are hereby authorized to do), undertake the business of printing, stereotyping, or engraving the “Articles of Association of a Mortgage Stock Banking Company,” and other before mentioned copyrighted papers, for the use of the Banking Companies that may be licensed to use said “Articles” and other copyrighted papers, said Copyright Company may demand and receive for such printing, stereotyping, and engraving, and for the paper consumed in so doing, and for any stereotype or engraved plates made by them, and sold to said Banking Companies, any sum not exceeding double the necessary and proper amount actually paid, by said Copyright Company, for the labor employed, and materials consumed, in printing, stereotyping, and engraving said “Articles” and other copyrighted papers, and in making such stereotype and engraved plates; but in ascertaining that amount, no account shall be taken of the rent of buildings owned or leased by said Copyright Company, and occupied in said printing, stereotyping, or engraving; nor of the wear or destruction of [16] any of said Copyright Company’s type, printing presses, or other material or machinery employed in the process of such printing, stereotyping, or engraving; nor of the labor of superintending such processes either by the Trustees, Directors, or agents of said Copyright Company (except as is provided for in the third clause of this Article).

5. Except as is provided for and authorized by the preceding clauses of this Article, said Copyright Company shall not, in any case whatever, neither directly nor indirectly, nor by any evasion, nor on any pretence, whatever, make any charge or demand upon any Banking Company, nor any addition to the before mentioned charges or prices, for the right to use said “Articles of Association of a Mortgage Stock Banking Company,” and other copyrighted papers, nor for any printed, stereotyped, or engraved copies of said “Articles,” or other copyrighted papers; nor for any stereotyped or engraved plates of said “Articles,” or other copyrighted papers; nor shall said Copyright Company ever hereafter attempt, in any mode, or by any means, either directly or indirectly, to increase the receipts or profits of said Copyright Company, (beyond the amounts hereinbefore specified,) neither from the licenses granted to Banking Companies to use said “Articles of Association of a Mortgage Stock Banking Company,” and other copyrighted papers; nor by furnishing to Banking Companies printed or engraved copies of said “Articles,” or other copyrighted papers, or stereotyped or engraved plates of said “Articles,” or other copyrighted papers, unless under the following circumstances and conditions, to wit: During the life-time of said Lysander Spooner, and with his formal and written consent, or after his death, without his consent having ever been given, the prices of all kinds before mentioned may be increased at discretion by written and recorded resolutions or orders that shall have been personally signed both by Directors representing in the aggregate not less than three-fourths of the capital stock of said Copyright Company and also by Stockholders owning in the aggregate not less than three-fourths of all [17] the capital stock of said Copyright Company. Provided, however, that, after the death of said Spooner, no such increase of prices or income shall be attempted or adopted, in the manner mentioned, by the votes of Directors and Stockholders, unless a similar increase shall have been first agreed upon to be adopted by similar votes of the Directors and Stockholders of a majority of all similar Copyright Companies that may then be in existence in all the States of the United States.

6. All the before mentioned prices may be reduced at discretion, from the highest amounts named, by votes of the Directors, or of the holders of a majority of the stock.

ARTICLE XI.

With the consent of the Directors, said Spooner Copyright Company for Massachusetts may hold so much real and personal estate as may be needful or convenient for the proper uses and business of said Company, and especially for carrying on the business of printing, stereotyping, and engraving the before mentioned “Articles of Association of a Mortgage Stock Banking Company,” and other copyrighted papers, for the use of Banking Companies, that may be licensed, by said Copyright Company, to use said “Articles” and other copyrighted papers.

ARTICLE XII.

Neither said Spooner Copyright Company for Massachusetts, nor the Trustees, nor Directors, nor any agent or officer of said Company, shall have power to contract any debt that shall be binding upon the private property of any Stockholder, or compel the sale of his stock. But said Company, through the Trustees, and with the consent of the Directors, may, for legitimate and proper objects, pertaining directly to the proper business of said Company, contract debts that shall pledge, and be binding upon, and operate as a lien upon, all the receipts and revenues of [18] the Company, and all the real and personal estate of the Company, other than the copyright property which constitutes the capital stock of the Company.

ARTICLE XIII.

Each one of the Trustees of said Spooner Copyright Company for Massachusetts shall receive, in each year, as compensation for his services as Trustee, five per centum of all the net income of the Company for the year, payable semi-annually, or oftener, at the discretion of the Directors.

ARTICLE XIV.

No dividend shall ever be paid to any Stockholder in said Spooner Copyright Company for Massachusetts, except from net income actually accumulated.

ARTICLE XV.

In granting to Banking Companies the right to use the aforementioned “Articles of Association of a Mortgage Stock Banking Company,” and the other copyrighted papers before mentioned, no change shall ever be made from the copies of said “Articles” and other papers hereto annexed, (except the changes of names, dates, numbers, &c., to correspond to the facts in each case,) during the life time of said Lysander Spooner, unless with his formal consent given in writing, and particularly specifying the changes to which he consents. Nor shall any such changes be made, either before or after the death of said Spooner, unless in accordance with a written and recorded vote resolution, or order, signed by a Stockholder or Stockholders personally, (and not by any agent or attorney,) owning, in the aggregate, at least three-fourths of all the capital stock of said Spooner Copyright Company for Massachusetts. Nor shall any such changes be made, after the death of said Spooner, unless the same changes [19] shall have been first agreed upon, (in the same manner,) to be adopted by a majority of all the similar Copyright Companies that may then be in existence in all the States of the United States.

ARTICLE XVI.

Any Trustee of said Spooner Copyright Company for Massachusetts, may be removed from his office of Trustee, by the vote or votes of any Stockholder or Stockholders owning, at the time, not less than three-fourths of all the stock of the Company. Said vote or votes shall be expressed by two records, one to be kept by the Trustees, the other by the Directors, and both subscribed by the Stockholder or Stockholders personally, (and not by any agent or attorney,) declaring his or their wish or determination that the Trustee be removed. And such records shall, from the moment of their being so subscribed, and the other Trustees or Trustee notified thereof, operate to cancel all his rights and powers as a Trustee, and vacate his place as Trustee, and make it liable to be filled by another. In subscribing such vote, each Stockholder shall affix to his signature the number of shares of which he shall be, at the time, the holder, and also the particular numbers borne by such shares.

ARTICLE XVII.

Whenever a vacancy shall occur in the office of a Trustee, it may be filled by the vote or votes of any Stockholder or Stockholders owning, at the time, not less than three-fourths of all the stock of the Company. Such vote shall be expressed by two records, one to be kept by the Directors, the other by the Trustees, and both subscribed by the Stockholder or Stockholders personally, and not by any agent or attorney, declaring his or their wish and choice that the individual named shall be the Trustee. And such records, on being deposited with the Directors and Trustees respectively, shall entitle the individual so [20] elected to demand that his appropriate interest, as Trustee, in the capital stock of the Company, be at once conveyed to him by the other Trustees, or Trustee. And upon such interest being conveyed to him, he shall be, to all intents and purposes, a Trustee, equally with the other Trustees, or Trustee. And the instrument conveying to him his interest, as Trustee, in the capital stock of the Company, shall be acknowledged and recorded in accordance with the laws of the United States for the conveyances of copyrights, or any interest therein.

ARTICLE XVIII.

The signatures of any two of the Trustees (or of one, if at the time there shall be but one Trustee) to certificates of the Stock of the Company, shall be sufficient in law.

ARTICLE XIX.

If required by the Directors, the Trustees shall give reasonable bonds for the faithful performance of their duties. Said bonds shall run to the Directors, for and on behalf of the Stockholders collectively and individually.

ARTICLE XX.

The Trustees shall have a seal with which to seal certificates of stock, licenses, and any other papers, to which it may be proper to affix their seal.

ARTICLE XXI.

Transfers of the stock of the Company, not made originally in the books of the Company, shall not be valid, against innocent purchasers for value, until recorded on the books of the Company.

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ARTICLE XXII.

The Trustees shall keep books fully showing, at all times, their proceedings, and the affairs of the Company. And these books shall, at all reasonable times, be open to the inspection both of the Directors, and of Stockholders.

ARTICLE XXIII.

Every Stockholder shall be entitled, of right, to one copy of the Articles of Association of the Company.

ARTICLE XXIV.

These Articles of Association of the Spooner Copyright Company for Massachusetts, may be altered by the vote or votes of any Stockholder or Stockholders owning, at the time, not less than four fifths of the stock of the Company. Such vote or votes shall be expressed by two records, one to be kept by the Trustees, the other by the Directors, and both subscribed by the Stockholder or Stockholders personally, (and not by any agent or attorney,) declaring in precise terms the alterations to be made. But no alteration shall ever be made, injuriously affecting the previous rights of any Stockholder relatively to any or all other Stockholders. Nor shall any change ever be made affecting the provisions of Articles X and XV. Nor shall any change ever be made in Article XII, without the vote of every Stockholder expressed in the manner aforesaid.

In Witness Whereof, I, the said Lysander Spooner, and we, the sai d Robert E. Apthorp, Charles Hale Browne, and Jacob B. Harris, Trustees as aforesaid, in token of our acceptance of said trust, and of our promise to fulfil the same faithfully and honestly, have set our hands and seals to six copies of these Articles of Association, consisting of twenty-two printed [22] pages, and have also set our names upon each leaf of said Articles, this twentieth day of March, in the year eighteen hundred and sixty-three. We have also, on the same day, set our names upon each leaf of six copies of the “Articles of Association of a Mortgage Stock Banking Company,” hereinbefore mentioned, one copy of which is hereto annexed, consisting of fifty-nine printed pages.

LYSANDER SPOONER. [seal.]

R. E. APTHORP. [seal.]

CHS. HALE BROWNE. [seal.]

J. B. HARRIS. [seal.]

Signed, sealed, and delivered in presence of

Saml. Batcheller, Jr., George M. Wollinger.

T.20 Considerations for Bankers, and Holders of United States Bonds (1864).↩

Title

[20.] Considerations for Bankers, and Holders of United States Bonds (Boston: A. Williams & Co., 1864).

- also online Shorter Works, vol. 2: </titles/2292#lf1531-02_head_008>

Text

CONSIDERATIONS FOR BANKERS.

CONSIDERATIONS

FOR

BANKERS,

and

HOLDERS OF UNITED STATES BONDS.

BY LYSANDER SPOONER.

BOSTON:

A. WILLIAMS & CO., 100 WASHINGTON STREET.

NEW-YORK: American News Company, 121 Nassau Street.

1864.

[3]

Entered according to Act of Congress, in the year 1864,

By LYSANDER SPOONER

in the Clerk’s office of the District Court of the United States, for the District of Massachusetts.

[4]

CONTENTS.

- Chapter I.—Explanation of the Author’s New System of Paper Currency, . . . . . 5

- Chap. II.—The Author’s System Cannot be Prohibited by the States, . . . . . 15

- Chap. III.—The Author’s System Cannot be Taxed, either by the United States, or the States, . 27

- Chap. IV.—The State Governments Cannot Control, nor in any Manner Interfere with, the Author’s System, . . . . . 33

- Chap. V.—Unconstitutionality of the Legal Tender Acts of Congress, . . . . . 37

- Chap. VI.—Unconstitutionality of the United States Banking Act, . . . . . 71

- Chap. VII.—Exchanges under the Author’s System, . 85

- APPENDIX

- The Author’s Copyright, . . . . . . 89

[5]

CHAPTER I.: EXPLANATION OF THE AUTHOR’S NEW SYSTEM OF PAPER CURRENCY.

The principle of the system is, that the currency shall represent an invested dollar, instead of a specie dollar.

The currency will, therefore, be redeemable, in the first instance, by an invested dollar, unless the bankers choose to redeem it with specie.

The capital is made up of a given amount of property deposited with trustees.

This capital is never diminished; but is liable to pass into the hands of new holders, in redemption of the currency, if the trustees fail to redeem the currency with specie.

The amount of currency is precisely equal to the nominal amount of capital.

When the currency is returned for redemption, (otherwise than in payment of debts due the bank,) and the trustees are not able, or do not choose, to redeem it with specie, they redeem it by a conditional transfer of a corresponding portion of the capital. And the conditional holder of the capital thus transferred, holds [6] it, and draws interest upon it, until the trustees redeem it, by paying him its nominal value in specie.

Under certain exceptional and extraordinary circumstances, this conditional transfer of a portion of the capital, becomes an absolute transfer; and the conditional holder of the capital transferred, becomes an absolute holder of it—that is, an absolute stockholder in the bank.

In such cases, therefore, the final redemption of the currency consists in making the holders of the currency bona fide stockholders in the bank itself.

To repeat, in part, what has now been said:

The currency, besides being receivable for debts due the bank, is redeemable, first, with specie, if the bankers so choose; or, secondly, by a conditional transfer of a part of the capital.

The capital, thus conditionally transferred, may be itself redeemed, by the bank, on paying its nominal value in specie, with interest from the time of the transfer.

Or, this conditional transfer, of a portion of the capital, may, under certain circumstances, become an absolute transfer.

A holder of currency, therefore, is sure to get for it, either specie on demand; or specie, with interest, from the time of demand; or an amount of the capital stock of the bank, corresponding to the nominal value of his currency.

In judging of the value of the currency, therefore, he judges of the value of the capital; because, in certain contingencies, he is liable to get nothing but the capital for his currency. But if the capital be worth par of specie, or more than par of specie, he infers that his currency will be redeemed, either in specie on demand, or by a temporary transfer of capital; which capital will afterwards be itself redeemed with specie.

All that is necessary to make a bank, under this system, a sound one, is, that its capital shall consist of productive property—its actual value fully equal to, or a little exceeding, its nominal value—and of a kind not perishable, or likely to depreciate in value.

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Mortgages, rail-roads, and public stocks will probably be the best capital; and most likely they are the only capital which it will ever be expedient to use.

If further explanation of the nature of the system be needed, at this point, it can be given—more easily, perhaps, than in any other way—by supposing the capital to consist of land—as follows:

Suppose that A is the owner of one hundred, B of two hundred, C of three hundred, and D of four hundred, acres of land; that all these lands are of uniform value, to wit, one hundred dollars per acre; that they will always retain this value; and that they are all under perpetual leases at an annual rent of six dollars per acre.

A, B, C, and D, put all these lands into the hands of trustees, to be held as banking capital; making an aggregate capital of one hundred thousand dollars. Their rights, as lessors, going with the lands into the hands of the trustees—that is, the trustees being authorized to receive the rents, and apply them to the uses of the bank, if they should be needed.

A, B, C, and D, then, are the bankers, doing business through the trustees.

Their dividends, as bankers, it is important to be noticed, will consist both of the rents of the lands, and the profits of the banking; making dividends of twelve per cent. per annum, if the banking profits should be six per cent.

The banking will be done in this way—

The trustees will make certificates for one, two, three, five, ten dollars, and so on, to the aggregate amount of one hundred thousand dollars; corresponding to the whole value of the lands.

These certificates will be issued for circulation as currency, by discounting notes, &c.

Each certificate will be, in law, a lien upon the lands for one dollar, or for the number of dollars expressed in the certificate.

The conditions of this lien will be these—

1. That these certificates shall be a legal tender in payment of all debts due the bank.

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2. That when one hundred dollars of these certificates shall be presented for redemption, the trustees, unless they shall redeem them with specie, shall give the holder a conditional title to one acre of land. This conditional title will empower the holder to demand of the trustees rent for that acre, at the rate of six dollars per annum, until they redeem the acre itself, by paying him an hundred dollars in specie for it. And no dividends shall be made by the trustees, to the bankers, (A, B, C, and D,) either from the rents of any of the other lands, or from the profits of banking, until this conditional title to the one acre, given to the holder of currency, shall have been cancelled, by the payment of the hundred dollars in specie, with interest, or rent, for the time the conditional title shall have been in his hands.

3. That when certificates are presented for redemption, in sums less than one hundred dollars, the trustees, unless they redeem them with specie on demand, shall redeem them with specie, (adding interest, except on small sums,) before making any dividends, either of rents, or banking profits, to the bankers (A, B, C, and D).

4. Whenever an acre of land shall have been conditionally transferred in redemption of currency, a corresponding amount of currency (one hundred dollars) must be reserved from circulation, until that acre shall have been redeemed by the bank; to the end that there may never be in circulation a larger amount of currency, than there is of land, in the hands of the bankers, with which to redeem it.

5. So long as any of the lands shall remain the property of the original bankers, (A, B, C, and D,)—free of any conditional title, as before mentioned—the trustees will have the right, as their agents, to cancel all conditional titles, by paying an hundred dollars in specie for each acre, with interest, (or rent,) at the rate of six per cent. per annum, during the time the conditional title shall have been outstanding. And the trustees must do this, before they make any dividends, either of rents, or banking profits, to the bankers themselves.

[9]

But if, at any time, the banking shall be so badly managed, as that it shall become necessary for the trustees to give conditional titles to the whole thousand acres, (constituting the entire capital of the bank), the rights of the original bankers (A, B, C, and D) in the lands, shall then be absolutely forfeited into the hands of those holding the conditional titles; who will then become absolute owners of them (as banking capital, in the hands of the same trustees)—in the same manner as A, B, C, and D had been before; and will go on banking with them in the same way as A, B, C, and D had done, and through the agency of the same trustees.

This currency, it will be seen, must necessarily be forever solvent—supposing, as we have done, that the lands retain their original value. It will be absolutely incapable of insolvency; for there can never be a dollar of currency in circulation, without there being a dollar of land, in the hands of the bankers, (or their trustees,) which must be transferred (one acre of land for a hundred dollars of currency) in redemption of it, unless redemption be made in specie. All losses, therefore, fall upon the bankers, (in the loss of their lands,) and not upon the bill holders. If the bankers should fail—that is to say, if they should be compelled to transfer all their lands in redemption of their circulation—the result would simply be, that the lands would pass, unincumbered, into the hands of a new set of holders—to wit, the conditional holders—who would have received them in redemption of the currency—and who would proceed to bank upon them, (reissue the certificates, and redeem them, if necessary, by the transfer of the lands,) in the same way that their predecessors had done. And if they too, should lose all the lands, by the transfer of them in redemption of the currency, the lands would pass, unincumbered, into the hands of still another set of holders, (the second body of conditional holders, who will now become absolute holders,) who would bank upon them, as the others had done before them. And this process would go on indefinitely, as often as one set of bankers should [10] fail (lose all their lands). Whenever one set of bankers should have made such losses as to compel the conditional transfer of all their lands, the conditional transfers would become absolute transfers, and the lands would pass absolutely into the hands of a new set of holders (the conditional holders); and the bank, as a corporation, would be just as solvent as at first. So that, however badly the banking business should be conducted, and however frequently the bankers might fail, (if transferring all their capital (lands), in redemption of their circulation, may be called failing,) the bank itself, as a corporation, could not fail. That is to say, its circulation could never fail of redemption. The lands (the capital) would forever remain intact; forever equivolent to the circulation; and forever subject to a compulsory demand in redemption of the circulation. In this way all losses necessarily fall upon the bankers, (in the loss of their capital, the lands,) and not upon the bill holders, who are sure to get the capital (lands), dollar for dollar, for their currency, if they do not get specie.

From the preceding explanation it will be seen that, if all lands were of an uniform value, and were to retain that value in perpetuity, it would be perfectly easy to use them as banking capital, under the author’s system, and thus create the most abundant and solvent currency that could be desired.

But all lands are not of a uniform value; and, therefore, they cannot be used, acre by acre, as banking capital, under this system. Nevertheless, by means of mortgages, lands may be used as banking capital; since mortgages upon lands can be made to any desirable extent, and all of a uniform value; or at least nearly enough so for all practical purposes. And this value they will retain in perpetuity.

The real estate of this country amounts to some ten thousand millions of dollars. Mortgaged for only half its real value, it would furnish banking capital to the amount of five thousand millions of dollars.

The rail-roads that we now have, and those that we shall have, [11] taken at only half their value, would furnish several hundred millions more of good banking capital.

There will probably also be two thousand millions, or more, of United States Stocks, which, if they should stand permanently at par, or thereabouts, will make good banking capital.

There is, therefore, no more occasion for a scarcity of currency, than for a scarcity of air.

And this currency would all be solvent, stable, and furnished at the lowest rate of interest at which the business of banking could be done.

Under such a system there could never be another crisis; the prices of property would be stable; the rate of interest would always be moderate; industry would be uninterrupted, and much more diversified than it ever hitherto has been; and prosperity would necessarily be universal.

No evils could result from the great amount of currency furnished by this system; for no more would remain in circulation than would be wanted for use. By returning it to the bank for redemption, the holder would either get specie for it, or have it redeemed by the conditional transfer to him of a part of the capital, on which he would draw interest, until the capital so transferred to him, should either be itself redeemed with specie, or made an absolute property in his hands. Currency, therefore, returned for redemption, and not redeemed with specie, is really put on interest, by being redeemed by the conditional transfer of interest-bearing capital. Whenever, therefore, if ever, the prices of property should become so high as not to yield as good an income as money at interest (the interest being paid in specie), the holders of currency would return it to the banks for redemption, beyond the ability of the banks to pay specie. The banks would be compelled to redeem it by the conditional transfer of interest-bearing capital; and thus take it out of circulation.

In short, the currency represents a dollar at interest, instead of a dollar in specie; and whenever it will not buy, in the market, property that is worth as much as money at interest, [12] (the interest payable in specie,) it will be returned to the bank, and put on interest, (by being redeemed in interest-bearing capital,) and thus taken out of circulation. No more currency, therefore, would remain in circulation, than would be wanted for use, the prices of property being measured by the value of an interest-bearing dollar, instead of a specie dollar, if there should be a difference between the two.

Such is, perhaps, as good a view of the general principles of the system, as can be given in the space that can be spared for that purpose. For a more full description, reference must be had to the pamphlet containing the system itself, with the Articles of Association, that will be needed by the banking companies. In the Articles of Association, the system is more fully developed, and the practical details more fully given, than they can be in any general description of the system.*

The recent experience of this country, under a currency redeemable only by being received for taxes, and made convertible at pleasure into interest-bearing bonds (U. S.), is sufficient to demonstrate practically—what is so nearly self-evident in theory as scarcely to need any practical demonstration—that under a system like the author’s, where the currency (when not redeemed in specie on demand) is convertible at pleasure into solvent interest-bearing stocks, there could never be a redundant currency in actual circulation, nor any undue inflation in the prices of property. That experience proves that currency issued, and not needed for actual commerce, at legitimate prices, will be converted into the interest-bearing stocks which it represents, and thus taken out of circulation, rather than used to inflate prices beyond their legitimate standard.†

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This experience of the United States, with a currency convertible into interest-bearing bonds, ought, therefore, to extinguish forever all the hard money theories as to the indefinite inflation of prices by any possible amount of solvent paper currency. It ought also to extinguish forever all pretence that a paper currency should always be redeemable in specie on demand; a pretence that is merely a branch of the hard money theory. This experience ought to be taken as proving that other values than those existing in gold and silver coins—values, for example, existing in lands, rail-roads, and public stocks—can be represented by a paper currency, that shall be adequate to all the ordinary necessities of domestic commerce; and consequently that we can have, at all times, as much paper currency as our domestic industry and commerce can possibly call for; and that the frequent revulsions we have hitherto had—owing to our dependence upon a currency legally payable in specie on demand, and therefore liable to contraction whenever specie leaves the country—are wholly unnecessary. This experience ought, therefore, to serve as a practical condemnation of all restraints upon the most unlimited paper currency, provided only that such currency be solvent, and actually redeemable, at the pleasure of the holder, in the property which it purports to represent.

Substantially the same things are proved by the experience of England. The immense amount of surplus money in that country is not used to inflate prices at home; but seeks investment abroad. It is sent all over the world, either in loans to [14] governments, or as investments in private enterprises, rather than used to inflate prices at home beyond their true standard.

The experiences of the two countries, therefore, demonstrate that there is no such thing possible as an undue inflation of prices, by a solvent paper currency — that is, a currency always redeemable in the specific property it purports to represent. And such a currency is that which would be furnished by the author’s system; for the property represented by it is always deliverable, dollar for dollar, in redemption of the currency itself.

[15]

CHAPTER II.: THE AUTHOR’S SYSTEM CANNOT BE PROHIBITED BY THE STATES.

The author holds his system by a copyright on the Articles of Association, that will be needed by the banking companies. His system, therefore, stands on the same principle with patents and copyrights. And the use of it can no more be prohibited by the State governments, than can the use of a patented machine, or the publication of a copyrighted book.

The Constitution of the United States expressly gives to Congress “power to promote the progress of science and useful arts, by securing, for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries.” And the laws passed by Congress, in pursuance of this power, are “the supreme law of the land, * * * any thing in the laws of any State to the contrary notwithstanding.”

If the State governments could prohibit the use of an invention, or the publication of a book, which the United States patent or copyright laws have secured to an inventor or author, the whole “power of Congress to promote the progress of science and useful arts,” by patent and copyright laws, could be defeated by the States.

Some persons may imagine that, whatever may be the right secured to inventors, by patents, the right secured to authors, by copyrights, is only a right to publish their ideas; leaving the State governments still free to prohibit the practical use of the ideas themselves. But this is a mistake. Of what avail would be the publication of ideas, if they could not be used? How utterly ridiculous and futile would be the idea of securing to the people a mere knowledge of “science and useful arts,” with no [16] right, on their part, to apply them to the purposes of life. How could Congress “promote the progress of science and useful arts,” if the people were forbidden to practise them? The right secured, therefore, is not a mere right of publication, but also a right of use.

The objects of patents and copyrights are identical, viz.: to secure to inventors and authors, and through them to the people — against all adverse legislation by the States — the practical enjoyment and use of the ideas patented and copyrighted.

Copyrights, it must be observed, are not granted, as some may suppose, for mere words — for the words of all books were the common property of mankind before the books were copyrighted; and they remain common property afterwards. The copyright, therefore, is for the ideas, and only for the ideas, which the words are used to convey, or describe.

In copyrights, therefore, equally as in patents, the right secured is the right to ideas; that is, to those ideas that are original with the authors of the books copyrighted. And the right thus secured to ideas, is the right, on the part of the author, not only to reduce those ideas to practical use himself, but also to sell them to others for practical use.

If the right, secured to authors by copyrights, were simply a right to publish their ideas, but not to use them, nor sell them to others to be used, the most important knowledge, conveyed by books, might remain practically forbidden treasures, if the State governments should choose to forbid their use.

These conclusions are natural and obvious enough; but as the point is one of great importance, it may be excusable to enforce it still further.

The ground here taken, then, is, that a State government has no more constitutional power to prohibit the practical use of any knowledge conveyed by a copyrighted book, than it has to prohibit the publication or sale of the book itself.

The sole object of the copyright laws are to encourage the production of ideas for the enjoyment and use of the people; to [17] secure to the people the right to enjoy and use those ideas; and to secure to authors compensation for their ideas. All these objects would be defeated, if the States could interfere to prevent the use of the ideas thus produced; because if the ideas could not be used, there would be no sale for the books; and consequently authors would get no pay for writing them; and would have no sufficient motive to write or print them.

It is an axiom in law, that where the means are secured, the end is secured; that the means are secured solely for the sake of the end. It would be as great an absurdity in law, as in business, to secure the means, and not the end; to plant the seed, and abandon the crop; to incur the expense, and neglect the profits. What an absurdity, for example, would it be for the law to secure a man in the possession of his farm, but not in his right to cultivate it, and enjoy the fruits. What an absurdity would it be for the law to secure men in the possession of steam engines, but not in the right to use them. But these would be no greater absurdities than it would be for the law to secure to the people a knowledge of “science and useful arts,” but not the right to use them.

The sole object of the law in securing to all men the possession of their property of all kinds, is simply that they may use it, and have the benefit of it. And the sole object of the laws, that secure to the people knowledge — which is but a species of property, and a most valuable kind of property — is that they may use it, and promote their happiness and welfare by using it.

An illustration of the principle, that where the means are secured, the end is secured, is seen in the constitutional provision that “the right of the people to keep and bear arms shall not be infringed.” This provision does not secure to the people a mere naked “right to keep and bear arms” — for that right would be of no practical value to them. But it secures the right also to use them in any and every way that is naturally and intrinsically just and lawful; for that is the only end the people can have in view in “keeping and bearing arms.”

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On the same principle, too, if the Constitution had declared that “the right of the people to buy and keep food should not be infringed,” it would thus have guaranteed to them, not merely “the right to buy and keep food,” but also the right to eat the food thus bought and kept; because the eating would be the only end that could be had in view in buying and keeping food.

Another illustration of the same principle is found in the constitutional provision that “Congress shall have power to coin money, and fix the standard of weights and measures.” Have the States any power to forbid the people to buy and sell the money coined by the United States? Or to forbid the people to use the standard weights and measures fixed by the United States? Certainly not. Although the Constitution does not say it in express words, it does say, by necessary implication, that the money, coined by the United States, may be freely bought and sold by the people (because that is one of the ends for which the money is coined); and that the standard weights and measures, fixed by the United States, may be freely used by the people (for that is one of the ends for which the standard of weights and measures was fixed); and that the States can neither forbid the use of the weights and measures, nor the buying or selling of the coin.

The sole object of books is to convey knowledge. If the knowledge cannot be used, of what use are the books themselves?

If a State government can prohibit the use of the knowledge conveyed in a copyrighted book, it might just as well prohibit the buying or reading of the book. The object of the book would be no more defeated in one case than in the other.

This power of “promoting the progress of science and useful arts,” by means of patent and copyright laws, was given to Congress principally, if not solely, because it was feared that the State governments might, in some cases, be unfavorable to that end. But if the States can now prohibit the use of the knowledge conveyed by books, they have that very power of obstructing [19] “the progress of science and useful arts,” which the Constitution intended to take from them.

Furthermore, it is the theory of the courts that the nation purchases the ideas of authors and inventors; that it purchases them solely for the use of the people; and that it pays authors and inventors for their ideas, by giving them certain exclusive rights over them for a term of years.* By this theory, the ideas themselves are supposed to become the property of the nation, from the times when the patents or copyrights are granted; or from the times when the ideas are put upon the government records, in the patent office, or elsewhere. Now, suppose the United States government had been authorized, by the Constitution, to purchase the same ideas, and pay the money for them, instead of paying for them by giving the authors and inventors certain monoplies in the use of them. Could a State, in that case, have prohibited the practical use of the ideas, which the government had thus bought, and paid the nation’s money for, solely for the use of the people? Clearly not. Suppose the United States government had been authorized (by the Constitution) to buy, and pay the money for, Morse’s invention of the telegraph, for the use of the people. Could a State have prohibited [20] the use of the invention, which the nation had thus bought for the use of the people, and paid the people’s money for? Certainly not.

Suppose the United States government (being authorized by the Constitution), had bought books on agriculture, for the use of the people, and paid the nation’s money for them—(instead of paying for them by copyrights, as it does now)—books on the chemical nature and treatment of soils, books on the various plants which the people wish to cultivate, and the various animals which the people wish to rear. Could a State have forbidden the people to read those books? Or to practically apply the knowledge conveyed by them? Clearly not. The idea would be preposterous. The principle that the United States Constitution, in securing to the people those means of agricultural progress, had, by necessary implication, secured to them the right to use those means against all interference by the States, would have been a complete answer to any such pretence on the part of the States.

We might as well say that a State has a right to forbid the people to use the post office, which the United States government has provided for their benefit, as to say that a State has a right to forbid the people to use any “science or useful art,” which the United States government has bought for their benefit.

Any other principle than this would authorize the States to prohibit the practical use of all ideas patented and copyrighted by the United States; and thus utterly defeat the power given to Congress “to promote the progress of science and useful arts,” by means of patents and copyright laws.

It is to be borne in mind that the people of a single State are not the only ones interested in the practical use of patented and copyrighted ideas within that State.

If, for example, the cotton growing States were to prohibit the use of Whitney’s patented cotton gin within those States, the people of all the other States, that manufacture or wear cotton goods, would be made the poorer by the act. If Louisiana were [21] to prohibit the use of Fulton’s patented steamboat within her limits, a great blow would be struck at the commerce and industry of the whole Mississippi valley. If Ohio, Indiana, Illinois, Iowa, and Wisconsin, were to prohibit the use of McCormick’s patented reaper within those States, the price of grain would be affected throughout the whole country. If Massachusetts were to prohibit the use of patented sewing machines, the prices of boots, shoes, and all other clothing, manufactured within the State, for the people of other States, would be enhanced. If New York were to prohibit the use of Hoe’s patented printing press within that State, all the commercial intelligence that radiates from the city of New York, would be delayed, and made more expensive; and the commerce of the whole country would be injured. For these reasons no State can be permitted to prohibit, within her limits, the use of any of the “sciences and useful arts,” which may be patented or copyrighted by the United States.

The same reasons apply to currency. If New York, for example, were to prohibit all but a metallic currency within her limits, the commerce of the whole country, so far as it is carried on within the city or State of New York, would be disturbed, obstructed, and injured. The industry of the whole country would be discouraged to a corresponding degree; and the whole country would be made the poorer. On the other hand, if the best systems of credit and currency, that can be invented, are allowed free course in the city and State of New York, that city and State can do very much, by the use of such credit and currency, to facilitate the commerce, and consequently to develop the industry, of every State in the Union. Even, therefore, if it were admitted that the State of New York might deprive her own citizens of useful inventions in currency and credit, it cannot be permitted to her to dictate in regard to the currency and credit used in the commerce of the whole country within her limits. She is not an independent nation in regard to commerce; and consequently not in regard to credit or currency.

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The principle of the United States Constitution, in regard to ideas patented and copyrighted, or in regard to “the progress of science and useful arts,” is, that authors, inventors, and people, shall have the free right to experiment with, and practically test, all ideas for themselves, without asking permission of the several State legislatures. It presumes that they (authors, inventors, and people) are competent to determine, after experiment, what inventions are practically valuable to them, and what worthless.

How preposterous would be the principle—as a political or economical one—that all the ideas, which authors and inventors may originate, in “science and useful arts,” must be submitted to, and approved by, the several State legislatures, (who are utterly incompetent to judge of either their truth or utility,) before the authors and inventors can be permitted to demonstrate their truth or utility to the people, or the people be permitted to adopt them. Such a principle would be manifestly absurd, ridiculous, destructive of men’s natural rights, and destructive of all “progress in science and useful arts.” It would be a tyranny that no people on earth could endure. On such a principle, not even an almanac could be published, or a new rat trap used, within any State, until the legislature of the State should have solemnly sat upon it, and given it the sanction of their profound wisdom, or profound ignorance. If any thing of this nature were to be tolerated in this country, it would plainly be most proper and expedient that Congress, as the legislature for the whole country, should take the matter in hand, and decide, for the whole country, upon the truth and utility of all new ideas offered for public adoption; instead of referring them to the several State legislatures. But Congress knows that they are utterly incompetent to any such task; and, therefore, they leave the whole matter—as the Constitution intended they should—to be determined by the authors, inventors, and people interested. And if this is the principle of the Constitution in regard to all other ideas in “science and useful arts,” it is equally the principle of the Constitution in regard to currency (other than legal [23] tender) and credit; for the Constitution makes no discrimination between inventions and ideas on these latter subjects, and those in relation to other matters (as we shall more fully see in subsequent chapters). The Constitution knows but one law for all new ideas in “science and useful arts.” And that law is that authors and inventors may come freely face to face with the people, and test all ideas to their mutual satisfaction; leaving the people free to adopt or reject at their own discretion.

If there be any one of the “useful arts,” to which the foregoing principles ought to be applied, banking is preëminently that one. (By banking is here meant the art of representing by paper—for loans and currency—other values than those existing in coin.) Banking is the art of arts. It is the art upon which nearly all other arts depend mainly for their efficiency; as experience has demonstrated continually for the last hundred years. Directly or indirectly it furnishes both the tools and materials for nearly every trade. Directly or indirectly it creates the demand for, and furnishes the supply of, every marketable commodity. For the want of such adequate credit and currency as banking is capable of supplying, all other arts, especially the mechanic arts, are at all times greatly crippled, and at frequent intervals paralyzed; the natural and normal demand for manufactured commodities suspended, and their prices struck down; the rich made poor, and the poor driven into idleness and destitution. The industry of almost any people—even of those among whom the mechanic arts have already made the greatest progress—would probably be doubled in value by such a diversity of production, such an increase of machinery, such uninterrupted activity, and such stability in prices, as an adequate system of banking would introduce. And the wealth thus produced would be far more equally and equitably distributed than wealth is now.

The imperfection or inadequacy of all former systems of banking is a thing on all hands confessed. There is no art, in which there is greater need of invention. Consequently there is none, in which invention is better entitled to all the protection which [24] the constitutional power of Congress “to promote the progress of science and useful arts” can give.

For the reasons that have now been given, the right to use practically the author’s system of banking, is absolutely secured to him and his assigns, by the United States copyright; and, as has already been said, can no more be prohibited by the State governments, than can the use of a patented machine, or the publication of a copyrighted book.

By what has been said, it is not meant that the patent or copyright laws of Congress are designed, or can be used, to shield a person in the commission of any acts that are fraudulent, or intrinsically criminal; but only that they are a protection for the free use of all ideas, that are patented and copyrighted by the United States, and that are, naturally and intrinsically, innocent and lawful.

That the author’s system of banking is, naturally and intrinsically, innocent and lawful—as clearly so as any other system of banking that was ever invented—no one will dispute. The honest use of the system, therefore, cannot be prohibited by the States. But any frauds or crimes, committed under color of using the system, may be punished like any other frauds or crimes.

The same principles, of course, apply to any and every other system of banking, which is, naturally and intrinsically, innocent and lawful, and which men may invent, and choose to experiment with, and put in practice. Men have the same natural and constitutional rights to invent, experiment with, and get patented or copyrighted, and put in practice, new systems of banking, as they have to invent, experiment with, get patented, and put in operation, new churns and washing machines. And the only restraints, that can constitutionally be imposed upon them, by the State governments, are, that the natural “obligation of their contracts” must be enforced, and they must commit no frauds nor crimes.*

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CHAPTER III.: THE AUTHOR’S SYSTEM CANNOT BE TAXED, EITHER BY THE UNITED STATES, OR THE STATES.

Neither the United States, nor the States, can tax the author’s system of banking, consistently with the theory which the courts hold in regard to patents and copyrights.

That theory is, that a patent or copyright, guaranteeing to an inventor or author, and his heirs and assigns, the free and exclusive right to use his invention, or publish his book, for a term of years, is the price which the United States government, as agent for the whole people, pays an inventor or author for his invention or book, for the benefit of the public.*

The courts hold that the reasons for granting patents and copyrights are these, namely, that an inventor has in his mind an invention, or an author has in his mind a book, which, it is supposed, may be of value to the public; but that neither the inventor nor the author has any sufficient inducement to make his [28] invention or book known, unless he can derive some pecuniary advantage from it. The United States, therefore, says to the inventor: If you will secure your invention to the use of the public, by putting upon the government records such a description of it, and of the manner of using it, as that the public will be able, from your description, to make and use your machine, in defiance of you, (after your patent shall have expired,) the government will, as a compensation for your so doing, secure to you, and your heirs and assigns, the free and exclusive use of the invention for a given number of years. When, therefore, the inventor has put upon the government records such a description of his invention, and of the manner of using it, as the government stipulates for, the bargain is complete, and the faith of the government is pledged, that he shall have the free and exclusive use of his invention for the term of years agreed on.

The United States says also to the author: If you will secure to the public the right to your book, by depositing a copy with the government, so that it may be republished in defiance of you, (after your copyright term shall have expired,) the government will secure to you, and your heirs and assigns, the free and exclusive right to publish and sell it for a term of years. When, therefore, the author has deposited with the government a copy of his book, in pursuance of this stipulation on the part of the United States, the contract is complete, and the faith of the government is pledged, that he shall have the free and exclusive right to publish his book for the term of years agreed on.

The amount of these transactions—according to the theory of the courts—is, that the government buys an author’s or inventor’s ideas, and contracts to give him, as compensation for them, a certain exclusive use of them for a term of years.

The courts hold that the general government, on behalf of the whole country, makes this contract with authors and inventors; being specially authorized to do so by the Constitution of the United States.

On this theory, the government cannot consistently tax, either [29] the ideas themselves, or the use of them. It cannot consistently tax the ideas themselves, as property, for they are supposed to be the property of the United States; and for the government to tax them, as property, would be taxing its own property; and would be as absurd as it would be to tax the National Capitol, or any other property of the government. It cannot consistently tax the author or inventor for his exclusive use of the ideas; for that exclusive use is the price which the government agrees to pay him for his ideas; and is, therefore, a debt, which it owes him. It, therefore, can no more consistently tax him for receiving this pay for his ideas, than it can tax any body else for receiving his pay for services rendered, or property sold, or money lent, to the government.

This price, be it observed, which the United States government agrees to pay, is not paid in full, until the patent or copyright term has expired; because the price itself consists in the exclusive use, or in the government protection to the exclusive use, of the invention or book, for that term. If, now, the government can tax this price, before it is fully paid, it really taxes a debt which it owes. And for the government to tax a debt, which it owes, is really keeping back a part of the debt.

In other words, if, before the inventor or author shall have had the free and exclusive use of his invention or book secured to him for the full term stipulated for, the general government can tax this free and exclusive use, which, for a valuable consideration paid to the United States, by the author or inventor, has been guaranteed to him, it can wholly or partially invalidate the contract made with him. Such a tax is virtually withholding, or keeping back, or taking back, a part of the price, which the United States, on behalf of the whole country, had agreed to pay him. If the use of the invention or book can be taxed to the amount of one per cent., ten per cent., fifty per cent., or one hundred per cent., of its value, by the very government that promised to secure the use to him, then one per cent., ten per cent., fifty per cent., or one hundred per cent., of the price, [30] agreed to be paid to him, is taken back, or virtually withheld from him, by the very party that promised to pay it to him.

Such a tax, according to the theory of the courts, would be a tax upon a debt, which the United States owes the author or inventor. And a right, on the part of the United States, to impose such a tax, would be as absurd, and as inconsistent with the obligation of a debt, as would be the right of any other debtor, to tax his creditor for the debt due by the former to the latter. If all debtors could tax their creditors at pleasure for the debts due by the former to the latter, the payment of debts would be a very easy matter. And if the United States can tax, at pleasure, all the debts they owe, the public debt may legally, and consistently with the public faith, be very easily paid.

When the United States government voluntarily becomes a debtor, by purchasing something valuable, and agreeing to pay for it at a future time, it voluntarily puts itself in the position of any and all other debtors. That is, it agrees to pay the amount in full; and not merely to pay all except what it may choose to withhold, or take back, under the name of taxation. A promise of this latter kind would amount to no promise at all.

Suppose the United States government (as agent for the whole country) were to purchase, of an individual, supplies for the United States army; and were to give him a contract to pay him in six months. And suppose that, before paying this debt, the government should tax it, to the amount of one hundred per cent., in the hands of this creditor of the United States. How much would this creditor have coming to him when the contract should be due? Or how much would he realize for the supplies he had furnished, and taken the government’s contract for? Nothing. Yet a tax of one per cent. would be just as absurd in principle, and just as inconsistent with the obligation of a debt, as would be a tax of one hundred per cent. Such taxation would clearly be withholding a part of the debt, which the government owed him, and had agreed to pay him, for value received. The government might just as well have seized the supplies, without pretending to [31] make any compensation at all, as to pretend to buy them, promise to pay for them, and then tax that debt or promise before it is fulfilled. It is for this reason, that the general government cannot, without a breach of faith, tax any portion of the debt it is now contracting. Such a tax would really be a mode of withholding payment of money it had agreed to pay. And for the same reason the general government cannot, consistently with the theory of the courts in regard to patents and copyrights, tax them, or the use of them. Such taxation, according to the theory of the courts, would be withholding a part of the price, which the general government, on behalf of the whole country, had agreed to pay for books and inventions.

And what the general government cannot, consistently with the public faith, do, in the way of taxing patents and copyrights, the States, counties, cities, and towns cannot consistently do; because any contract, made by the general government, is made for and on behalf of the whole country; and States, counties, cities, and towns are as much bound by it, as is the general government itself.

If States, counties, cities, and towns could tax patents and copyrights, they could wholly or partially, (according to the extent of the tax,) defeat the value of the contracts, which the United States, on behalf of the whole country, makes with authors and inventors.

The subscriber is not aware that inventions and copyrights, or the use of inventions or copyrights, have ever been taxed, either in this country, or in any other, until the recent tax upon telegraphic messages. And this tax, according to the theory of the courts, ought clearly to be held illegal, or at least inconsistent with the public faith.

The country has too great an interest in “the progress of science and useful arts,” to tolerate Congress, or the State governments, in breaking faith with authors and inventors, by robbing them, either directly or indirectly, of the free and exclusive right to “their writings and discoveries” for the term of years [32] that was stipulated for, when, relying upon the public faith, they sold their ideas to the government, (as they virtually did when they put their books and inventions beyond their own control, by putting them upon the government records.)*

For the reasons now given, the subscriber assumes that the use of his system of banking will never be taxed, either by the United States, or the States.

This freedom from taxation is perfectly just, for still another reason, namely, that the land, which constitutes the banking capital under the author’s system, is liable to be taxed, as land, at its true value, equally with all other land. The fact that it is used as banking capital, is no reason for taxing it beyond its true value, when all other land is equally free to be used as banking capital, if the owners shall so choose.

This exemption from taxation is likely to be an important matter for many years, if not forever; and is sufficient, of itself, to challenge the consideration of bankers.

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CHAPTER IV.: THE STATE GOVERNMENTS CANNOT CONTROL, OR IN ANY MANNER INTERFERE WITH, THE AUTHOR’S SYSTEM.

The same reasons that have been already given against the right of the State governments to prohibit, or tax, the use of the author’s system of banking, are equally weighty against all power, on the part of the States, to assume to control, or in any manner interfere with, the operation of the banks, either by restricting the rates of interest or exchange, or subjecting the banks to the oversight of Commissioners, or requiring them to keep on hand given amounts of specie, or to publish statements, or make returns, of their condition or proceedings.

A State, for example, would have no more power to fix the rates of interest or exchange, taken by these banks, than to fix the price paid for the use of a patented machine, or for the publication of a copyrighted book. Nor would it have any more power to subject the banks to the oversight of Commissioners appointed by the State, than it would to subject the use of all patented machines, and the publication of all copyrighted books, to the supervision of Commissioners appointed by the State. It would have no more right to require the banks to make returns, or publish statements, of their condition and proceedings, than it would to require the same things of all persons using patented machines, or publishing copyrighted books.

If the State governments can, in any way, obstruct or embarrass authors and inventors in the use of their copyrights and inventions, they can impair or destroy the value of the copyrights or patents granted by the United States; and so far defeat the Constitution of the United States, and the powers of Congress on this subject.

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The Supreme Court of the United States has explicitly indorsed these principles, by declaring that the use of “patent rights” can neither be taxed, retarded, impeded, burdened, nor in any manner controlled, by the State governments. And the same principle obviously applies to copyrights, because these are intrinsically of the same nature with patent rights, and because also the rights of authors and inventors are placed upon the same grounds by the Constitution.

This declaration of the Supreme Court was made in the case of McCulloch vs. Maryland, 4 Wheaton’s Reports. It was made incidently, but nevertheless explicitly, and as illustrating a principle which the court declared to be vital to the existence and operation of the general government.

The immediate question, before the court, was, whether the State of Maryland had a right to tax the Maryland branch of the United States Bank?

The court first determined that the United States had a constitutional right to create a bank to be employed as an agent of the United States in keeping and disbursing the public monies.

The court next declared “that the power to tax involves the power to destroy;” and that to allow the States to tax, or exercise any authority whatever over, any of the agencies employed by the United States in executing its constitutional powers, was incompatible with the supremacy of the United States, and was equivalent to subjecting the United States government to absolute destruction, whenever the State governments should please to destroy it.

And in this connexion, the court spoke of the United States mails, of the mint, of patent rights, of the papers of the Custom House, and of judicial process of the United States, as illustrations of the various means used by the United States, and which could not be taxed, nor in any manner interfered with, by the States.

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Thus the court say,

“If we apply the principle for which the State of Maryland contends [that the States may tax the means employed by the general government for executing its powers] to the Constitution generally, we shall find it capable of changing totally the character of that instrument. We shall find it capable of arresting all the measures of the government, and prostrating it at the foot of the States. The American people have declared their Constitution, and the laws made in pursuance thereof to be supreme; but this principle would transfer the supremacy, in fact, to the States.

“If the States may tax one instrument, employed by the government in the execution of its powers, they may tax any and every other instrument. They may tax the mail; they may tax the mint; they may tax patent rights; they may tax the papers of the Custom House; they may tax judicial process; they may tax all the means employed by the government, to an excess which would defeat all the ends of government. This was not intended by the American people. They did not design to make their government dependent on the States.” Page 432.

Also the court say,

“The court has bestowed on this subject its most deliberate consideration. The result is a conviction that the States have no power, by taxation, or otherwise, to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by Congress to carry into execution the powers vested in the general government. This is, we think, the unavoidable consequence of that supremacy which the Constitution has established.” Page 436.

This was an unanimous opinion of the court—expressly declared by them to be such. And, as we have already seen, they expressly applied the principle to “patent rights.” And if the principle is applicable to patent rights, it is equally applicable to copyrights; because they are both of the same nature, and stand on the same grounds in the Constitution.*

We have, then, in effect, an explicit declaration of the Supreme [36] Court of the United States, “that the States have no power, by taxation, or otherwise, to retard, impede, burden, or in any manner control,” the use of patents and copyrights, granted by the United States.

If the bankers should commit any frauds, or any acts that were intrinsically criminal, they could be punished, as for any other frauds or crimes; because patents and copyrights do not authorize the commission of crimes. Or if they should not fulfil their contracts, they could be compelled to fulfil them. But so long as they should fulfil their contracts, and be charged with no acts intrinsically criminal, a State government could no more interfere with them as banks, than it could interfere with anybody else for using a patented machine, or publishing a copyrighted book. And thus the business of banking (including the rates of interest and exchange) would be entirely relieved from all that arbitrary and tyrannical State legislation, which has hitherto been so annoying, vexatious, and injurious both to bankers and to the public.

If there is any business whatever, that ought to be free from all arbitrary restraints and interference, it is banking; for the reason that, in this country, the credit and currency furnished by the banks, are the direct mainsprings of nearly all our industry and commerce. All arbitrary restrictions upon banking, are, therefore, nothing else than arbitrary restrictions upon industry and commerce; and are as absurd, injurious, and tyrannical as would be arbitrary restrictions upon the use of steam engines, water wheels, locomotives, or any other machinery or instrumentalities by which our industry and commerce are carried on.

If banking is an intrinsically criminal business, it should be prohibited altogether. If it is an innocent and useful one, it should be free from all arbitrary restrictions and interference, like any other honest business. Free competition, and freedom from all arbitrary interference, in banking, will furnish the best currency and credit, and at the cheapest rates, just as free competition, and freedom from all arbitrary interference, in all other business, furnish the best commodities, and at the lowest prices.

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CHAPTER V.: UNCONSTITUTIONALITY OF THE LEGAL TENDER ACTS OF CONGRESS.

The general government is attempting, by its legal tender acts, and its bank act, to force into circulation its own currency, and the currency of banks authorized by itself; and to force out of circulation all other currency; or to bring it down to a level with its own. This makes it necessary to consider the constitutionality of the legal tender acts of Congress.

Those, who imagine that the legal tender acts of Congress are constitutional, seem to imagine that Congress have power to fix, and do fix, the legal tender in payment of debts in all cases whatsoever; that they have power not only to prescribe what shall be the legal tender in payment of all debts, but also to say how much of any thing whatever (which they may choose to call a legal tender) shall be sufficient to satisfy any debt whatsoever; that, in short, Congress have power to declare arbitrarily what, and how much, all contracts, between man and man, shall amount to; and at their pleasure or discretion, to make them more, less, or other than the parties have made them.

Thus they hold, in effect, that men have no power, of themselves, to make obligatory contracts; and that men’s contracts with each other have, of themselves, no validity at all, which the laws are bound to recognize and maintain; but that it rests with Congress, in their discretion, or at their will, to alter men’s contracts, and make them valid for more, less, or other than the parties have agreed on.

All these enormous conclusions legitimately and necessarily [38] follow from the idea that the late legal tender acts of Congress are constitutional.

But, in truth, Congress have no powers whatever of this kind. Parties make their own contracts; and Congress have no power whatever to make them more, less, or other than the parties have made them. Congress have no power to say how much of any thing—gold and silver coin, or any thing else—shall be sufficient to satisfy any contract whatever between man and man.*

Parties make their own contracts. Of course they, and they alone, fix the tender. That is, they agree what, and how much, is to be paid. Otherwise there would, in law, be no contract. A contract to pay no particular thing, and no particular quantity of any thing, would, in law, be no contract at all. To make a contract, then, is necessarily to fix the tender. Parties cannot make valid binding contracts otherwise than by themselves fixing the legal tender, both in kind and amount.†

What the debtor agrees to pay, and the creditor to receive, is the legal tender, and the only legal tender, both in kind and amount, in payment of that debt. And Congress have no authority [39] in the matter, to alter the legal tender, or make the contract more, less, or other than the parties themselves have made it. If it were not so, men would be deprived of all power of making their own contracts.

Thus, where a contract is to pay one hundred bushels of wheat, one hundred bushels of wheat constitute the legal tender, and the only legal tender, in fulfilment of that contract, or in payment of that debt; and Congress have no power to alter it. Congress have nothing to do with the matter.

So, too, if one man contracts to convey his farm to another, that farm is the legal tender, and the only legal tender, in fulfilment of that contract.

So, if one man contracts to give his horse to another, for value received, that horse is the legal tender, and the only legal tender, in fulfilment of that contract; and Congress have nothing to do with the matter.

On the same principle, when one man has contracted to pay another a hundred dollars, a hundred dollars constitute the legal tender, and the only legal tender, there can be in the case. Not because Congress have made the dollars a legal tender: but because the parties themselves made the dollars the tender in that particular case; just as, in the cases before supposed, the parties made the wheat, the farm, and the horse, the legal tender in those cases respectively.

If Congress can fix the tender, in payment of a debt, independently of the agreement of the parties, they can make at least a part of a contract between the parties, without their consent. But Congress have no more power to make any part of a contract between two parties, without their consent, than they have to make a whole one.

Congress have no power whatever in regard to legal tender, beyond what can be found in these words of the Constitution, to wit: “The Congress shall have power to coin money, and regulate the value thereof, and of foreign coin.”

This is the only power given to Congress on the subject. And [40] here is no power given, in express terms, to make the coin mentioned, either domestic or foreign, “a legal tender in payment of debts.” It is only by carefully analyzing all the terms of the provision, that, even by inference or implication, such an authority can be extracted from it. Let us see.

What is it “to coin money?” It is simply to weigh and assay pieces of gold, silver, or other metals, and stamp them in a manner to certify their quantity and quality—that is, their weight and fineness. This is the whole of it. And, so far as this simple act of coining goes, there is nothing that makes the coins a legal tender; or that gives Congress any authority to make them a legal tender.

After the pieces have been coined, they are sold by Congress in the market, and are afterwards sold by individuals in the market, for just what they may chance to bring, like any other merchandise; Congress having no control over their market value.

If a debtor agrees to pay, and a creditor to receive, these pieces of coin, the coins are thereby made the legal tender in payment of that particular debt. They thereby become necessarily the legal tender; not because Congress have so prescribed, but because the parties have so agreed. The parties, and not Congress, make them the legal tender.

Parties are under no legal obligation to make their contracts payable in coin—that is, in dollars. They are at perfect liberty to make them payable in wheat, corn, hay, iron, wool, cotton, pork, beef, or any thing else they choose. And when they do so make them, these other commodities become the tender; just as dollars become the tender when dollars are promised.

The whole object of coining money, therefore—so far as a legal tender is concerned—is, not to enforce any particular tender upon the parties to contracts, but that there may be in the community certain commodities, suitable for a legal tender—that is, whose quantities and qualities may be precisely known—in order to facilitate the making and fulfilling of contracts by the parties, and the enforcing of them by the courts, with [41] perfect certainty and precision. It is to furnish something, known to the law, and fixed by the law, and about which there may be no controversy between parties, and no doubt on the part of the courts, as to whether or not it is the identical thing—in kind, quantity, and quality—that was promised to be delivered.

When contracts are made to be fulfilled by the payment of wheat, wool, cotton, iron, &c., disputes are liable to arise between the parties as to whether the commodities tendered are of the precise quality with the ones promised. Hence litigation arises; and litigation too, which it is extremely difficult for courts to settle justly; because it is very difficult, and often impossible, for a court to know the precise quality of the commodities promised, as understood by the parties themselves at the times of their contracts.

It is desirable, therefore, that there should be something, known to the law, and which may be promised to be delivered, and about the quality of which there can be no dispute. Such a commodity serves both to prevent controversy and litigation, and to enable courts to settle them justly and truly when they do arise.

So far, then, as a legal tender is concerned, the whole object of the Constitution, in giving Congress “power to coin money,” is, not at all to take away from parties their natural power and right to make such contracts as they please, or to impair their contracts when made, but to aid them in making precisely such contracts as they wish; and to insure the enforcement of the contracts, by the courts, precisely as the parties made them.

The object of the Constitution is to give the people additional facilities (beyond what nature has provided) for making their own contracts, and having them accurately enforced; and not at all to take from them any natural power or right to make such contracts as they please; or to give Congress any power to interfere with, control, invalidate, or impair the contracts made.

But, secondly, Congress have power not only “to coin money,” but also “to regulate the value thereof, and of foreign coin.”

What is it “to regulate the value thereof, and of foreign [42] coin?” Certainly it is not to fix the current value of the coins, relatively to other commodities. It is not, for example, to say how much wheat, wool, cotton, iron, hay, or any thing else, one dollar, or five dollars, in coin, shall buy.

For Congress to fix the value of the coins, relatively to other commodities, would be equivalent to their fixing the value of other commodities relatively to coin. But that, clearly, is a matter for parties to agree upon; and one with which Congress have nothing to do.

What, then, is this power of Congress “to regulate the value thereof, and of foreign coin?”

If the Constitution had said simply that Congress should have “power to coin money, and regulate the value thereof”—omitting the words “and of foreign coin”—the legal conclusion probably would have been, that Congress should only have power to coin money, and regulate the intrinsic value thereof—that is, fix, at their discretion, the quantity and quality of the metals of which the coins should be composed. But since Congress have “power to regulate the value of foreign coin”—the intrinsic value of which has already been fixed by the governments that coined them—we are, perhaps, under a necessity to infer that the power given to Congress “to coin money, and regulate the value thereof, and of foreign coin,” is a power to fix the legal value of all these different coins relatively with each other; that is, a power to say how many coins of one kind or denomination, shall be equal in value to a given number of another kind, or denomination.

But, if we accept this inference, we are also under a necessity to infer that it is only in the single case of a “tender in payment of debts,” that this legal value of the coins, as fixed by Congress, can be set up; for, in all other cases, it is clear that the parties to contracts are at perfect liberty to give and receive more or less for any one of the coins, than they would for any others of the same legal value.

It is, therefore, only by this inference, and this process of [43] reasoning, that we can come to the conclusion that Congress have any power at all to fix the value of their own coins, and of foreign coins, for the purposes of a “tender in payment of debts.”

And when we thus find that Congress may, perhaps, have a certain power relatively to “a legal tender in payment of debts,” we find that, at most, it is only a power to fix the value of the different coins, relatively to each other; and not relatively to other things. In other words, we find that it is a power simply to say, for example, that five dollars, in silver, shall be equal to one half eagle in gold; that an English pound sterling, shall be equal to four dollars eighty-five cents of United States coin; and that a French Napoleon shall be equal to three dollars eighty-five cents of United States coin. And that it is only in the single case of “a tender in payment of debts,” that even this legal value of the coins, relatively to each other, can be fixed by Congress. In all other cases, all the different coins may be legally bought and sold at just such values as the parties to contracts may choose to put upon them.

The most, therefore, that can be said, in favor of the power of Congress, is, that they have power to coin money, and regulate the value of the different pieces thereof, and of foreign coin, relatively to each other, for the single purpose of a tender in payment of debts; and that they have no other power over the subject.

This power of Congress, it is to be noticed, is not a power to make the coins a legal tender, (when the parties to contracts have not done so;) but only a power to fix the value of the different coins, relatively to each other, when the parties to contracts shall have made them a tender. In other words, it is only a power to say that, when the parties to contracts shall have agreed upon the amount of coin, or the number of dollars, to be paid, they shall be understood to have contracted for so much coin, or so many dollars, of any, or all, these different kinds, (at the option of the debtor,) and not for any one kind of coin, [44] or one kind of dollars, rather than another of the same legal value.*

This power of Congress leaves parties at full liberty to make their own contracts; and consequently to fix their own tender, (without fixing which there can be no contract.) It only enables Congress virtually to prescribe beforehand what particular words or terms—such as dollar, eagle, dime, cent, and so forth—when used by the parties to contracts, shall be understood to mean. Just as Congress, in fixing the standard of weights and measures, virtually prescribe beforehand what the terms bushel, yard, rod, foot, acre, pound, gallon, &c., when used by the parties to contracts, shall be understood to mean.

This power of Congress to prescribe what certain terms, such as dollar, bushel, and the like, when used in contracts shall be understood to mean, is a power that can be exercised only within [45] very narrow limits, to wit, the limits of prescribing that those terms shall be understood to mean either such coins and measures as Congress shall have previously established and designated by the same terms, or such coins and measures as Congress shall have previously designated as the equivalents of the coins and measures designated by those terms.

The object of giving to Congress these powers “to coin money, and regulate the value thereof, and of foreign coin, and fix the standard of weights and measures,” is not at all to give Congress any power to control parties in making their contracts; nor any power to alter or impair their contracts when made; but only to provide certain coins, weights, and measures, that shall be known alike to courts and people, in all the States, according to which contracts may be made, if the parties shall so choose; and according to which contracts may be fulfilled, when the parties shall have so agreed.

Congress have plainly no more right to alter the tender, when the parties have agreed on one, than they have to alter a measure, when the parties have agreed on one. Congress have no more power, for example, to say, when a man has promised to pay a hundred dollars, that he shall be required to pay but fifty, or that he may tender something else than dollars, (or other coin of equal legal value,) than they have to say that, when he has promised to deliver a hundred bushels of wheat, he shall be required to pay but fifty; or that he may tender oats, apples, or onions, instead of wheat.

In short, Congress have no power whatever over men’s contracts, except simply to say that when men shall have agreed to pay a certain number of coins, of a denomination or denominations which Congress shall have previously designated as being of the same legal value with certain other coins, this legal value of all the coins, relatively to each other, shall be recognized by the parties and the courts, and the contracts shall be fulfilled and enforced accordingly; and that when parties shall have agreed to pay a certain number of bushels, yards, or pounds, of any thing, [46] it shall be understood that the bushels, yards, and pounds agreed upon, are such bushels, yards, and pounds as Congress shall have previously designated.

This power of Congress to designate beforehand certain coins, weights, and measures, with reference to which contracts may be made, (if the parties so choose,) with the certainty of having them accurately and truly fulfilled, is totally different from a power to control, alter, or impair men’s contracts, by prescribing that more, less, or other than the parties have agreed on, shall be a legal tender in fulfillment of their contracts. The former power is a power in aid of men’s natural power and right to make their own contracts, and have them truly and accurately enforced. The latter power would be a power wholly destructive of all men’s natural rights to make their own contracts, or to have them enforced.

This attempt, on the part of Congress, to alter the tender, from what the parties to contracts have agreed on, and to require parties and courts to recognise any thing but “coin” as “a legal tender” in fulfilment of contracts for the payment of coin, is one of the most naked, impudent, and wicked usurpations that can be conceived. There is not a syllable in the Constitution that gives the slightest color of authority for any such enactment.

When a man has contracted, for value received, to deliver a plough, have Congress any constitutional power to enact that he may tender a gun, in fulfilment of that contract? Or if he has contracted to deliver a horse, have Congress power to enact that he may tender a bull? If a man has contracted to convey his farm, for value received, have Congress any power to enact that he may tender cats, dogs, snakes, and toads, in fulfilment of that contract? If a milliner has contracted to deliver a bonnet, have Congress power to enact that she may tender a wheelbarrow, or a handcart? If a jeweller has contracted to deliver a necklace, have Congress any power to enact that he may tender a coal hod? If a man has contracted, for value received, to deliver, to a lady, chairs, sofas, carpets, mirrors, and pictures, for her parlor, have [47] Congress power to enact that he may tender tar, turpentine, oil, and lampblack, instead of the things agreed on? If a handsome and spirited young man has promised marriage with a young and beautiful woman, have Congress power to enact that he may tender a decrepid old man in his stead? Just as much constitutional power have Congress to do any and all these absurd and ridiculous things, as they have to alter men’s contracts, or make any thing but “coin” a tender, where coin has been promised.

If Congress, under “the power to coin money, and regulate the value thereof, and of foreign coin,” have power to say that United States notes shall be a legal tender in payment of debts, they have evidently the same power to say that foreign notes—or the notes of foreign nations—shall also be a legal tender. If the word “coin,” as used in the Constitution, includes government notes, then certainly the words “foreign coin” include foreign government notes. So that, on the theory that Congress have power to make the United States notes a legal tender, it necessarily follows that they have equal power to make the notes of all other governments a legal tender.

Furthermore, the explicit provision of the Constitution, that “No State shall make any thing but gold and silver coin a tender in payment of debts,” is additional and conclusive evidence, if any more could be needed, that Congress have no power to make any thing but coin itself a tender.

But it is said that Congress have power to debase the coin, and thus impair the value of existing contracts; and that, if Congress can impair existing contracts by debasing the coin, they have equal power to impair them by making something else than coin a tender.

It is true that Congress have power to debase the coin; but it is utterly untrue that they have any power to affect the value of existing contracts by so doing. It might as well be said that they have power to reduce the bushel, gallon, and yard measures; and by so doing reduce the value of existing contracts for the delivery of grain, spirits, and cloths.

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It is an established principle in law, that the words of a contract are to be taken in the sense in which they are used at the time the contract is entered into; and that nothing subsequent can alter that meaning. Contracts for so many pieces of coin, are contracts for the things signified by those words at the time; and not for other and different things, that may be created afterwards, and made to bear the same names. In other words, contracts are for things, and not for mere names.

But the technical lawyer will, perhaps, inquire how can the original contract be enforced, or judgment be given for the coin contracted for, after the current coin of the country has been debased? The answer is, that in case of non-performance of contract, the principal has his option of two remedies, viz.: first, to bring suit for specific performance—that is, to compel the delivery of the identical thing promised, where its delivery is reasonably possible; and, second, where he does not desire the delivery of the identical thing promised, or where such delivery has become impossible, he can sue for the damage; the damage to be estimated and paid in the coin current at the time of the judgment.

Suppose, therefore, that from this day, the standard coin were to be debased to one half the value of the present standard; a creditor under a preexisting contract would have a right to demand payment of the original coin contracted for; and if payment were refused, he would have a right to sue for specific performance—that is, for the delivery of the particular coin contracted for. And it would be the duty of the court to enforce such delivery, if coin of the original standard were still in circulation so that its delivery was reasonably possible. But if the original coin had so far disappeared as to make its delivery practically impossible, then the creditor could sue for the damage; and it would be the duty of the jury, in estimating the damage, to take into account the relative value of the coin contracted for, and the debased coin, in which the damage was to be paid; and [49] to give judgment for such an amount of the latter as would be equal in intrinsic value to the former.

There would be as much reason in saying that Congress have power, by increasing the value of the standard coin, to increase the value of existing contracts for coin, as there is in saying that they have power, by debasing the coin, to diminish the value of existing contracts for coin.

In short, contracts for the delivery of coin, at a future time, are not simply contracts for such coins as may, at that future time, happen to bear the names mentioned in the contracts. But they are contracts for such amounts of real gold and silver as the terms employed signify at the times when the contracts are entered into.

We will now consider the argument closed, so far as it relates to the power of Congress to make government notes a legal tender, under their “power to coin money, and regulate the value thereof, and of foreign coin.”

But, inasmuch as some of the courts, that have acted upon the question, have pretended that the power to make the notes a legal tender is included in some of the other powers of Congress, such as the powers “to borrow money,” “to lay and collect taxes,” “to regulate commerce with foreign nations, and among the several States,” and to carry on war, it may be proper to devote a few words to these points.

To determine whether the power to make the notes a tender is included in any, or all, the powers just mentioned, we must keep in mind that, when it is said that one power of Congress is included in another, it is meant that the former is a part of the latter; that the former is included in the latter, just as a part of any thing is included in the whole; for example, just as a peck of grain is included in the bushel of grain, of which it is a part; and just as an ounce of silver is included in the pound of silver, [50] of which it is a part; and just as a rod of land is included in the acre of land, of which it is a part.

We must also keep constantly in mind—what has been already shown, in the former part of this chapter—that the whole idea of a tender arises out of the contract of the parties themselves; that what the debtor agrees to pay, and what the creditor agrees to receive, is the tender; and that, from the very nature of contracts themselves, (which are only the consent or agreements of the parties,) nothing else is the tender, or can be made so.

Congress have no more power to fix the tender, in any case, without the consent of the parties, than they have to make any or all other parts of a contract, without the consent of the parties. Unless, therefore, Congress have power to make contracts ad libitum, on behalf of individuals, and without their consent, they clearly have no power to make that part of their contracts, which fixes the tender, or the commodity in which their debts are to be paid.

The question, then, to be determined is equivalent to this, namely, whether the powers of Congress “to borrow money,” “to lay and collect taxes,” “to regulate commerce with foreign nations, and among the several States,” and to carry on war, include, as a part of themselves, a general and unlimited power of attorney, or a general and unlimited authority, to make any and all contracts, binding upon individuals, and binding their property, when the individuals themselves have made no contracts at all, and given no consent to those made in their name by Congress?

Unless Congress have such a general and unlimited power of attorney, or such a general and unlimited authority, to make entire contracts, in the names and behalf of, and binding upon, individuals, without their consent, then they (Congress) have no manner of authority to make any contract whatever, or any part of any contract whatever, that shall be binding upon an individual, or that shall bind his property, when his own consent has not been given. And if they have no power to make any part of [51] a contract for him, they have no power to contract that he will accept this, that, or the other thing, in payment of debts due him, when he himself has made no such agreement; but has agreed only to receive such coin, grain, or other thing, as was specially mentioned in the contract.

Plainly the powers of Congress “to borrow money,” “to lay and collect taxes,” “to regulate commerce with foreign nations, and among the several States,” and to carry on war, include no power at all to make or alter any contracts whatever for private individuals. They no more include a power to make or alter any part of a contract, for a private person, without his consent, than to make a whole contract for him, without his consent. They no more include a power to make any thing a tender in payment of debts due him, which he has not agreed to receive, than they include a power to make contracts, between individuals, to buy and sell, borrow and lend, give and receive, all kinds of property, when the individuals themselves have never agreed to any thing of the kind.

There would be just as much reason in saying that, in granting to Congress the powers “to borrow money,” “to lay and collect taxes,” “to regulate commerce with foreign nations, and among the several States,” and to carry on war, the Constitution had given Congress an unlimited power of attorney to make any and all possible contracts whatsoever, on the part of private persons, for buying and selling, for borrowing and lending, for giving and receiving, their property of all kinds, as there is for saying that the Constitution has appointed Congress the attorney of private persons, for agreeing what they will receive in payment of their debts.

But let us consider these several powers separately—

1. The power of Congress “to borrow money on the credit of the United States.”

The government notes, which Congress have declared to be a legal tender in payment of private debts, are issued under this power “to borrow money.” And, therefore, this is the power [52] that ought—if any of the powers of Congress ought—to include the power to make the notes a legal tender. But does it?

Certainly not; and for this reason, viz.: That there is no natural or logical connexion whatever between the power of Congress to borrow money of one man, and give him their note for it, and a power to make that note a legal tender in payment of a debt due to another man, who was not a party to the loan. As there is no natural or logical connexion between two such powers as these, it follows that one cannot be included in the other.

This power of Congress “to borrow money,” is plainly a simple power to borrow it by private and voluntary contracts with those who choose to lend money to the United States. It has no reference to other persons, not parties to the loans, nor to the debts of individuals to each other. The act of borrowing is complete when Congress have obtained the money, and given their notes for it. There is an end of the whole transaction, so far as the “borrowing” of the money is concerned. And there is consequently the end of the power of Congress on that subject. It is preposterous to say that this power includes, as a part of itself, a power to make contracts, on behalf of other persons, not parties to the loan, as to what they will, or will not, receive, from their debtors, in payment of their debts.

When A lends money to B, and B gives his note for it, that contract includes no contract—and implies no power on the part of B to contract—that C, D, E, and every body else will receive his (B’s) note in payment of any debts that may be due them. A and B, in this case, have no power whatever to make any contracts whatever affecting other men’s rights.

So when Congress borrow money of A, and give him their notes for it, the contract is, in all respects, like that between two individuals. It includes no contract—and implies no power on the part of Congress to contract—that B, C, D, or any body else will accept the notes which Congress give to A for the money, as a legal tender in payment of debts due them.

The act of “borrowing money on the credit of the United [53] States,” is, in its nature, a wholly private and voluntary contract between Congress and the lender of the money. It is as much a private and voluntary transaction, as is the borrowing and lending of money between two individuals. No other persons, than Congress and the lender of the money, are parties to the loan. No other parties are consulted, nor allowed any voice, in regard to the matter. How, then, can it be said that the power of Congress to borrow money of A, by private and voluntary contract with him, includes a power to agree, on behalf of B, C, D, and every body else, who had nothing to do with the loan, that they will accept from their debtors, in satisfaction of the debts due them, something different from what they had agreed to receive, and their debtors had agreed to pay?

Plainly there is no manner of relation or connexion between two powers so utterly dissimilar and foreign to each other. Consequently one is not included in, and does not constitute a part of, the other.

The only other powers that could possibly be said to be naturally, logically, or impliedly included in this power of Congress “to borrow money,” would be the powers to raise money by taxes or otherwise, and repay what they had borrowed. But these powers, instead of being left to implication, as being included in the power “to borrow money,” are expressly conferred by the Constitution, in these other words, viz.: “The Congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defence and general welfare, of the United States.”

Thus the Constitution has given to Congress, in express terms, all the powers that naturally belong together, or depend upon, or make parts of, each other, to wit: the powers to borrow money, and to raise money by taxes, &c., and pay what they have borrowed.

How absurd, then, is it, when the Constitution has been so explicit in granting all the powers on this subject, that are naturally related to each other, or in any way depend upon each other, to [54] say that the power to borrow money includes still another power, and one, too, entirely foreign to the subject, viz.: a power to make the notes, given for borrowed money, a legal tender in payment of debts to persons who had nothing to do with the loan.

2. The power of Congress “to lay and collect taxes, duties, imposts, and excises.”

It is said that this power includes a power to say in what coin, currency, or other things, the taxes, duties, &c., shall be paid. Very well; suppose it does. How does this power to designate the commodity in which taxes shall be paid to the government, include any power to make contracts, on behalf of private persons, as to what commodities they will, or will not, accept in payment of debts due them?

For the sake of the argument, it may be granted that Congress have power to enact that all taxes, &c., to the United States shall be paid in pigs. But does that power include a general power of attorney, from every body in the United States, to agree that they will accept pigs in payment of all debts due them?

If a man owes the United States one, two, three, five, or ten pigs, as taxes, it may be practically necessary that he should either raise the pigs, or buy them. If he should not, Congress may have power to order the sale of so much of his property as will purchase pigs to the amount of his taxes. But all this implies no power whatever, on the part of Congress, to usurp his rights of making his own contracts, and to agree, on his behalf, and without his consent, that he will accept pigs in payment of any, or all, debts due him.

3. The power “to regulate commerce with foreign nations, and among the several States, and with the Indian tribes.”

What is commerce? It is the purely voluntary act of two or more persons. It is the buying and selling, the borrowing and lending, the giving and receiving, of commodities by voluntary agreement between the buyer and seller, the borrower and lender, the giver and receiver.

What is it “to regulate commerce?” It is to secure and protect [55] all voluntary commerce between individuals, that is naturally and intrinsically just and lawful; and to prohibit all commerce that is naturally and intrinsically unjust and unlawful.

This power of Congress, therefore, “to regulate commerce,” is simply a power to secure and protect all commerce “with foreign nations, and among the several States, and with the Indian tribes,” that is naturally and intrinsically just and lawful; and to prohibit all commerce that is naturally and intrinsically unjust and unlawful. And this is the whole of the power; unless possibly the power may include a power to render such incidental aid to the commerce of private persons, as it may be reasonable for Congress to render, and such as may be beneficial to the parties carrying on the commerce.

But the power of Congress “to regulate commerce,” includes no power, on their part, to usurp the commerce of private persons. It includes no power to usurp the power of making contracts on behalf of private persons, without their consent. It includes, for example, no power to alter the contracts of private persons, and convert contracts for the delivery of grain, wool, or cotton, into contracts for the delivery of ice, iron, or coal. Of course, it includes no power to alter contracts for the delivery of coin, into contracts for the delivery of government notes.

It has been said by the Supreme Court of the United States, that the power of Congress “to regulate commerce,” is a power “to prescribe the rule by which commerce is to be governed.”*

Using the terms “prescribe,” “rule,” and “governed,” in the senses in which the court evidently intended to use them—that is, to signify the exercise of arbitrary authority over commerce—this definition is an utterly false and atrocious one. It would give Congress power arbitrarily to control, obstruct, impede, derange, prohibit, and destroy commerce.

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It would also give Congress power to force men to carry on commerce against their will.

To force men to carry on commerce against their will, would be no more unjust or tyrannical than it is to prohibit, impede, or obstruct commerce, when men wish to carry it on.

It is a natural right of all men (who are mentally competent to make reasonable contracts) to make such contracts as they please, for buying and selling, borrowing and lending, giving and receiving, property, provided only that there be no fraud or force used, and that the contracts have in them nothing intrinsically criminal or unjust.

The free right of buying and selling, borrowing and lending, giving and receiving (by contracts naturally and intrinsically just and lawful) all property that is naturally a subject of bargain and sale, is among the most vital and valuable of all a man’s natural rights. And this right Congress have no power to interfere with, under pretence of “regulating commerce.”

Even the power of restraining commerce, otherwise just and lawful, in order to guard against contagious diseases and public enemies, is no exception to the principle laid down; for that commerce is not intrinsically just and lawful, which carries with it contagious diseases, or introduces, or opens the door to, public enemies.

The verb “to regulate,” does not, as the court assert, imply the exercise of any arbitrary control over the thing regulated, nor any power “to prescribe [arbitrarily] the rule by which” the thing regulated “is to be governed.” On the contrary, it comes from regula, a rule; and implies the pre-existence of a rule, to which the thing regulated is made to conform.

To regulate one’s diet, for example, is not, on the one hand, to starve one’s self to emaciation, nor, on the other, to cram one’s self with all manner of indigestible and hurtful substances, in disregard of the natural laws of health. But it supposes the pre-existence of natural laws of health, to which the diet is made to conform.

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A clock is not “regulated,” when it is made to go, to stop, to go forwards, to go backwards, to go fast, and to go slow, at the mere will or caprice of the person who may have it in hand. It is “regulated” only when it is made to conform to, or mark truly, the diurnal revolutions of the earth. These revolutions of the earth constitute the pre-existing rule, by which alone a clock can be regulated.

A mariner’s compass is not “regulated,” when the needle is made to move this way and that, at the will of an operator, without reference to the north pole. But it is regulated when it is freed from all disturbing influences, and suffered to point constantly to the north, as it is its nature to do.

A locomotive is not “regulated,” when it is made to go, to stop, to go forwards, to go backwards, to go fast, and to go slow, at the mere will and caprice of the engineer, and without regard to economy, utility, or safety. But it is regulated, when its motions are made to conform to a pre-existing rule, that is made up of economy, utility, and safety combined. What this rule is, in the case of a locomotive, may not be known with such scientific precision, as is the rule in the case of a clock, or a mariner’s compass; but it may be approximated with sufficient accuracy for practical purposes.

The pre-existing rule, by which alone commerce can be “regulated,” is a matter of science; and is already known, so far as the natural principles of justice, in relation to contracts, is known. The natural right of all men to make all contracts whatsoever, that are naturally and intrinsically just and lawful, furnishes the pre-existing rule, by which alone commerce can be regulated. And it is the only rule, to which Congress have any constitutional power to make commerce conform.

When all commerce, that is intrinsically just and lawful, is secured and protected, and all commerce that is intrinsically unjust and unlawful, is prohibited, then commerce is regulated; and not before.

Of course this power of Congress “to regulate commerce,” [58] includes no power to pervert, alter, impair, or destroy the natural or intrinsic obligation of men’s contracts. Consequently it includes no power to convert a contract for the payment of gold and silver, into a contract for the delivery of government notes, or any thing else, to which the parties have never agreed.

If the power of Congress to regulate commerce were such an absolute power, as the Supreme Court represents it to be, viz.: a power “to prescribe the rule by which commerce is to be governed,” this absurd result would follow, viz.: that all the legislation of Congress on the subject would be necessarily constitutional; and the Supreme Court itself would have no right even to consider the question of its constitutionality. It would have no function to perform in regard to such legislation, except simply to interpret and execute it. In ascribing such absolute power to Congress, therefore, the Supreme Court is really denying and abjuring its own constitutional power to judge of the constitutionality of the laws of Congress. Who, before, ever imagined that the constitutionality of the laws of Congress, in regard to commerce, was not a proper subject for judicial consideration, and adjudication?

But even if the power of Congress “to regulate commerce” were of that arbitrary and tyrannical character, which the court declares it to be, it would still be insufficient to accomplish the object of making the government notes a legal tender in payment of debts generally; inasmuch as the power is only a power “to regulate commerce with foreign nations, and among the several States, and with the Indian tribes.” It is not a power to regulate the purely internal commerce of a State—that is, commerce between two persons living within the same State. It could, therefore, do nothing towards making the government notes a tender between two such persons. Its practical effect, therefore, would be, in a great measure, defeated by this limitation upon the power itself.

4. The power to carry on war.

The Constitution grants this general power to Congress in the [59] form of the several separate powers given below, (with the limitations upon them,) to wit:

“The Congress shall have power to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water: To raise and support armies; but no appropriations of money to that use shall be for a longer term than two years: To provide and maintain a navy: To make rules for the government and regulation of the land and naval forces: To provide for calling forth the militia to execute the laws of the Union, suppress insurrection, and repel invasions: To provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States respectively the appointment of the officers, and the authority of training the militia, according to the discipline prescribed by Congress.”

In the name of common sense, how can it be said that any or all these powers include a power to meddle with, make, alter, or abolish the contracts of private individuals with each other? Or—what is equivalent thereto—to make any thing a legal tender in payment of private debts, which the parties themselves have never agreed to? The former powers are all naturally so entirely foreign to the latter, that, at first view, it would scarcely seem more ridiculous to say that the power of Congress “to define and punish piracies and felonies on the high seas, and offences against the law of nations,” included a power to make government notes a legal tender in payment of private debts, than it does to say that the power of Congress to carry on war includes the power to make those notes a tender.

There would obviously be just as much reason, just as much congruity of ideas, and just as much natural and logical consistency, in saying that, because Congress have power to carry on war, and, in doing so, have occasion to sell old army stores, old horses, old muskets, old ships, and old war material in general, therefore the power of Congress to carry on war, includes a power to enact that whenever any old war material shall be sold, it shall become a legal tender, in the hands of the purchasers and [60] their assigns, in payment of all private debts, as there is in saying that, because Congress have power to carry on war, therefore, that power must include a power to make the notes given by them for money to carry on the war, a legal tender in payment of private debts.

There is just as much natural connexion between the power of Congress to carry on war, and a power, on their part, to make old war material, thus sold by them, a legal tender in payment of private debts, as there is between their power to carry on war, and a power to make the notes, given by them for money borrowed for the war, a legal tender in payment of private debts.

But it is said that Congress can borrow money cheaper, if they make their notes a legal tender, in the hands of the holders, than if they do not. So, also, it may just as well be said, that they can sell their old horses, old knapsacks, old muskets, old cannon, and old ships at higher prices, if they make them legal tender, in the hands of the purchasers and their assigns, than if they do not. If, then, the argument of profit is a sound one, in favor of the power, in one case, it is equally sound in the other.

But there is still another absurdity in this matter. The Constitution does not give absolute and unqualified power to Congress for carrying on war. It does not even give all the powers, which—but for the special limitations mentioned—would have been naturally and logically included in the general power to carry on war. For example, it says “No appropriation of money to that use shall be for a longer term than two years.” It also “reserves to the States respectively the appointment of the officers [of the militia] and the authority of training the militia, according to the discipline prescribed by Congress.”

When the Constitution is so jealous of the public rights that it expressly withholds from Congress certain powers, which otherwise would have been naturally and logically included in the general power to carry on war, how absurd is it to say that their power to carry on war includes—without its being so mentioned—a power so utterly foreign and irrelevant to it, and so [61] destructive of the principles of justice, as is the power to alter and impair men’s contracts by making government notes a tender in payment of private debts.

There would be just as much reason in saying that the power of Congress to carry on war, includes a power to make the speeches delivered in Congress in favor of the war, a tender in payment of men’s debts, as there is in saying that it includes a power to make the government notes such a tender.

It will now be taken for granted that it has been shown that neither the power “to borrow money,” “to lay and collect taxes,” “to regulate commerce with foreign nations, and among the several States,” nor to carry on war, gives Congress any power to make government notes a legal tender in payment of private debts.

But it is said, by some of those who attempt to uphold the legal tender acts, that Congress not only have certain specific powers granted to them by the Constitution—such as the powers to borrow money, carry on war, &c.—but that they have another, and a very comprehensive, power, viz.:

5. The “power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or any department thereof.”

Some, or all, those persons, who have quoted this provision, as authorizing the legal tender acts, say that Congress are the sole judges of what laws are thus “necessary and proper,” and have, therefore, unlimited powers to pass any laws they see fit, provided only that the laws will tend to carry into execution the other constitutional powers of Congress, and are not actually forbidden by the Constitution. Consequently they say that, as the Constitution has not forbidden Congress to make their notes a legal tender, and as the making them such will aid in borrowing money for the war, they necessarily have the power to make them such.

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In other words, they say, in effect, (and without saying so, their argument would amount to nothing,) that all laws whatsoever—no matter how unjust in themselves—that will, in any way, serve to accomplish a constitutional end—such as borrowing money, carrying on war, &c.—are constitutional means to that end, if Congress shall decide to use them, and if the Constitution has not forbidden those particular laws.

In short, their argument is, that the simple injustice of the laws is, of itself, no argument against their being “necessary and proper,” and, therefore, constitutional.

And they say, further, that, in the case of McCulloch vs. Maryland, the Supreme Court of the United States has declared this same doctrine.

One answer to these persons is, that the Supreme Court did not say, either expressly or impliedly, in the case of McCulloch vs. Maryland, that the injustice of a law could not be taken into consideration in determining whether it were “necessary and proper,” and, therefore, constitutional—if it would but tend to accomplish a constitutional purpose, and if the Constitution had not forbidden it.

Another answer is, that if the Supreme Court had declared such a principle, they would have as much deserved to be hanged, as any criminal that ever mounted the gallows.

If all laws of Congress, however unjust, are nevertheless constitutional, if not forbidden, and if they will tend to accomplish any constitutional end, there is scarcely any conceivable injustice which Congress might not constitutionally authorize, as being “necessary and proper” means of accomplishing constitutional ends.

For example: The Constitution does not, in so many words, forbid Congress to prohibit all loaning of money to private persons, until Congress shall have borrowed all they wish, and at such rates as they please. The Constitution does not, in so many words, forbid Congress to prohibit matrimony on the part of each and every individual, until he or she shall have loaned one, five, [63] ten, or fifty thousand dollars to the government. It does not, in so many words, forbid Congress to cause scalding water to be thrown upon the children of all persons who refuse to lend their money to the United States. It does not, in so many words, forbid Congress to make it a criminal offence—punishable with confiscation, imprisonment, or death—to refuse to lend money to the government, in such amounts, for such times, and at such rates of interest, as Congress may prescribe, or without any interest at all. Such laws might, perhaps, aid Congress in borrowing money at lower rates than they otherwise could. But would such laws be, therefore, constitutional? And would courts have no power to declare them unconstitutional? Certainly such laws would be, not simply unjust, but also unconstitutional. And certainly it would be the duty of the courts to declare them so. But they would be no more clearly unconstitutional, than are the laws making the government notes a legal tender in payment of private debts.

The Supreme Court, in the case mentioned, did not say one word in favor of Congress having power to pass unjust laws—as being “necessary and proper” to accomplish constitutional ends—if they were not forbidden.

The language of the court is not, perhaps, so explicit as it ought to be. And, without ascribing to that court any immaculate purity, it may be said that their opinion is, very likely, not so explicit as it would have been, if they had supposed there would ever come after them judges so ignorant, or so corrupt, as to cite their opinion in support of a proposition so infamous.

The precise words of the court are these:

“Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and the spirit of the Constitution, are constitutional.”—4 Wheaton, 421.

And the court said nothing inconsistent with these limitations, [64] viz.: that all laws, in order to be “necessary and proper” for carrying into execution the constitutional powers of Congress, must be “appropriate” to the end in view, and must also “consist with the letter and the spirit of the Constitution.”

What, then, are “the letter and spirit of the Constitution” on these particular subjects of legal tender, and the inviolability of private contracts? They are to be found in these four provisions, viz.:

1. “Congress shall have power to coin money, and regulate the value thereof, and of foreign coin.”

2. “Congress shall have power to establish uniform laws on the subject of bankruptcies, throughout the United States.”

3. “No State shall make any thing but gold and silver coin a tender in payment of debts.”

4. “No State shall pass any law impairing the obligation of contracts.”

These provisions—and there are no others conflicting with them either in letter or spirit—give us fully and distinctly both “the letter and the spirit of the Constitution,” relative to legal tender, and the inviolability of contracts. What countenance do they give to any power in Congress to impair or destroy men’s contracts, by authorizing them to be paid in something which the debtor never agreed to pay, nor the creditor to receive?

But there is still another mode of ascertaining whether the Constitution authorizes Congress to pass any unjust laws, as being “necessary and proper” for carrying into execution the powers specifically granted. And that mode is furnished by the primary rule of interpretation, which is acknowledged to be authoritative for interpreting all legal instruments whatever which courts enforce. That rule is, that an innocent meaning—a meaning favorable to justice—and no other, must be given to all legal instruments—whether contracts, statutes, constitutions, or treaties—whose language will possibly bear that meaning.

The Supreme Court of the United States have laid down the rule in these words:

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“Where rights are infringed, where fundamental principles are overthrown, where the general system of the laws is departed from, the legislative intention must be expressed with irresistible clearness, to induce a court of justice to suppose a design to effect such objects.”*

The same rule, in substance, but in different words, is continually laid down by courts, in their interpretations of constitutions, statutes, and contracts. Every judge, not an ignoramus, is perfectly familiar with the rule. And every judge, who ever violates the rule, is either ignorant or corrupt. The test is an infallible one.

This rule is as applicable to the interpretation of the Constitution as of any other instrument whatever; and is sufficient, of itself, to prove that the Constitution authorizes no unjust laws whatever (unless explicitly mentioned) as being “necessary and proper” for carrying into execution the general powers granted to the government.

Of course, the rule is sufficient to prove that the Constitution gives Congress no power to impair or destroy the obligation of men’s private contracts, as a means of borrowing money a little cheaper than they otherwise could.

It is sickening to think that there can be found judges so ignorant or unprincipled, as to argue that the Constitution authorizes all manner of unjust laws, except those that it forbids. And yet this is what these judges have been necessitated to do, who have attempted to sustain the legal tender acts of Congress.

If those who framed the Constitution, had undertaken to enumerate—in order to forbid—all the unjust laws that Congress might otherwise devise and enact, under pretence of carrying out their constitutional powers, the instrument would never have been completed. They, therefore, contented themselves with framing an instrument that should grant certain important powers to the government, with “power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers,” [66] &c.; trusting that the instrument, being avowedly instituted “to establish justice, insure domestic tranquility, promote the general welfare, and insure the blessings of liberty,” would find interpreters honest enough to give it the benefit of a rule that would at least forbid all injustice, that was not specially licensed by it. And this was all that was really necessary, in a legal point of view.

Nevertheless, after the Constitution had been adopted, the country—having some knowledge of the propensity of legislative bodies to disregard all constitutional and moral restraints, and to resort to all manner of injustice, under the pretext of its being “necessary and proper” for accomplishing some desirable purpose or other—did append various amendments to the Constitution, specially enumerating, and forbidding, some of those unjust laws, which it was supposed Congress would otherwise be most likely to enact.

Among the laws thus explicitly forbidden, were laws “prohibiting the free exercise of religion;” “abridging the freedom of speech or of the press;” “infringing the right of the people to keep and bear arms;” “depriving persons of life, liberty, or property, without due process of law;” “taking private property for public use, without just compensation;” and several others. Having done this, the country then—as if aware of the impossibility of enumerating all laws that ought to be forbidden, and by way of imposing a general prohibition against all unjust laws not specially enumerated—added these two comprehensive amendments, viz.:

“The enumeration, in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

“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.”

These amendments are supplementary to all other provisions, and rules of interpretation, and are, of themselves, sufficient, if [67] any thing more were needed, to prohibit any and every species of injustice, that is not (in the language of the Supreme Court) licensed in terms of “irresistible clearness.”

The only argument, on which the legal tender acts are really attempted to be sustained, is equivalent to this: That Congress have constitutional power to license universal fraud, the violation of all faith, and the disregard of all justice, between man and man, in their private dealings, if the government can thereby borrow money cheaper than it otherwise could.

At the value at which the legal tender notes now stand in the market,* the government says to all debtors throughout the country: If you will lend to the government the money you honestly owe to your creditors, the government will license you to defraud them of some thirty or forty per cent. of what you owe them. The government holds this out as a standing offer to all debtors; and, perhaps, by so doing, it saves one, two, or three per cent. on the amount it borrows; and perhaps not.

If, now, the government may rightfully resort to such means as these to save a small per centage on its loans, it may, on the same principle, license those men, who lend money to the government, to commit all manner of crimes against their neighbors with impunity.†

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But, were it not that Congress might attempt to pass new tender laws, all the preceding argument might have been spared; because their existing laws, declaring United States notes a legal tender, are utterly void for still another reason than the want of any constitutional power on the part of Congress to make any thing but “coin” such a tender. That other reason is, that the acts do not declare the value of the notes; or how much they shall be a tender for. Congress seem to have taken it for [69] granted that by simply declaring that they “shall be lawful money, and a legal tender in payment of all debts public and private,” they had virtually declared that these mere promises to pay dollars should be held equivalent to an equal number of real dollars. But such would not be the legal effect of the statute, even if we were to admit the constitutional power of Congress to make the notes a tender. It would still be necessary for Congress to specify precisely the value the notes should have, relatively to coin. Suppose that Congress (having power to do so) had enacted that apples, onions, and potatoes, “shall be lawful money, and a legal tender in payment of all debts public and private,” it would not follow, from this form of words, that each apple, onion, or potato, was to be considered either a dollar, or the equivalent of a dollar. Neither, because Congress have declared that certain government promises to pay dollars, “shall be lawful money, and a legal tender in payment of all debts public and private,” does it follow (without its being so specified) that these promises are to be considered, for the purposes of such tender, equal in value to the number of dollars promised.

But the men, who enacted these tender laws, and the judges, who have attempted to sustain them, have assumed that a promise to pay a dollar was to be considered the equivalent of a dollar, for the purposes of legal tender; when the acts themselves said nothing of the kind; and nothing from which any inference could legally be drawn, as to what value they were to have, as a tender.

The necessary consequence is that—for this reason alone, if there were no other—all the existing acts of Congress making United States notes a tender in payment of “private debts,” are void.*

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The fact that such a blunder as this should pass the ordeal of Congress, and of four or five courts, shows what brilliant and careful lawyers Congress and the courts are made up of.

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CHAPTER VI.: UNCONSTITUTIONALITY OF THE NATIONAL BANK ACT.

The National Bank Act is unconstitutional in various particulars, as follows:

1. It proceeds throughout on the assumption that the notes of the government will be a legal tender in payment of all debts due to and by the banks. If, then, the Legal Tender Acts of Congress are unconstitutional, as shown in the preceding chapter, the Bank Act must fall with them; for the banks, authorized by the act, cannot sustain themselves for an hour, as practical business institutions, if liable to be sued on their notes for specie; nor can the customers of banks, if solvent men, afford to borrow depreciated currency, and give their notes for it, if they are liable to be sued on those notes for specie. The unconstitutionality of the Legal Tender Acts, therefore, settles at once all questions as to the practicability of the national banks.

2. The guaranty of the notes of the banks by the government is unconstitutional.

Where did Congress get their power to guarantee the notes of banks all over the country? In the same clause of the Constitution that gives them power to guarantee the notes of all the farmers, mechanics, merchants, and every body else, throughout the country; and in no other. And that clause will be found, if at all, in the Constitution manufactured by Congress themselves. It certainly exists in no Constitution that the country has ever known any thing of previous to the last Congress.

But it will be said that Congress secure the United States against loss, by requiring a deposit of their own bonds with the [72] United States Treasurer. Well, suppose they do. Have Congress the power to guarantee the notes of all other persons, who will deposit bonds or other property, satisfactory to Congress, to indemnify the United States against loss? If not, then they have no power to guarantee the notes of bankers on those conditions. And if any officer of the government should ever pay a dollar of the public money on any such guaranty, or if the President should suffer any officer of the government to pay a dollar on any such guaranty, he ought to be impeached. And if any judge, having jurisdiction, should refuse to enjoin the United States Treasurer against thus paying the public money, he would deserve impeachment.

The idea that Congress have any constitutional power to guarantee the notes of bankers, or of any body else, is perfect idiocy.

3. As Congress have no constitutional power to guarantee the notes of bankers, or any body else, and as such guaranty, if given, is void, they have no constitutional power to require or accept deposits of their own bonds, or of any other property, to indemnify the United States for such unconstitutional and void guaranty. Consequently all such deposits are, in law, void; and Congress have no authority to avail themselves of them. Any bonds actually deposited with the United States Treasurer, for such a purpose, are, in law, deposited with him as an individual, and not as an agent or officer of the United States; and Congress have no power to make the United States responsible for his safe keeping of the bonds. And he is in no manner responsible to the United States for the use he makes of the bonds. The owners of them may demand them at pleasure, on the ground that they were deposited for no lawful purpose, and that the United States have no lien upon them. Or the Treasurer may appropriate them to his own use, and Congress could call him to no account for so doing. The owners alone could have any action against him.

Suppose Congress were to appoint agents throughout the country, to receive deposits of property, from all persons who might [73] choose to make them, and thereupon to furnish, to the depositors, notes guaranteed by the United States. We all know that all such transactions would be void in law, on the grounds that Congress had no power to make any such guaranty, or consequently to receive any deposits of property to protect the United States against it. Congress would have no power to make the United States responsible for the safe keeping of such deposits; or to hold their illegal agents to any legal responsibility for the property deposited with them. These pretended agents of the United States would be, in law, the agents of the depositors alone; and the depositors could recover their deposits at pleasure, without any interference from the United States. And the case is the same with these bankers, as it would be with any other persons, farmers, merchants, or others, who might deposit property with any pretended agent of the United States, and receive in exchange notes guaranteed by the United States.

Congress have just as much constitutional power to go into a general guarantee business, guaranteeing the notes of any body, and every body, as they have to guarantee the notes of bankers.

4. The undertaking of Congress to furnish the banks with the notes they are to use, is unconstitutional. Where did Congress find their power to go into the business of bank note engraving? In the same clause of the Constitution that gives them power to go into the daguerreotype business; and in no other. Congress have just as much power to furnish the banks with banking houses, with vaults, safes, desks, and stationery; and to appoint and pay their presidents, cashiers, and clerks, as they have to furnish the bills of the banks. And the fact that Congress are to be paid for the bills they furnish, and that the business may be a profitable one, does not at all alter the case. There are, perhaps, many kinds of business that might be made profitable, if Congress were to take it into their own hands, and suppress all competition. But it does not, therefore, follow that Congress can go into such business.

Congress have just as much power to go into the business of [74] making farming utensils, and selling them to the farmers; of making machinery, and selling it to manufacturers; of making locomotives, and selling them to rail-road companies, as they have to go into the bank note business.

5. Congress have no power to incorporate these banking companies, or give them any corporate privileges, or hold them to any corporate responsibility whatever.

As long ago as 1819, in the case of McCulloch vs. Maryland, (4 Wheaton’s Reports,) the Supreme Court of the United States gave an opinion, which fully covers the Bank Act of Congress, and declares it unconstitutional. In that case the court held that the law incorporating the old bank of the United States was constitutional. But they declared it so, distinctly and solely, on the ground that the bank was a necessary, or at least a proper and useful, agency to be employed in keeping and disbursing the public monies. And those services the bank was required, by its charter, to perform, free of expense to the government; transmitting money from one part of the country to another, without any charge for exchange.*

Thus the court say:

“Throughout this vast republic, from the St. Croix to the Gulf of Mexico, from the Atlantic to the Pacific, revenue is to be collected and expended, armies are to be marched and supported. The exigencies of the nation may require that the treasure raised in the North should be transported to the South, that raised in the East conveyed to the West, or that this order should be reversed. Is that construction of the Constitution to be preferred which would render these operations difficult, hazardous, and expensive?” Page 408.

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“It is not denied that the powers given to the government imply the ordinary means of execution. That, for example, of raising revenue, and applying it to national purposes, is admitted to imply the power of conveying money from place to place, as the exigencies of the nation may require, and of employing the usual means of conveyance. But it is denied [by the counsel opposed to the bank] that the government has its choice of means; or that it may employ the most convenient means, if to employ them, it be necessary to erect a corporation.

“On what foundation does this argument rest? On this alone: The power of creating a corporation, is one appertaining to sovereignty, and is not expressly conferred on Congress. This is true. But all legislative powers appertain to sovereignty,” &c. Page 409.

“If a corporation may be employed indiscriminately with other means to carry into execution the powers of the government, no particular reason can be assigned for excluding the use of a bank, if required for its fiscal operations. To use one must be within the discretion of Congress, if it be an appropriate mode of executing the powers of the government. That it is a convenient, a useful, an essential instrument in the prosecution of its fiscal operations, is not now a subject of controversy. All those who have been concerned in the administration of our finances, have concurred in representing its importance and necessity; and so strongly have they been felt, that statesmen of the first class, whose previous opinions against it had been confirmed by every circumstance which can fix the human judgment, have yielded those opinions to the exigencies of the nation. Under the Confederation, Congress, justifying the measure by its necessity, transcended perhaps its powers to obtain the advantages of a bank; and our own legislation attests the universal conviction of the utility of this measure.” Page 422-3.

By the “fiscal operations” of the government, the court must be supposed to mean simply the keeping and disbursing of the public money; for those were the only “fiscal operations” the bank was required, by its charter, to perform for the government; and they were also the only “fiscal operations,” that were specially pointed out by the court, as being such as the bank could perform as the agent of the government. The bank was, therefore, held constitutional solely upon the ground of its being [76] a proper and useful agent of the government for keeping and disbursing the public money.

The point of the opinion was, that, if the government needed an agency of that kind, for executing any of its constitutional powers, it had a right to create one by an act of incorporation.

On this principle, if the government were to make a contract, with a body of men, to carry the mail, or furnish supplies for the army, it would have a right to incorporate them.

That was the only ground on which the court held that that bank charter was constitutional. The whole argument of the court proceeded upon the ground that Congress had no power to grant charters of incorporation, except to companies whose services were needed by the government itself, in performing some one or other of its constitutional duties.

If that opinion of the court was correct, it follows that the present Bank Act of Congress is clearly unconstitutional; inasmuch as the banks, authorized by it, are, in no sense, agencies of the government; and are not required, by the act, to perform any services whatever for the government. And Congress, therefore, have no more power to incorporate them, than they have to incorporate hospitals, schools, churches, rail-road, insurance, manufacturing, and mining companies.

It is worthy of notice, too, that notwithstanding the Supreme Court held that the charter of the old bank was constitutional, probably more than half the people of the United States have always believed it unconstitutional.

And it was unconstitutional, in so far as it licensed the stockholders to contract debts among the people, in their corporate capacity, and under a limited liability. Congress have no authority to pass any law impairing or limiting the obligation of men’s contracts, or screening their property from liability for debt, unless it be a “uniform law on the subject of bankruptcies.” A bank charter does not come within that definition; and therefore a bank charter is unconstitutional, in so far as it attempts to exempt the corporators from their liability as partners, [77] no matter what services the bank may perform for the government.

The argument of the court does not at all sustain the conclusion that Congress have any such power. That argument was that Congress had authority to “pass all laws that were necessary and proper for carrying into execution” the substantive powers of the government; and that, therefore, if a corporation were a convenient and proper agent to be employed in keeping and disbursing the revenues, Congress had a right to create such an agent. That is to say, if Congress wished to contract with a company of men to perform a certain service for the government, they had power to recognize them as a corporation, so far as the performance of that particular service was concerned. This all looks reasonable enough; and it is probably correct law that Congress may incorporate a company, and authorize them to do, in their corporate capacity, any thing which they are to do for the government. And Congress may undoubtedly limit, at discretion, the liability which the stockholders shall incur to the government. And the company may probably, in their corporate capacity, buy and sell bills of exchange, so far as it may be convenient to do so, in transmitting the public funds from one point of the country to another; because bills of exchange are the most usual, safe, cheap, and expeditious mode of transmitting money.

But all this is a wholly different thing from a charter authorizing the company, not only to perform these services for the government, but also to carry on the trade of bankers, in all its branches, and contract debts at pleasure among the people, without being liable to have payment of their debts enforced, either according to the natural obligation of contracts, or the laws of the States in which they live.

The argument of the court does not justify the grant of any such authority to the company. It goes only to the extent of authorizing the company to use their corporate rights in doing the business of the government alone; for the court say, that if [78] an agent be needed to perform certain services for the government, the government may create an agent for that purpose. The court admit also, that the need or utility of such an agent for carrying into execution the powers of the government, is the only foundation of the authority to create the agent. This principle clearly excludes the idea of creating the corporation for any other purpose; and of course it excludes the idea of giving it any other corporate powers than that of performing the services required of it by the government. Now, in order that the company may keep and disburse the revenues (which were the only services the government required, or which the opinion of the court contemplated that the bank would perform) it plainly was not at all necessary that they should have the privilege of contracting debts among the people, as bankers, in their corporate capacity, or under a limited liability, or with an exemption from the operation of those State laws, to which all other citizens are liable.

If Congress may, by a charter, protect the private property of a company of bankers, from liability for their banking debts, according to the laws of the States, merely because, in addition to their banking business, they perform for the government the service of keeping and disbursing its revenues, then, by the same rule, Congress may by law forbid the State governments to touch the private property of any Collector of the Customs, or of any clerk in the Custom House, for the purpose of satisfying his debts. And the result of this doctrine would be, that every person, who should perform the slightest service of any kind for the government, might be authorized by Congress to contract private debts at pleasure among the people, and then claim the protection of Congress, not merely for his person, but also for his property, against the State laws which would enforce the obligation of his contracts. Every postmaster, for instance, and every mail contractor might have this privilege granted to them as part consideration for their services; for Congress have as much power to grant this privilege to postmasters and mail carriers, in consideration [79] of the particular services they perform for the government, as they have to grant it to a company of bankers, as a consideration for their keeping and disbursing the revenues.

But suppose that Congress should enact that the private property of all officers and agents of the government, and all persons having contracts to furnish supplies to the government, should be exempt from liability for debt. Would there not be one universal outcry that such a law was unconstitutional? Certainly there would. But it would be no more unconstitutional than a law exempting the private property of a company of bankers, on account of their being the agents of the government for keeping and disbursing its revenues.

In this particular, then, the charter of the old bank was unconstitutional. And if that charter was unconstitutional, still more, if possible, are the charters of the present banks unconstitutional, inasmuch as these banks perform no services at all for the government. They entirely lack the only element that was supposed, by the court, to make the charter of the old bank constitutional.

If the Constitution itself gives Congress no power to incorporate banks, their law, for that purpose, cannot be made constitutional by the consent of the State legislatures. The constitutional powers of Congress, within a State, cannot be increased by the consent of the State legislature. If they could, the general government might have much greater powers in one State than in another. It might increase its powers in each State just according as it could make bargains with the legislature of the State. In fact, a State legislature might, by a simple vote, surrender all the constitutional powers of the State to the general government.

If the Bank Act be unconstitutional, the banks can have no corporate existence under it; and can neither sue, nor be sued, by their corporate names. The bankers can sue and be sued, if at all, only as partners; and they will be liable as partners for all debts of the banks.

If the act be unconstitutional, then all its provisions for preventing [80] frauds on the part of the bankers, are void, and the directors can commit all manner of frauds against both bill holders and stockholders, and no redress can be had, unless under the laws of the States relative to swindling; and even that redress would most likely prove of no practical value.

The directors, having obtained their bills of the United States Treasurer, by a deposit of bonds, would loan the bills to themselves, or to men confederated with them. They would then demand the bonds of the Treasurer, on the grounds that the Act was unconstitutional; that the United States were not holden for the bills, and had no lien upon the bonds, and were not even responsible for the safe keeping of the bonds. The Treasurer, unless he wished to embezzle the bonds himself, would give them up. If he should not give them up willingly, suit would be brought to compel him.

Having got the bonds, the directors would dispose of them, and put the proceeds in their pockets.

Having thus embezzled the capital and assets of a bank, if they should be indicted under the bank act itself, they would plead that the act was unconstitutional, and that there was, in law, no corporation. After one, two, or three years delay, that plea would be sustained, unless the court should overrule the opinion in McCulloch vs. Maryland, which is not to be expected.

On the other hand, if they should be indicted under the State laws, they would plead that the bank act was constitutional; and that they were liable only under that act. In this way they would tie up the case with law questions for as long a period as possible.

And whether indicted in the United States or in the State courts, they would make all possible delay, under pretence of procuring testimony as to their having made loans in good faith, but on securities which unexpectedly proved worthless. And before a decision should be reached, the funds would have all gone to the four winds.

The result would be that neither the stockholders nor the bill [81] holders would ever obtain any redress of any practical value. If the bill holders should ever obtain any redress, they would obtain it only by suing those innocent stockholders, who would have already been swindled out of their capital.

Nobody but dupes and swindlers would ever think either of investing in such banks, or of taking their bills.

6. Even if the Act in general were constitutional, the sixty-first section, declaring that any bank, incorporated under State laws, may “become an association under the provisions of this act,” provided “the owners of two thirds of the capital stock of such banking corporation or association” shall consent to the change, would be unconstitutional.

When a body of men form themselves into a banking company, under a State charter, they legally enter into a contract with each other, that the capital, thus invested, shall be held and managed under that charter; and of course under that charter alone. For “the owners of two thirds the capital stock” of such a bank to divert that capital from the uses agreed upon, and invest it in banking under a charter granted by Congress, to which all the stockholders have not agreed, is a breach of contract, and a breach of trust, as against all non-concurring stockholders. And Congress have no more authority to authorize such a breach of contract, or trust, and such a diversion of the capital from the objects agreed upon, than they have to authorize “the owners of two thirds the capital stock” of a manufacturing company, an insurance company, or a church, to divert the whole capital from the objects for which it was contributed, and appropriate it to the establishment of a race course, a theatre, or a distillery.

And if the directors of a State bank should thus divert its funds, they would be liable, possibly to indictment, and certainly in civil actions for damages, on the part of the non-concurring stockholders.

There are some other provisions in the act, richly worthy of notice, as exhibiting the legal acumen, and the business sagacity, [82] of the Congress that passed it. But space cannot here be spared to present them.

The bill now before Congress,* (and which is likely to pass, as being necessary to force the National Bank Act upon the country,) prohibiting, after one year, all banking, (issuing bills for circulation,) except by bankers, “authorized thereto by act of Congress,” is not merely unconstitutional; it is villainous. The Constitution does not require the people of this country to get permits from Congress for carrying on any innocent and lawful business. Nor does it give Congress any power to suspend all industry and commerce, except by persons “authorized thereto by act of Congress.” If the Constitution did this, then, instead of spending so much blood and treasure to sustain it, we ought, (if it could not be otherwise abolished,) to spend the same blood and treasure to overthrow it. Congress have just as much constitutional power to say that no person shall breathe in this country, “unless authorized thereto by act of Congress,” as they have to say that no man shall carry on the business of a banker, or any other innocent and lawful business, without being first licensed by act of Congress.

Congress have no more constitutional power to prohibit banking, than they have to prohibit farming, manufacturing, or commerce. They have no more power to prohibit banking, than they have to prohibit all the industry and commerce that are carried on by means of bank credits and currency. They have no more constitutional power to say that the people shall have no currency, except such as Congress shall have specially licensed, than they have to say that they shall have no farming utensils, no cattle, horses, sheep, pigs, or poultry, that they shall raise no crops, build no houses, eat no food, wear no clothing, except such as Congress shall have specially licensed. This proposition is so obviously and self-evidently true, that it would be wasting words and paper to expend any argument upon it.

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But even if this bill should be considered constitutional, it would have no effect to prohibit the author’s system of banking; because that has been already licensed by act of Congress—that is, by the copyright act. And that act is unquestionably constitutional; for it is expressly authorized by the Constitution. That license, therefore, must stand good, unless Congress commit a deliberate breach of faith. And even if Congress were to commit a deliberate breach of faith, by prohibiting the author’s system, it would still be a question whether rights once vested and guaranteed, by a law that was unquestionably constitutional, could be destroyed by an act of wanton perfidy and spoliation? Whether that would not be “depriving a person of property without due process of law?” And whether it were not therefore expressly forbidden by the Constitution?

The other section of the same bill, imposing a discriminating tax of one-fourth of one per cent. a month upon all bills in circulation, issued by banks or bankers not “thereto authorized by act of Congress,” is equally unconstitutional and villainous with the section that is to prohibit all banking after one year. Inasmuch as Congress have no power to require the people to get permits from Congress for carrying on any innocent and lawful business, they have no power to impose a discriminating tax upon those who do not get such permits.

If Congress can impose a discriminating tax upon all who do not get permits from Congress to carry on their business, all the industry and commerce of the country may be brought under the arbitrary control of Congress; and permits to carry them on may be given out as privileges only to Congressional favorites.

There is no reason why bankers should be singled out for all this unconstitutional, absurd, tyrannical, and villainous legislation. By furnishing credit and currency to keep industry and commerce in motion, they do more for the wealth of the country than any other equal number of men, unless it be inventors. Their business is intrinsically as innocent and lawful as that of any other class of persons. The only complaints that can be made against [84] them, are, that there are not half enough of them, and that their systems of banking are not good ones. But these faults are not the faults of the bankers themselves, but of the laws that limit the number of bankers, and prohibit the adoption of other and better systems.

All the laws that are necessary in regard to banking, are such as are applicable to all other business, viz.: laws giving inventors the benefit of their inventions, and laws compelling the bankers to fulfil their contracts, and punishing their frauds and crimes. Such laws as these will give us the benefit of the best systems of banking that men can invent; and those are the best that, in the nature of things, we can have.

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CHAPTER VII.: EXCHANGES UNDER THE AUTHOR’S SYSTEM.

It will be very easy, under the author’s system, to give the currency a uniform value in all parts of the country; as follows:

In the first place, where the capital shall consist of mortgages, it will be very easy for all the banks, in any State, to make their solvency known to each other. There would be so many banks, that some system would naturally be adopted for this purpose.

Perhaps this system would be, that a standing committee, appointed by the banks, would be established, in each State, to whom each bank in the State would be required to produce satisfactory evidence of its solvency, before its bills should be received by the other banks of the State.

When the banks, or any considerable number of the banks, of any particular State—Missouri for example—shall have made themselves so far acquainted with each other’s solvency, as to be ready to receive each other’s bills, they will be ready to make a still further arrangement for their mutual benefit, viz.: to unite in establishing one general agency in St. Louis, another in New Orleans, another in Chicago, another in Cincinnati, another in New York, another in Philadelphia, another in Baltimore, and another in Boston, where the bills of all these Missouri banks shall be redeemed. And thus the bills of all Missouri banks, that belonged to the Association, would be placed at par at all the great commercial points.

Each bank, belonging to the Association, might print, on the back of its bills, “Redeemable at the Missouri Agencies, in St. Louis, Chicago, Cincinnati,” &c.

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In this way all the banks of each State might unite to establish agencies in all the large cities for the redemption of their bills.

The banks might safely make permanent arrangements of this kind with each other; because the permanent solvency of all the banks might be relied on.

The permanent solvency of all the banks might be relied on, because, under this system, a bank, (whose capital consists of mortgages,) once solvent, is necessarily forever solvent, unless in contingencies so utterly improbable as not to need to be taken into account. In fact, in the ordinary course of things, every bank would be growing more and more solvent, because in the ordinary course of things, the mortgaged property would be constantly rising in value, as the wealth and population of the country should increase. The exceptions to this rule would be so rare as to be unworthy of notice.

There is, therefore, no difficulty in putting the currency, furnished by each State, at par throughout the United States.

At the general agencies in the great cities, the redemption would doubtless generally be made in specie on demand, because, at such points, especially in cities on the seaboard, there would always be an abundance of specie in the market as merchandize; and it would, therefore, be both for the convenience and interest of the banks to redeem in specie on demand, rather than by a conditional transfer of a portion of their capital, and then paying interest on that capital until it should be redeemed with specie.

Where rail-roads were used as capital, all the banks in the United States could form one Association, of the kind just mentioned, to establish agencies at all the great commercial points, for the redemption of their bills.

Where United States Stocks should be used as capital, the same system could be safely adopted, for redeeming their currency in all the great cities, as where mortgages were the capital; because, although United States stocks are below par of specie, yet every bank, using them as capital, could know that the currency [87] of every other bank of the same kind was worth at least as much as the stocks it should represent. Since there would be always a dollar of the stocks in bank, for every dollar of currency that could be put in circulation, the banks could always know the lowest possible value of each other’s currency, by knowing the market value of the stocks it should represent.

The currency might sometimes be worth more than the capital, dollar for dollar; because, although the capital (U. S. stocks) should be below par of specie in the market, yet the bank might have assets (in the shape of notes discounted, and profits accumulated) equal, or more than equal, to its capital. And these assets must all be exhausted, in the redemption of its bills with specie, before its bills could be worth less than par of specie. But suppose all these assets exhausted, the currency would still be worth as much as the capital, dollar for dollar; because the capital itself can be demanded for the currency, if specie be refused. Although, therefore, the currency of banks, based upon United States stocks, might be sometimes worth more than the stocks, (when these were below par of specie,) it can never be worth less than the stocks. And as the market value of the stocks would be always known, the lowest possible value of the currency (for the time being) could always be known. The bills of a bank, based upon United States stocks, would, therefore, be worth, all over the country, at least as much as the stocks.

It is doubtful, however, whether currency of that kind, always liable to be below par of specie, and variable at that, could be made a desirable one. It would, therefore, probably not be expedient to use United States stocks as banking capital, on the plan of issuing a dollar of currency for a dollar of stocks. The better way of using the stocks as banking capital, while they are so much below par of specie, would probably be to put in two dollars of bonds to make one of banking capital. This would make the bank capital worth a little more than par of specie; and would, of course, make the currency worth par of specie.

Using United States stocks in this way—that is, using two [88] dollars of bonds to make one of banking capital—the United States bonds now extant, and those hereafter to be issued, would probably afford a basis for as much currency as the banks could keep in circulation; especially if mortgages or rail-roads should be used as a basis in competition with the bonds.

If, however, the stocks should ever rise to par, and stand there permanently, and it should be found desirable to issue more currency upon them, the banks using two dollars of bonds for one of capital could be dissolved, and new ones formed, that should use the stocks at their par value, and issue currency upon them accordingly.

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APPENDIX.

THE AUTHOR’S COPYRIGHT.

Inasmuch as some persons have suggested that the author’s copyright of his Articles of Association may be evaded, he has thought proper to exhibit some of the obstacles, both practical and legal, in the way of any such evasion.

The practical obstacles—or at least some of them—are shown in the following “Note,” republished from his “New System of Paper Currency.”

NOTE.

The subscriber believes that the right of property in ideas, is as valid, in the view both of the Common and constitutional law of this country, as is the right of property in material things; and that patent and copyright laws, instead of superseding, annulling, or being a substitute for, that right, are simply aids to it.

In publishing this system of Paper Currency, he gives notice that he is the inventor of it, and that he reserves to himself all the exclusive property in it, which, in law, equity, or natural right, he can have; and, especially, that he reserves to himself the exclusive right to furnish the Articles of Association to any Banking Companies that may adopt the system.

To secure to himself, so far as he may, this right, he has drawn up and copyrighted, not only such general Articles of Association as will be needed, but also such other papers as it will be necessary to use separately from the Articles.

Even should it be possible for other persons to draw up Articles of Association, that would evade the subscriber’s copyright, banking companies, that may adopt the system, will probable find it for their interest to adopt also the subscriber’s Articles of Association: for the reason that it will be important that Companies should all have Articles precisely, legally, and verbally alike. If their Articles should all be alike, any legal questions that may arise, when settled for one Company, would be settled for all.

Besides, if each Company were to have Articles different from those of others, no two Companies could take each other’s bills on precisely equal terms; because their legal rights, as bill holders, under each other’s Articles, would not be precisely alike, and might be very materially different.

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Furthermore, if each Company were to have Articles of Association peculiar to itself, one Company, if it could take another’s bills at all, could not safely take them until the former had thoroughly examined, and satisfactorily ascertained, the legal meaning of the latter’s Articles of Association. This labor among banks, if Companies should be numerous, would be intolerable and impossible. The necessity of studying, understanding, and carrying in the mind, each other’s different Articles of Association, would introduce universal confusion, and make it impracticable for any considerable number of Companies to accept each other’s bills, or to coöperate in furnishing a currency for the public. Each Company would be able to get only such a circulation as it could get, without having its bills received by other banks. But if all banks have precisely similar Articles of Association, then one Company, so soon as it understands its own Articles, understands those of all other Companies, and can exchange bills with them readily, safely, and on precisely equal terms.

Moreover, if each separate Company were to have its peculiar Articles of Association, it would be wholly impossible for the public to become acquainted with them all, or even with any considerable number of them. It would, therefore, be impossible for the public to become acquainted with their legal rights, as bill holders, under all the different Articles. Of course they could not safely accept the currency furnished by the various Companies. But if all the Companies should have Articles precisely alike, the public would soon understand them, and could then act intelligently, as to their legal rights, in accepting or rejecting the currency.

The subscriber conceives that the Articles of Association, which he has drawn up, and copyrighted, are so nearly perfect, that they will never need any, unless very trivial, alterations. In them he has intended to provide so fully for all exigencies and details, as to supersede the necessity of By-Laws. This object was important, not only for the convenience of the Companies themselves, but because any power, in the holders of Productive Stock, to enact By-Laws, might be used to embarrass the legal rights of the bill holders under the Articles of Association.

Besides, as the holders of Productive Stock are liable to be continually changing, any power, in one set of holders, to establish By-Laws, would be likely to be used to the embarrassment, or even injury, of their successors.

It is obviously important to all parties, that the powers of the Trustees, and the rights of all holders, both of Productive and Circulating Stock, should be legally and precisely fixed by the Articles of Association, so as to be incapable of modification, or interference, by any body of men less than the whole number interested.

LYSANDER SPOONER.

Boston, 1861.

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Some of the legal obstacles, in the way of an evasion of the author’s copyright, will be seen in the following Acts of Congress, and in the subjoined legal authorities as to what constitutes an infringement of copyright.

Act of Congress of 1819, Chap. 19, Sec. 1, authorizes the courts to grant injunctions against infringers.

Act of Congress of 1831, Chap. 16, Sec. 6, provides for the punishment of infringers as follows:—

1. “Such offender shall forfeit every copy of such book to the person legally, at the time, entitled to the copyright thereof.”

Under this clause of the Act infringers would forfeit not merely those copies of their Articles of Association, which they should design to circulate, for the information of other banks and the public, but also those copies which should bear their own signatures, and which alone should constitute them a company. The forfeiture of these latter copies would dissolve the company; because there would then be no legal evidence of the existence of the company.

The company being dissolved, the holders of the currency would have no redress, except by suing the bankers for fraud.

The infringers would also forfeit their records of the transfers of the capital stock of the company; because the forms of transfer were necessarily peculiar, and are separately copyrighted, as well as included in the general copyright of the Articles of Association. By this forfeiture the legal evidence of the ownership of the stock would be lost.

The bills of the banks—that is, those found in the hands of the bankers, or of any other persons who should have taken them knowing of the infringement—would be forfeited; for the bills were necessarily peculiar, and are separately copyrighted.

The same would be true of copies of all the other papers that are separately copyrighted, comprising ten in all.

2. “Such offender * * shall also forfeit and pay fifty cents for every such sheet which may be found in his possession, either printed, or printing, published, or exposed to sale, contrary to the intent of this act, the one moiety thereof to such legal owner of the copyright as aforesaid, and the other to the use of the United States, to be recovered by action of debt in any court having competent jurisdiction thereof.”

Under this clause of the Act, the infringers will be liable to pay fifty cents for each “sheet” of all copies of the Articles of Association, and also for each sheet of the papers separately copyrighted, such as the bills, certificates of stock, transfers, &c., &c. And each separate bill, certificate of stock, or other paper, however small, is a “sheet,” within the meaning of this Act.

The following authorities are given to show what constitutes an infringement, (or “piracy,” as the infringement of a copyright is technically called).

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LEGAL AUTHORITIES RELATIVE TO COPYRIGHT.

1. “Where the adoption and use of the matter of an original author, whose work is under the protection of copyright, is direct and palpable, and nothing new is added but form or dress, or an immaterial change of arrangement, the law will treat the matter as merely colorable, and will stamp it with the character of piracy”—[infringement].—Curtis on Copyright, 188.

2. “Copying is not confined to literal repetition, but includes also the various modes in which the matter of any publication may be adopted, imitated, or transferred, with more or less colorable alterations to disguise the piracy.”—Curtis on Copyright, 253.

3. “Where the resemblance does not amount to identity of parallel passages, the question [of piracy, or infringement] becomes, in substance, this—whether there be such a similitude and conformity between the two books, that the person who wrote the one must have used the other as a model, and must have copied or imitated it? In these cases the piracy is to be detected, through what have been called colorable alteration, and servile imitation.”—Curtis on Copyright, page 256.

4. “If the court can see proof that the defendant had the work of the plaintiff before him, and used it as a model for his own, in copying and imitating it, without drawing from common sources, or common materials, it will hold the resemblances to be not accidental, and not necessary, notwithstanding the alterations and disguises that may have been introduced.”—Curtis on Copyright, page 259.

5. “It is not necessary, to amount to piracy, that one work should be a copy of the other, and not an imitation. There may be a close imitation, so close as to be a mere evasion of the copyright, without being an exact and literal copy.”—Curtis on Copyright, page 259.

6. “The general doctrine of the law is, that none are entitled to save themselves trouble and expense, by availing themselves, for their own profit, of other men’s works, still entitled to the protection of Copyright.”—Curtis on Copyright, page 264.

7. “In the analagous case of patent rights, the subject of an existing and valid patent cannot be taken as the superstructure of an improvement. If the improvement cannot be used, without the subject of an existing grant, the inventor of the improvement must wait until the grant has expired. But he may take out a patent for the improvement by itself, and sell it.”—Curtis on Copyright, page 264, note.

8. Judge Thompson (U. S. Court) said:

“The law was intended to secure to authors the fruits of their skill, labor, and [93] genius, for a limited time; and if, in this instance, the defendant had availed himself of the surveys of the plaintiff in compiling his chart, the plaintiff was entitled to a verdict.”—Blunt vs. Patten, 2 Paine’s Circuit Court Reports, p. 396.

9. Lord Mansfield said:

“The Act that secures copyrights to authors, guards against the piracy of the words and sentiments; but it does not prohibit writing on the same subjects. As in the case of histories and dictionaries.”—Quoted in note to Blunt vs. Patten, 2 Paine’s C. C. R., page 402.

10. In regard to the copyright of a musical composition, Judge Nelson (U. S. Court) said:

“The composition of a new air or melody is entitled to protection; and the appropriation of the whole, or of any substantial part of it, without the license of the author, is a piracy [infringement]. * * If the new air be substantially the same as the old, it is no doubt a piracy. * * The original air requires genius for its construction; but a mere mechanic in music, it is said, can make the adaptation or accompaniment. The musical composition, contemplated by the statute, must doubtless be substantially a new and original work; and not a copy of a piece already produced, with additions and variations, which a writer of music with experience and skill might readily make. Any other construction of the Act would fail to afford the protection intended to the original piece from which the air is appropriated. The new arrangement and adaptation must not be allowed to incorporate such parts and portions of it as may seriously interfere with the right of the author; otherwise the copyright would be worthless.”—Jolie vs. Jaques et al, 1 Blatchford’s Circuit Court Reports, pp. 625-6.—U. S. Digest for 1852,—Title Copyright.*

11. In the case of Folsom et al, vs. Marsh et al, Judge Story said:

“It is certainly not necessary, to constitute an invasion of copyright, that the whole work should be copied, or even a large portion of it, in form or in substance. If so much is taken that the value is sensibly diminished, or the labors of the original author are substantially, to an injurious extent, appropriated by another, that is sufficient in point of law, to constitute a piracy pro tanto. The entirety of the copyright is the property of the author; and it is no defence that another person has appropriated a part, and not the whole, of any property. Neither does it necessarily depend upon the quantity taken, whether it is an infringement of the copyright, or not. It is often affected by the value of the materials taken, and the importance of it to the sale of the original work. Lord Cottenham, in the recent cases of Bramhall vs. Halcomb, (3 Mylne and Craig, 737-738,) and Saunders vs. Smith, (3 Mylne and Craig, R. 711, 736, 737,) adverting to this point, said, ‘When it comes to a question of quantity, it must be [94] very vague. One writer might take all the vital part of another’s book, though it might be but a small portion of the book in quantity. It is not only quantity, but value, that is always looked at. It is useless to refer to any particular cases, as to quantity.’ In short, we must often, in deciding questions of this sort, look to the nature and object of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original works.”—2 Story’s C. C. R. p. 115.—Curtis on Copyright, p. 248, note.

12. Extracts from Judge Story’s opinion in the case of Emerson vs. Davies, 3 Story’s Circuit Court Reports, p. 768.

Head Notes to the Case.

1. “Any new and original plan, arrangement, or combination of materials, will entitle the author to a copyright therein, whether the materials themselves be new or old.”

2. “Whoever by his own skill, labor, and judgment, writes a new work, may have a copyright therein, unless it be directly copied, or evasively imitated from another work.”

4. “To constitute a piracy [infringement] of copyright, it must be shown that the original work has been either substantially copied, or has been so imitated as to be a mere evasion of the copyright.”

Extracts from the Opinion of Story, Judge.

“An author has as much right in his plan, and in his arrangements, and in the combination of his materials, as he has in his thoughts, sentiments, opinions, and in his modes of expressing them. The former, as well as the latter, may be more useful, or less useful, than those of another author; but that, although it may diminish or increase the relative values of their works in the market, is no ground to entitle either to appropriate to himself the labor or skill of the other, as embodied in his own work.” Page 782.

“No person had a right to borrow the same plan, and arrangement, and illustrations, and servilely copy them into any other work.” Page 783.

“If the defendant, Davies, had before him, at the time, the work of the plaintiff, and used it as a model for his own plan, arrangement, examples, and tables, then I should say, following the doctrine of Lord Ellenborough, in Roworth vs. Wilkes, that it was an infringement of the plaintiff’s copyright, notwithstanding the alterations and disguises in the forms of the examples and the unit marks.” Page 792.

“A man has a right to the copyright of a map of a State or country, which he has surveyed, or caused to be compiled from existing materials, at his own expense, or skill, or labor, or money. Another man may publish another map of [95] the same State or country, by using the like means or materials, and the like skill, labor, and expense. But then he had no right to publish a map taken substantially and designedly from the map of the other person, without any such exercise of skill, or labor, or expense. If he copies substantially from the map of the other, it is downright piracy; although it is plain that both maps must, the more accurate they are, approach nearer in design and execution to each other. He, in short, who, by his own skill, judgment, and labor, writes a new work, and does not merely copy that of another, is entitled to a copyright therein; if the variations are not merely formal and shadowy, from existing works.” Page 781.

“In Trusler vs. Murray, (1 East R. p. 362, note,) Lord Kenyon put the point in the same light, and said: ‘The main question here, was, whether, in substance, the one work is a copy and imitation of the other. * * The same doctrine was recognized by the Court of King’s Bench, in Cary vs. Longman & Rees (1 East, p. 358); and it was finally acted on in Mathewson vs. Stockdale (12 Vesey, page 270), and Longman vs. Winchester (16 Vesey, p. 269), and Wilkins vs. Aiken (17 Vesey R., p. 422, 424, 425), in the Court of Chancery. So that, I think, it may be laid down as the clear result of the authorities in cases of this nature, that the true test of piracy [infringement] or not, is to ascertain whether the defendant has, in fact, used the plan, arrangements, and illustrations of the plaintiff, as the model of his own book, with colorable alterations and variations only to disguise the use thereof; or whether his work is the result of his own labor, skill, and use of common materials, and common sources of knowledge, open to all men, and the resemblances are either accidental, or arising from the nature of the subject. In other words, whether the defendant’s book is, quoad hoc, a servile or evasive imitation of the plaintiff’s work, or a bona fide original compilation from other common or independent sources.” Page 793.

“The change of costume of the fencing figures, in the case before Lord Ellenborough, was treated as a mere evasion.” Page 794.

“To amount to an infringement, it is not necessary that there should be a complete copy or imitation in use throughout; but only that there should be an important and valuable portion, which operates injuriously to the copyright of the plaintiff.” Page 795.

He quotes Lord Eldon, as saying:

“If a man mixes what belongs to him with what belongs to me, and the mixture be forbidden by the law, he must again separate them, and he must bear all the mischief and loss which the separation may occasion. If an individual chooses in any work to mix my literary matter with his own, he must be restrained from publishing the literary matter which belongs to me; and if the parts of the work cannot be separated, and if by that means the injunction, which restrained the publication of my literary matter, prevents also the publication of his own literary matter, he has only himself to blame.” Page 796.

“It has been said that, to amount to piracy [infringement] the work must be a copy, and not an imitation. That, as a general proposition, cannot be admitted. It is true the imitation may be very slight and shadowy. But, on the other [96] hand, it may be very close, and so close as to be a mere evasion of the copyright, although not an exact and literal copy.” Page 797.

“If it substantially includes the essential parts of the plaintiff’s plan, of his arrangement, examples, and tables, so as to supersede the work of the plaintiff, it is a violation of his copyright.” Page 797.

13. In the case of Webb, et al, vs. Powers, et al, Judge Woodbury said:

“The leading inquiry then arises, which is decisive of the general equities between these parties, whether the book of the defendant’s taken as a whole, is substantially a copy of the plaintiff’s? whether it has virtually the same plan and character throughout, and is intended to supersede the other in the market with the same class of readers and purchasers, by introducing no considerable new matter, or little or nothing new, except colorable deviations.”—2 Woodbury & Minot’s Circuit Court R., page 514.

[11]

THOMAS DREW vs. JOHN M. CLARK.

ARGUMENT FOR PETITIONER.

The alleged contempt for which the petitioner was condemned consisted in his refusal to be sworn before a committee of the legislature; not in his refusal to answer questions after he had been sworn, but in his refusal to be sworn.

His objection to being sworn did not arise from any conscientious scruples as to taking an oath; nor from any fear of criminating himself; nor from any objection whatever to testifying before a committee of the legislature; nor from any objection to testifying in regard to any subject-matter whatever which the legislature has authority to investigate by compulsory testimony. He concedes fully that, if anybody could be compelled to be sworn in this case, he could be. Nor does he now seek to draw in question the right of the legislature to investigate any subject they please, by merely voluntary testimony. He only questions the extent of their power to investigate by compulsory testimony.

His whole objection to being sworn, in the present case, rested simply upon the fact that it did not appear from any papers furnished to him, nor from any authority or information legally in his possession, that the subject-matter of the investigation was one which the legislature had authority to investigate by compulsory testimony.

We suppose the rule is imperative everywhere, in the judicial tribunals as well as before committees of the legislature, that, before a person can be required to be sworn, he is entitled, if he desires it, to be informed of the subject-matter in regard to which he is to testify, in order that he may judge whether he can take the oath with a conscientious intention to fulfil it. We suppose that no one can be required to swear blindly; that is, that no one can be required to swear to testify, without knowing what he is to testify about. Such a requirement and such an oath would be absurd as well as immoral, because they would involve the taking of an oath which he not only might not conscientiously intend to fulfil, but which he even could not conscientiously fulfil.

[12]

If, then, a person has a right, before he is sworn, to know the subject-matter in regard to which he is to testify, he has the further right to judge, at his peril of course, whether that subject-matter be one in regard to which he can lawfully be compelled to testify. If the subject-matter be one in regard to which he may lawfully be compelled to testify, and he refuses to be sworn, he must take the consequences. But, if the subject-matter be one in regard to which he could not lawfully be compelled to testify, he stands justified in his refusal even to be sworn. He cannot be required to take an oath which he will be under no obligation to fulfil after he has taken it. He cannot be required to swear that he will testify, either fully or partially, in regard to a particular subject-matter, when he cannot lawfully be required to testify to anything at all in regard to it.

If, for example, a man cannot lawfully be required to give the legislature any information at all as to what he and his family usually eat at breakfast, dinner and supper, he cannot lawfully be required to swear that he will give them any such information. It would be manifestly absurd and immoral for them to require him to swear, and for him to swear, that he would give them any such information at all on this subject, when they could not afterwards lawfully require him to fulfil his oath, and when he had no intention of fulfilling it.

To require him to be sworn in such a case is equivalent to requiring him to swear falsely.

The ground taken by the Senate, as all their proceedings show, is, that, in the case just supposed, he could lawfully be required to take the oath that he would give them this information in regard to breakfast, dinner and supper, even though he could not afterwards be required to give it.

The position of the Senate is really this,—that they have a right to compel a man to take as many oaths as they can invent and propound to him, even though they have not the right to compel him to fulfil one of them.

The Senate absurdly require that a man shall first surrender his conscience wholly into their keeping, so far as to take all the oaths they may proffer him. When he has done that,—when he has acknowledged their authority over his conscience to the extent of making him take the oath,—they may then perhaps from choice, or they may be compelled by law, to give back to him his conscience, and say to him, “You may now do as you please about fulfilling these oaths. The law does not require you to fulfil them; but it did require you to take them.”

[13]

Placed in the best possible light, the position of the Senate is this,—that they will compel him to be sworn, while they wholly ignore and postpone the question whether he will be under any obligation to testify after he has been sworn.

The position of the prisoner, on the other hand, is this,—that inasmuch as the subject-matter is, on the face of it, one in regard to which he cannot lawfully be required to give any testimony at all, he cannot lawfully be required to swear that he will give any.

This case may be illustrated by another. Suppose a man were required to be sworn to give testimony in a trial of his wife for murder; and he should object that his being sworn could be of no avail, inasmuch as he could not be required to testify after he had so sworn. Must not the court, before insisting that he be sworn, decide whether he could be required to testify after he has been sworn? And, if they decide that he could not be required to testify, must they not then excuse him from being sworn? Clearly so.

The whole object of the law, in requiring the oath, is to get true and lawful testimony. If the law does not require the testimony, it would be absurd to say that it required the oath.

Where the law does not require a man to give his testimony, it is mere senseless, useless, brutal tyranny to require him to be sworn.

It is just as easy for any tribunal to decide, before a man is sworn, whether he can be required to testify, as it is to decide it afterwards.

Suppose a judicial court should summons a man before them as a witness, and then, instead of requiring him to swear that he will testify to all he knows in the case of John Doe vs. Richard Roe, or the case of the Commonwealth vs. John Smith, should require him to swear that he will testify to all he knows about the Chinese Embassy, the approaching Ecumenical Council, the Alabama claims, the revolution in Spain, the war in Crete, the rebellion in Cuba, the late eruption of Vesuvius, the late earthquakes in South America, and the war in Japan; and suppose he should object that the court had no jurisdiction of those matters, and therefore could not require him to testify to anything at all in regard to them,—would it be the right of the court to say: “We now require you only to swear that you will testify on these subjects; after you shall have done that, we will consider and decide whether we have the further right to compel you to fulfil your oath?” Clearly the court must first decide [14] whether he can be required to testify on those subjects; and if he cannot be required to testify, he cannot be required to swear that he will.

We hold, then, the following propositions to be demonstrated, viz.:—

1. That the law can, in no case whatever, require a man to be sworn until he is legally informed of the subject-matter in regard to which he is to be sworn.

2. That a man cannot lawfully be required to take any oath that he cannot lawfully be required to fulfil.

3. That a man cannot lawfully be compelled to be sworn before any tribunal that has no lawful authority to investigate, by compulsory testimony, the particular subject-matter in regard to which he is to be sworn.

From the preceding propositions it necessarily follows, that, before any person can be compelled to be sworn before a committee of the legislature, he must have legal notice that the subject-matter, in regard to which he is to be sworn, is one which the legislature has a right to investigate by means of compulsory testimony; that it is not competent for the legislature to compel a person to be sworn in a case in which they would have no authority to require him to testify after he was sworn.

In this case, the prisoner claims that he had no legal information that the subject-matter, in regard to which he was required to testify was one which the legislature had any authority to investigate by compulsory testimony. The only legal information he had on this point was a certified copy of the following Order and summons, to wit:—

COMMONWEALTH OF MASSACHUSETTS.

In Senate, February 23, 1869.

Ordered, That the Joint Special Committee to inquire into charges of corruption against corporations, parties and persons, be authorized to send for persons and papers.

Sent down for concurrence.

S. N. Gifford, Clerk.

House of Representatives, February 24, 1869.

Concurred.

W. S. Robinson, Clerk.

[15]

Daniel Needham

Needham, Daniel

April 7, 1869

State House, Boston,

Thomas Drew

Drew, Thomas

State House, Boston,

April 7, 1869

.

To Thomas Drew, of Newton, in the County of Middlesex:—

Pursuant to the above Order you are required to appear before the committee therein mentioned, at the State House in Boston, on Wednesday, the fourteenth day of April current, at nine o’clock, A. M., then and there to give evidence of what you know relating to the subject-matter of said investigation, and also have with you such papers, writings and documents, relating thereto, as may be in your possession.

By order of the Committee,

Daniel Needham, Chairman.

A true copy.

Attest:

John Morissey, Sergeant-at-Arms.

The petitioner claims that this Order, on the face of it, discloses no case which the legislature has a right to investigate by compulsory testimony.

It clearly shows no case that is within the judicial power of the legislature or of either branch of it,—that is to say, it is not a summons to testify in any case where the election or qualifications of a member of the House or Senate is to be settled; it is not a summons to testify in any case of impeachment; it is not a summons to testify in any case of the expulsion or punishment of a member of the House or Senate; it is not a summons to testify in any case of alleged contempt that had previously arisen, and which it was within the judicial power of the House or Senate to try and punish by virtue of the constitution, part second, chapter 1, section 3, articles 10 and 11, which are given in the note.*

[16]

Furthermore, this Order is not a summons to testify in regard to any matters or acts done in any State office or institution, as for example, the offices of the Secretary, Treasurer or Auditor, or the State Prison, the public jails, the lunatic asylum, the State alms-houses, the Reform School, or any other public institution which is under the immediate control of the legislature.

The only remaining question, then, that can arise as to the legality of this Order, is, whether the legislature has power, by means of compulsory testimony, “to inquire into charges of corruption against corporations, parties and persons.”

The petitioner says that these words utterly fail to present any case, in regard to which the legislature can compel any one to testify, either before the legislature itself, or any of its committees.

The words certainly cannot be said to present any criminal case on the part of either “corporations, parties or persons;” for, if by the word “corruption” was meant legal criminality, it is clear that the case—not being within the special judicial power given to the legislature, or either branch of it—could not lawfully be “inquired into” by the legislature, by means of compulsory testimony, but must go before the regular judicial tribunals: and it has the right to go there unembarrassed and unprejudiced by any investigations or disclosures on the part of the legislature.

If, then, it must be admitted that the word “corruption,” as used in this Order, does not mean any legal criminality, it must be conceded to mean only some one or more other kinds of “corruption,” as for example, moral, religious, political, or even physical “corruption.” And inasmuch as it designates no one kind of “corruption,” and designates no particular “corporations, parties or persons” that are suspected of it, the Order is, on the face of it, a mere wild, roving commission to search for anything and everything, physical, moral, religious and political, which the committee may see fit to designate by the term “corruption,” on the part of any and all “corporations,” such as colleges, academies and churches, as well as railroad, banking, insurance, manufacturing and mining “corporations,” and also on the part of any and all “parties and persons,” men, women and children, within the limits of the Commonwealth.

Under this commission, full inquisition, open or secret, could be made into the physical cleanliness or filthiness, the moral purity or impurity, the religious sincerity or hypocrisy, and the religious and political orthodoxy and heterodoxy, of every individual, and every association of individuals, in the Commonwealth.

[17]

No narrower limits than these can be assigned to the investigations of the Committee, if they can act under the Order at all. Don Quixote himself, in the height of his folly, never conceived of an enterprise so absurd and ridiculous as this inugurated by the legislature of Massachusetts, if we are to take this Order as the exponent of their intentions.

Whether the legislature can carry on this illimitable inquiry, by means of merely voluntary testimony, the petitioner is not now concerned to inquire. But that they can carry it on by means of compulsory testimony, he denies. The Senate, on the other hand, insists that the legislature can not only make such inquiry, but also that they can even compel testimony for that purpose. And that is the issue that has been made up between the petitioner and the Senate, and is now before this court.

The constitution (Part II. Chap. 1, Sect. 1, Art. 4,) contains these words:—

“And, further, full power and authority are hereby given and granted to the said General Court, from time to time, to make, ordain and establish, all manner of wholesome and reasonable orders, laws, statutes and ordinances, directions and instructions, either with penalties or without; so as the same be not repugnant or contrary to this Constitution, as they shall judge to be for the good and welfare of this Commonwealth, and for the governing and ordering thereof, and of the subjects of the same, and for the necessary support and defence of the government thereof,” etc., etc.

This legislative power would seem to be as ample as any reasonable body of legislators could desire. At any rate, it is the utmost that the people of Massachusetts have seen fit to give to their legislature; and if the legislature desire more power, they must ask the people to give them more, by an amendment to the constitution, instead of usurping it themselves.

The constitution, having given this liberal power to the legislature in the making of laws, has been explicit in declaring that the enforcement of these laws upon the people, and all questions as to whether these laws have been violated by the people, shall be determined by the judicial tribunals alone, (except in the few cases where special judicial power is given to the legislature, governor and council.)

And the petitioner insists that all that the constitution requires of the people is, that they shall obey these laws, as interpreted, sanctioned and enforced by the judiciary.

But if, in addition to all this power of making laws, and requiring obedience to them on the part of the people, the legislature can [18] institute inquisitions, either open, or (as in this case) secret, into the moral and religious character, either of the people generally, or of particular individuals, and can compel persons to come before these inquisitorial bodies, and tell everything they may know of their neighbors and fellow-citizens, which can be classed under so indefinite and comprehensive a term as “corruption,” the same to be reported and spread abroad, under the sanction of the legislature, to damage the interests, blacken the reputations and destroy the happiness of persons charged with no violation of law, our government is a thoroughly infamous and detestable one,—such an one as no people could ever reasonably be presumed to have consented to, and such as no people ought to tolerate for a moment.

Such a power on the part of the legislature would be ample to open the floodgates of detraction and slander upon any and all whom the suspicion, prejudice, envy or malice of members of the legislature, or of those of whom they were the tools, might seek to destroy. And all this could be done under the protection of their legislative privileges. Both witnesses and legislators would be under this protection, and consequently free of all liability to answer before the judicial tribunals for their crimes.

If such really be the powers of our legislature, it is certain, though not remarkable, that we have never, until now, had a legislature that saw fit to exercise, or even to assert, these infamous powers with which they were intrusted. That these powers should now be asserted and insisted on, to the extent of sending a man to prison for refusing to become a tool of the legislature in this behalf, is, thank God, a phenomenon as rare as it is disgusting.

The petitioner, then, holds it clear that the legislature have no power, at least by means of compulsory testimony, to institute any general inquisition, either open or secret, into the physical, moral, religious and political purity or “corruption” of the people at large in this Commonwealth.

The only remaining question is, whether they have this right in regard to “corporations.”

On this point the petitioner has only this to say, viz.:—

1. That a “corporation” is not a creature of the legislature, in any such sense as would give the legislature any judicial power over it. The legislature cannot possibly get judicial power over it by any bargain or contract for that purpose incorporated in its charter. If it could get this power by a bargain with a number of individuals, granting them privileges on that condition, it could get it over single individuals by the same means. It could get it over [19] every individual to whom they could offer sufficient inducements. And thus the judicial power, which is expressly denied to the legislature by the constitution, might nevertheless be wholly or partially acquired by it by means of contracts with individuals. And to that extent the constitution would be circumvented and nullified.

2. A corporation, as stated by the petitioner before the Senate, is necessarily only a number of citizens, having the same rights, and subject to the same liabilities, as other citizens, with only this difference, viz., that the legislature has granted them, and they have accepted, certain privileges, subject only to specific conditions. Whether they have violated these conditions, and incurred the penalties annexed to such violation, must always be a judicial question, which the legislature can no more try than it can try any other judicial question. And, if the legislature has no power to try any such question, it can compel no one to testify in regard to it.

3. If no violation of law be charged upon a corporation, but the legislature nevertheless contemplates amending or repealing its charter, or making new laws concerning it, in accordance with the discretionary power reserved by Revised Statutes, chap. 68, sect. 41, and desires to have its discretion enlightened as to the needful or appropriate legislation in this behalf, then the petitioner claims that the power thus reserved by the legislature is only the same as, and a part of, that general discretionary power which the legislature first exercised in granting the charter, and such as the legislature has in regard to any and all other subjects of legislation; and that the legislature, therefore, can no more compel a person to enlighten their discretion on the subject of amending or repealing the charters of “corporations,” than it can compel him to enlighten their discretion on any other ordinary subject of legislation. It can certainly have no more power in regard to amending or repealing a charter than it had originally in granting it. And, as it had no power to compel testimony to enlighten their discretion as to granting the charter, it can have no power to compel testimony to enlighten their discretion as to amending or repealing it.

The legislature certainly cannot compel Agassiz to enlighten their discretion as to the legislation necessary or proper in regard to the culture of fish, merely because they propose to legislate upon that subject. Neither can it compel either a scientific or practical agriculturist to enlighten their discretion as to the expediency of a State agricultural college, merely because the legislature contemplate establishing such a college. If the legislature do not feel themselves competent, of their own knowledge, to legislate on the ordinary subjects of legislation, they must enlighten themselves [20] either by such information at other persons may freely and voluntarily give them, or such as can be obtained by offering proper rewards. They certainly cannot adopt the preposterous course of bringing against individuals the loose and indefinite charge of “corruption,” and then, under color of investigating that charge, compel persons to come before them, and enlighten their general ignorance, and thus qualify them for their legislative duties. So infamous a proceeding can no more be resorted to, for the purpose of enlightening their discretion as to any general legislation relating to “corporations,” than it can be to enlighten their discretion as to any general legislation relating to the people at large.

The petitioner has thus presented his case as he claims it must stand on the Order before quoted, for refusing to obey which he was tried, condemned and imprisoned; and as he therefore claims that it must stand before this court, whatever other testimony, of a subsequent nature, may be attempted to be brought into it.

That Order to appear before the Committee, and give evidence of what he knew relating simply to “charges of corruption against corporations, parties and persons,” was the only legal information he had as to the subject-matter in regard to which he was required to be sworn.

On his first arraignment before the Senate, he asked for a certified copy of the other and original Order under which the Committee was appointed, which he informed the Senate he had never seen, and which he supposed might give him further light as to the subject-matter of the investigation, and consequently as to his duty, or not, to be sworn. He also asked for time in which to consult counsel, and ascertain his rights, all of which appears in the copy of his defence, among the papers now submitted to the court.

But less than twenty-four hours’ time was granted him, and during that time no certified copy of the original Order was furnished him; and he never saw a certified copy of it until after he had been tried, condemned and imprisoned.

He therefore claims that that original Order cannot now be brought into the case under any circumstances whatever.

Even if the court should be of opinion that this original Order, under which the Committee was appointed, would have modified or did modify, the powers of the Committee, so as to give them a legal subject-matter of investigation; or, supposing it to have been seen by the petitioner, that it would have given him ample information of a legal subject-matter of investigation, and thus [21] have imposed upon him the duty of being sworn,—still he says that, inasmuch as he had never seen any certified copy of it, he cannot be said to have been legally informed of its contents, or consequently to have been under any obligation at all in regard to it, unless it were simply to request a certified copy of it, which he did, but was refused until it was too late to be used in his defence.

He therefore had no legal information as to the subject-matter of the investigation, except what was contained simply in the supplementary Order, already given, authorizing the Committee to send for persons and papers.

Since he has been in prison, he has been furnished with a certified copy of the original Order for raising the Committee. It is as follows:

COMMONWEALTH OF MASSACHUSETTS.

In Senate, Feb. 23, 1869.

Ordered, That a joint special committee, to consist of five members on the part of the House, with such as the Senate may join, be appointed to inquire if any railroad company, chartered by, and receiving aid from, this Commonwealth, has paid large sums of money, either to aid legislation in their behalf, or suppress legislation adverse to their corporate interests, and that such committee have power to send for persons and papers; and said committee is also further authorized to inquire if any other railroad company, or other corporation chartered here, or if any other party or person has, at any time, used any improper means or influence to aid or to suppress legislation.

It wil be seen that this Order is in very different terms from the one in reference to which the petitioner was tried and condemned. But he nevertheless holds that it is equally futile with the other; that it utterly fails to set forth any legal subject-matter of compulsory investigation; and that it could have been no authority for the Committee to require him to be sworn, even if it had been produced.

This Order, it will be noticed, is in two parts. The first part is in these words:—

“Ordered, That a joint special committee, to consist of five members on the part of the House, with such as the Senate may join, be appointed to inquire if any railroad company, chartered by and receiving aid from this Commonwealth, has paid large sums of money, either to aid legislation in their behalf, or suppress legislation adverse to their corporate interests; and that such committee have power to send for persons and papers.”

[22]

This part of the Order, it will be seen, is not for an inquiry as to whether the money so paid “to aid legislation in their behalf, or suppress legislation adverse to their corporate interests,” was paid for any corrupt purpose, or in any corrupt manner, whatever, but only as to whether it was paid at all.

If money has been paid at all for those purposes, it must certainly be presumed to have been paid honestly, at least until the contrary is either proved, or charged, or ordered to be inquired into.

Now, it is obvious that when a railroad corporation, like the Boston, Hartford and Erie, or the Troy and Greenfield, comes before the legislature to ask them to aid the corporation by the loan of millions of money or credit, it must not only be proper, but indispensably necessary, that they should spend “large sums of money” in collecting and arranging all the data necessary to enable the legislature to act with reasonable discretion in judging whether the loan would be a safe, judicious and proper one. Comprehensive and reliable data must be obtained as to the amount already expended on the road, the probable future cost of the road, the prospective business of the road, its relations to the interest of the Commonwealth, and the security the road can offer for the loan, before the legislature could reasonably be asked to loan a shilling, not to say millions, of the money or credit of the State. Does any one suppose that all these data can be procured and arranged, and properly presented to the legislature, otherwise than by the payment of “large sums of money”? Of course not. The simple fact that the legislature will even seriously entertain the question of making the loan, presupposes that “large sums of money” have been already “paid,” in order to enlighten the discretion of the legislature on the subject.

Since, then, this first part of the Order does not even mention such a thing as an inquiry as to whether “large sums of money” have been paid corruptly, but only as to whether they have been paid, and as it must be presumed, at least until the contrary has been either proved, or charged, or ordered to be inquired into, that the money was paid honestly,—the prisoner holds that this first part of the Order presents no legal subject-matter for investigation by means of compulsory testimony. He holds that he—a person holding no office or employment under any railroad corporation, and holding no stock in any railroad corporation, and consequently not required by its charter to join in any report of its doings to the legislature—might as well be compelled to testify whether, to his knowledge, a railroad company had paid [23] large sums of money for running their road, for locomotives, for cars, for railroad iron, for wood or coal, or as compensation to their employees, as for aiding legislation in their favor. The whole inquiry is, on the face of it, absurd and ridiculous as a subject-matter for compulsory investigation, so long as the Order makes no charge, and directs no inquiry, as to whether the money was corruptly paid.

The same reasons will apply to the case of “large sums of money paid” by any railroad corporation “to suppress (or prevent) legislation adverse to its corporate interests.”

Does the legislature suppose that a railroad corporation, like the “Western” (that was,) or the Boston and Albany (that is now,) is going to sit still, and see the State charter, or lend millions of money or credit to, rival roads, like the Troy and Greenfield, or the Boston, Hartford and Erie, without spending “large sums of money” to protect their “corporate interests” against such “adverse legislation?” And, so long as no charge is made, or inquiry ordered, as to whether this money is paid corruptly, have the legislature any more power to compel a stranger, having no concern in these roads, to testify to what he knows as to these expenditures, than they have to compel him to testify what he knows as to their expenditures for wood, coal, locomotives, railroad iron, or any of the other ordinary and proper expenses of a railroad? Clearly not.

The petitioner, therefore, holds it to be perfectly clear that, so long as the Order makes no charge, and directs no inquiry, as to whether any railroad corporation has expended any of its money corruptly for the purposes named, the Order presents no legal subject-matter for any compulsory testimony on the subject, and especially not for any compulsory testimony from one who is no officer or employee of, or stockholder in, the corporation, and consequently has no duty imposed upon him, by the charter, or other laws of the Commonwealth, in regard to making returns to the legislature as to the doings of the corporation.

But although he conceives it wholly unnecessary for him to do so, the petitioner goes still further, and claims that, even if this Order has made the charge, or directed the inquiry, as to whether money had been paid corruptly, he could not have been compelled to testify on the subject before a committee of the legislature; and for this reason, viz.: If such corrupt payment of money were in the nature of a criminal offence, under the laws of the Commonwealth,—such, for example, as bribing members of the legislature,—then he holds that the act of bribery could not have been done by the corporation in its corporate capacity (for a corporation cannot commit [24] a crime,) but must have been done by individuals in their private capacity; and that he could be compelled to testify in regard to it only before a judicial tribunal. But if, on the other hand, such payment, whether corrupt or not, was not a legal offence under the laws of the Commonwealth, then he holds that he can no more be compelled to testify in regard to such corrupt (but not criminal) payment of money, by a corporation, than he can be compelled to testify as to similar corrupt (but not criminal) payments of money by private persons.

And this is all he feels it necessary to say in regard to the first branch of this Order.

The second branch of this Order is in these words, viz.:—

“And said committee is also further authorized to inquire if any other railroad company, or other corporation chartered here, or if any other party or person, has, at any time, used any improper means or influence to aid or suppress legislation.”

These terms, “improper means or influence,” are certainly very mild ones to be employed in describing any conduct that can be made the subject-matter of any compulsory investigation by the legislature. As the Order gives no definition of what it intends by the words, “any improper means or influence,” the petitioner is compelled to conclude that no violation of law, such as bribery, or illegal voting, is intended; for, if it were, the case could only be tried, either in another form, or before a judicial tribunal, and he could not be compelled to testify elsewhere or otherwise in regard to it.

Assuming, therefore, that no violation of law is directed by this branch of the Order to be inquired into, the petitioner is necessitated to infer that the Order intends only such other “improper means and influences,” as “corporations, parties and persons” may employ “to aid or suppress legislation;” as, for example, such “improper means and influences” (other than criminal) as “corporations, parties and persons” may employ to carry elections, to secure the election of this man who will favor their interests and wishes, and defeat the election of that man who will oppose their interests or wishes; and also such “improper means and influences” (other than criminal) as may be employed to influence members of the legislature in favor of, or against, this law or that, after they are elected.

Placing this construction upon this branch of the Order,—the only construction, he claims, that can reasonably be put upon it,—he [25] insists that it presents no legal subject-matter for any investigation by the Committee; at least by means of compulsory testimony.

From his own special acquaintance with politics and politicians, as well as from that general knowledge on the subject which is open to all, he has no manner of doubt that “improper,” mean, selfish, jealous, tyrannical, ambitious, mercenary, and even malicious motives and influence are rife everywhere in promoting the election of this man, and opposing the election of that; and in this as well as in various other ways, aiding such legislation as individuals and coporations desire, and in suppressing (or preventing) such legislation as they oppose. He has never heard that the ballot-box was certain to purify men of their natural selfishness. On the contrary, the very nature of our institutions opens wide the door to the employment of “improper means and influences” in any and every possible degree short of crime. These means and influences abound in all parties, and with nearly or quite all individuals who have anything to do, either with electing men to the legislature, or with influencing legislation afterwards. So perfectly notorious is all this, that some very sensible persons suppose it to be hardly possible for a man even to touch politics anywhere (by way of participating in them) without being defiled. And, if such persons ever take part in them, they do so only on the principle of choosing the least between two or more enormous evils.

Nobody but a blockhead supposes politics to be pure. There is no reasonable doubt that “improper means and influences to aid or suppress legislation” entered into the election of every member of the present legislature, and have heretofore entered into the election of every member of every other legislature that has ever sat under our State Constitution. And now this (second) branch of this Order purports to authorize this Committee to inquire what “means and influences” of this kind have “at any time,” since the foundation of this government, been brought to bear on legislation!

The matter would be supremely farcical if the Senate had not shown its determination to push this investigation, even to the extent of sending men to prison for refusing to testify.

The whole inquiry is, on the face of it, to the last degree quixotic, absurd and ridiculous, considered as a legal subject-matter, in regard to which the legislature can compel the people to come before their committees, and testify as to their personal knowledge.

For these reasons, the petitioner claims that, even if he had been served with a certified copy of this Order, he would have been under no legal obligation to pay the least attention to it. But, inasmuch as he never saw a certified copy of it until he had [26] been tried, condemned and imprisoned, he claims that the Order itself can have nothing to do with the legality or illegality of his imprisonment, unless to show more fully even, if possible, than had been done before, how utterly baseless, in both law and reason, this whole proceeding against him has been, from first to last.

The petitioner claims that the principles laid down by this court, in the first two paragraphs of their opinion in the case of Burnham vs. Morrissey (14 Gray, 238,) are ample to entitle him to be discharged by this court.

Those paragraphs are in these words, to wit:—

“The House of Representatives is not the final judge of its own powers and privileges in cases in which the rights and liberties of the subject are concerned; but the legality of its action may be examined and determined by this court. That House is not the legislature, but only a part of it, and is therefore subject in its action to the laws, in common with all other bodies, officers and tribunals within the Commonwealth. Especially is it competent and proper for this court to consider whether its proceedings are in conformity with the Constitution and laws, because, living under a written constitution, no branch or department of the government is supreme; and it is the province and duty of the judicial department to determine, in cases regularly brought before them, whether the powers of any branch of the government, and even those of the legislature in the enactment of laws, have been exercised in conformity with the Constitution, and, if they have not been, to treat their acts as null and void.

“The House of Representatives has the power, under the Constitution, to imprison for contempt; but this power is limited to cases expressly provided for by the Constitution, or to cases where the power is necessarily implied from those constitutional functions and duties, to the performance of which it is essential. The power is directly conferred by the Constitution, chap. 1, sect. 3, arts. 10, 11; and the cases there enumerated are the only ones in which a sentence of imprisonment for a term extending beyond the session of the House can be imposed as a punishment.”

The only exception or suggestion he cares to offer, in regard to any portion of that opinion, is in regard to the meaning of certain language used by the court in the fourth paragraph, as follows:—

“The House of Representatives has many duties to perform which necessarily require it to receive evidence, and examine witnesses. . . . It may inquire into the doings of corporations which are subject to the control of the legislature, with a view to modify or repeal their charters. . . . It has often occasion to acquire a certain knowledge of facts, in order to the proper performance of legislative duties.”

[27]

What the court may have intended by this language is not clear. It is evidently mere dicta, not specially relating to the case then before them; for Burnham was a public officer, and the investigation was in regard to his official conduct. Such is not the case here; for the petitioner holds no office whatever.

If, in this language, the court meant to intimate that the legislature might have power to compel a man to come before them, and give them any and all information which he may possess, and which they may think would facilitate the performance of their general “legislative duties,” either in regard to “corporations,” or the people at large, the petitioner wholly objects, for the reasons already given, to any such power being conceded to the legislature.

He thinks the case is one that requires that a clear line should be drawn between those cases in which the legislature have, and those in which they have not, the right to compel testimony.

The petitioner utterly denies that the legislature has any general power to set up any standards whatever as to what is, or is not, “corruption,” or as to what is, or is not, “improper,” on the part of the people of this Commonwealth, otherwise than by enacting laws to be enforced by the judiciary. Until such standards are put into the form of statutes, they must necessarily be unknown and unknowable by the people. They must also necessarily be merely personal ideas in the minds of the members of the legislature, and as such entitled to no authority over, and no consideration or even cognizance by, the people. He also utterly denies the power of the legislature to compel him to become their instrument, to supply them with testimony, to be used by them for the purpose of defaming and injuring the people of the Commonwealth, on account of their not having conformed their conduct in all respects to these unknown and unknowable and merely personal ideas of the members of the legislature, on the infinite and indefinite subjects of purity and “corruption,” of propriety and “impropriety.”

Endnotes

*

In the Articles of Association, as published, the capital is supposed to be mortgages. If United States stocks should be used as capital, the Articles of Association would need to be the same as for mortgages, with but very trivial alterations. If rail-roads were to be used as capital, very considerable alterations would need to be made in the Articles of Association.

†

The fact, that U. S. currency is now below par of specie, does not affect the principle stated in the text. That currency is worth, as all such currency must be worth, as much as the stocks into which it is convertible. The depreciation in the U. S. currency is to be accounted for, therefore, not at all on the ground of superabundance for the uses of commerce, but on one or more of the following grounds, to wit: 1. That the public credit is suffering from the apprehension that the U. S. bonds may never be paid; 2, that the loanable capital of the country is either becoming exhausted, or finds more lucrative investments in business than in U. S. stocks; or, 3, that the burdens imposed upon the use of U. S. stocks as banking capital, are so great as to depreciate the value of the bonds.

*

I do not say that the theory of the courts, as given in the text, is the true theory. I think it is not. I think the true theory is one much more favorable, not only to authors and inventors, but also to the public. But the theory given in the text is the one that prevails in the courts, not only of this country, but of England, and, so far as I know, of most or all other countries in which patents and copyrights are granted. And whether true or false, the theory is likely to prevail, I apprehend, for a long time to come. But I think the true theory is that authors and inventors have the same natural and Common Law right of property, and consequently the same perpetual right of property, in their ideas, the products of their mental labor, that other men have in material things, the products of their manual labor; and that governments have no more right to forbid the sale or use of one of these two kinds of property, than they have to prohibit the sale or use of the other. Under this latter theory, authors and inventors would be stimulated much more than they are now to the production of valuable ideas; and the public would be enlightened and enriched in a proportionally greater degree.

*

It will be seen in a subsequent chapter (the 4th) that the Supreme Court of the United States has expressly declared “that the States have no power, by taxation, or otherwise, to retard, impede, burden, or in any manner control” the use of ideas patented by the United States. And the same principle obviously applied to ideas copyrighted; for ideas copyrighted are intrinsically of the same nature with those patented; and are placed by the Constitution upon the same ground. In the case of Wheaton vs Peters, the Supreme Court of the United States held in argument (though that was not the point to be decided) that a copyright was of the same nature as a patent. (8 Peters’ Rep., pp. 657-8.)

The only difference between patents and copyrights is one of form, and not of substance; and has reference to the mode of securing compensation to the authors of the ideas patented and copyrighted, rather than to the right of the people to use those ideas. In both cases alike, the people have the right to use the ideas, with the consent of the authors. And, on the theory, that now prevails with the courts, (but which, as I have before said, I do not admit to be the true theory,) the people have the right, without the consent of the authors, to use patented and copyrighted ideas in any and every possible way, except in those particular modes that are reserved or granted, as an “exclusive right” to the authors, to compensate them for the ideas themselves.

The obvious constitutional duty of Congress is to secure, for limited times, to both authors and inventors, all “the exclusive rights” to their respective ideas, that can be made practically valuable to them. And such was the obvious intention of Congress in enacting the existing copyright laws; (although such may not, perhaps, be the legal effect of those laws in all possible cases.)

Thus the patent laws secure to the inventor of a machine, and to his assigns, “the exclusive right to make, use, and vend to others to be used,” a machine of that kind, or one embodying any of the original ideas incorporated in it. But the ideas, embodied in the machine, may be written about, and printed, without the consent of the inventor, and used in any possible way, except in making or using a machine; which latter is supposed to be the only way in which the ideas can be made practically valuable to him. The copyright laws, on the other hand, secure to an author and his assigns the sole right of making and selling copies of his book, or any part of it that is original with himself. But other persons may use the ideas, without his consent, in any manner they can, without making or selling a copy of the book, or any part of it; which latter are supposed to be—and in most cases are—the only rights that can be made practically valuable to the author. In some cases, however, as in the case of dramatic compositions, the copyright laws secure to the authors and their assigns, not only the exclusive right of making copies of the pieces, but also the exclusive right of performing them in public.

As the copyright laws of Congress now stand, and are now interpreted by the courts, the ideas embodied in the author’s banking system, could be used, in defiance of his copyright, if it were practically possible for such a banking company to have a legal existence, and carry on the business of banking, without having any Articles of Association similar, in whole or in part, to those he has copyrighted. But as neither of those things would be practically possible, and as he and his assigns have the exclusive right secured to them of making copies, either in whole, or in part, of the Articles of Association, his copyright gives him a legal control over the system.

The system is undoubtedly a legitimate subject of patent; for banking is as much an “art” as is the spinning or weaving of wool or cotton. But the copyright accomplishes all that a patent could; and is, in some respects, preferable.

*

I have before said that I do not believe that the theory of the courts is the true one. But it is the one least favorable to the rights of authors and inventors; and is likely to prevail, for the present at least, if not forever. I think the true theory is, that authors and inventors have the same natural and common law right of property in their ideas, the products of their labor, that other men have in material things, the products of their labor; and that government is as much bound to protect the former as the latter. If this theory were to prevail, authors and inventors could very well afford to have their property in ideas taxed; because their property would not only be protected by the criminal law, but it would be protected in perpetuity, like other property. But now the government virtually says to authors and inventors, “Sell your ideas to the government for such price as the government chooses to pay, or you shall have no protection at all for your rights in them.” Saying this, and having its offer accepted, it clearly cannot, in good faith, tax the price which it has promised to pay.

*

We shall see, in the next section, that the Supreme Court of the United States have expressly said that patent rights cannot be taxed by the States. And if the States cannot tax patent rights, they cannot tax copyrights, for both are of the same nature intrinsically, and both are put upon the same basis by the Constitution. The Supreme Court of the United States has also expressed the opinion that they are of the same nature. (Wheaton et al, vs. Peters et al. 8 Peters’ Reports, 657-8.)

*

In the case of Wheaton et al, vs. Peters et al, the Supreme Court of the United States incidentally expressed the opinion that a copyright was of the same nature as a patent right. (8 Peters’ Reports, pp. 657-8.)

*

Unless it be that, under the “power to pass uniform laws on the subject of bankruptcy,” they can say how much or little of a bankrupt’s effects, shall be sufficient to entitle him to a discharge from his debts.

†

The case where one man promises to pay another what the latter’s labor, for example, shall be worth, leaving the precise amount to be ascertained afterward, is no exception to the principle stated in the text; for, in law, that is certain, which can be made certain. And in the case of all contracts, of the kind mentioned, it is presumed that the value of the labor can be ascertained, or made certain.

Neither is the case, where the particular kind of thing to be paid, is not specially mentioned by the parties, an exception to the principle stated in the text. In such a case the law presumes, on the ground of probability, that it was understood between the parties that coin was to be paid; because that is the thing most commonly agreed by the parties to contracts, to be paid. But that probability can be rebutted, in any particular case, if it can be shown, from any circumstances, such, for example, as previous dealings between the parties, that it was more probably understood between them, at the time of the contract, that payment should be made in something else than coin.

*

It was no doubt the intention that the legal value of the coins, relatively to each other, should correspond precisely with their mercantile value, relatively to each other. But as such might not always happen to be the fact, it would seem that if a contract were made for the delivery of coins of a specific kind, those coins only could be a legal tender in fulfilment of that contract; and that the legal value of the coins could be set up only in cases where the specific coins to be delivered had not been designated by the contract.

By this it is not meant that the particular name or denomination of the coin, as used in the contract, is always necessarily to determine the denomination in which the tender is to be made. As, for example, if a contract were simply for the delivery of “a hundred dollars,” it is not meant that a hundred separate coins, of one dollar each, must be paid; and that ten eagles would not be a legal tender; because ten eagles are “a hundred dollars.” That is, they include a hundred dollars; just as twenty five bushels include a hundred pecks. An eagle is ten dollars; that is, ten dollars consolidated, or united. The law considers a “dollar,” or “unit,” (as the act of Congress expresses it,) to be, not necessarily a separate coin, but a given quantum of gold or silver. And an eagle contains, or consists of, ten of these “dollars,” or “units.” Therefore, if a contract were made simply for “a hundred dollars,” ten eagles would be a tender of the precise number of “dollars,” or “units,” contracted for.

But if a contract were made for “a hundred silver dollars,” then ten gold eagles would probably not be a legal tender in fulfilment of that contract; because the mercantile value of the former might exceed that of the latter; or the promisee might have some special use for the particular coins he had contracted for.

*

Gibbons vs. Ogden, 9 Wheaton, 196.

*

United States vs. Fisher et al. 2 Cranch, 390.

*

This is written in March, 1864.

†

Having considered, in the text, as fully as was intended, the power of Congress in regard to legal tender, it may be necessary to say a few words in regard to the power of the States.

Whatever the powers or duties of the States may be on this subject, Congress have nothing to do with them, and can constitutionally prescribe no rules to the States, beyond what has already been shown in the text.

The Constitution itself forbids the States to “make any thing but gold and silver coin a tender in payment of debts.”

The meaning—or at least one meaning—of this is, that when the parties to a contract have agreed upon coin, as the thing to be paid, the States shall not alter that agreement, and authorize the debtor to cancel his debt with something else than coin.

But the question arises, what is the power of the States in regard to contracts,in which coin is not promised; but in which grain, or some other thing, is the tender agreed upon?

Here plainly the States cannot interfere to alter the tender, even to make it coin; because the States are forbidden to “pass any law impairing the obligation of contracts.”

But if the debtor do not tender the thing agreed on, and tender it too within the time agreed on, the creditor is under no obligation to accept it afterwards. He may then, at his option, either sue for specific performance—that is, to compel the delivery of the identical thing promised; or he may sue, not technically for the debt itself, but for the damage resulting from the non-performance of the contract. This damage, of course, includes not only an amount equal to the debt, but also any other damage the creditor may have sustained from the non-payment of the debt at the time agreed on.

In these suits for damage, it is customary (whether law requires it, or not,) for the creditor to estimate his damages in coin, and to claim that they be paid in coin.

But, technically at least, debt and damage are two different things; and, therefore, there may, perhaps, be a question whether, when the creditor sues in damage, and not in debt, the States are constitutionally required to cause damage to be paid in coin? or whether they may require the creditor to accept other property of the debtor at a fair valuation? This question I will not attempt to settle. The spirit of the constitutional provision, that “No State shall make any thing but gold and silver coin a tender in payment of debts,” would obviously require, as a general rule, that damage, no less than debt, should be paid in coin. And probably the word “debts,” in the provision mentioned, ought to be interpreted to include dues of all kinds. Yet possibly a narrower interpretation may be admitted. And if it may, cases may, possibly, be supposed, where, owing to a dearth of coin, occasioned by war, famine, or other great public calamity, it being practically impossible for a debtor to pay coin, a State would be justified in making other property a tender in payment of damage, even though the Constitution forbids the making it a tender in payment of debt.

But whether a State has any discretion of this kind, or not, Congress certainly have none at all.

*

Even if a promissory note were written, for example, (as I believe some notes are) for “a hundred dollars payable in United States legal tender notes,” that is not, as the makers of such notes seem to suppose, a promise to deliver a hundred legal tender notes for one dollar each, (or their equivalents,) but it is a promise to pay so many legal tender notes as, at their market value, will be equal in value to a hundred dollars in coin. If a man give his note for “a hundred dollars, payable in wheat,” that is not a promise that the wheat shall be delivered at the rate of a bushel for each dollar promised; but it is a promise that so much wheat shall be delivered, at its market value, as shall make the amount paid equal in value to a hundred dollars in coin. So a promissory note for “a hundred dollars, payable in United States legal tender notes,” is, in law, a promise to pay so many notes as, at their market rate, will be equal in value to a hundred dollars in coin. Men may, therefore, well be careful how they write their promissory notes, if they intend to pay them in legal tender notes.

*

Section 15 of the charter is in these words:—“That during the continuance of this Act, and whenever required by the Secretary of the Treasury, the said corporation shall give the necessary facilities for transferring the public funds from place to place, within the United States, or the Territories thereof, and for distributing the same in payment of the public creditors, without charging commissions or claiming allowance on account of difference of exchange, and shall also do and perform the several and respective duties of the Commissioners of loans for the several States, or any one or more of them, whenever required by law.”

*

Introduced April 12.

*

On the point of title, the court say:—“A copyright is given for the contents of a work, not for its mere title. There need be no novelty in that which is but an appendage.”—Page 627.

*

“The House of Representatives shall be the judge of the returns, elections, and qualifications of its own members, as pointed out in the Constitution; shall choose their own speaker, appoint their own officers, and settle the rules and orders of proceeding in their own House. They shall have authority to punish by imprisonment every person, not a member, who shall be guilty of any disrespect to the House by any disorderly or contemptuous behavior in its presence; or who, in the town where the General Court is sitting, and during the time of its sitting, shall threaten to harm the body or estate of any of its members, for anything said or done in the House, or who shall assault any of them therefor; or who shall assault or arrest any witness or other person ordered to attend the House, in his way in going or returning; or who shall rescue any person arrested by order of the House.

“And no member of the House of Representatives shall be arrested or held to bail on mesne process, during his going into, returning from, or his attending, the General Assembly.

“XI. The Senate shall have the same powers in the like cases; and Governor and Council shall have the same authority to punish in like cases; provided that no imprisonment on the warrant or order of the Governor, Council, Senate, or House of Representatives, for either of the above described offences, be for a time exceeding thirty days.

“And the Senate and House of Representatives may try and determine all cases where their rights and privileges are concerned, and which, by the Constitution, they have authority to try and determine, by Committees of their own members, or in such other way as they may respectively think best.”

T.21 A Letter to Charles Sumner (1864).↩

Title

[21.] A Letter to Charles Sumner (n.p., 1864).

- also online </titles/2233>.

Text

A LETTER TO CHARLES SUMNER.

Boston,

Oct. 12, 1864

.

Hon. Charles Sumner,

Sir:

Some four or five weeks ago, as I was in conversation with Dr. S. G. Howe and James M. Stone, they both mentioned that, on their first reading my argument on “the Unconstitutionality of Slavery,” they had been convinced of its truth; and Dr. Howe added, “Sumner always said it was true, but somehow or other he could not think it was practical.”

A few days afterwards I saw Dr. Howe, and repeated to him what I had understood him to say of you, as above, and asked him whether I had understood him correctly. He said that I had; “that is, he had understood you to say, in effect, that you did not see how my argument could be met.” I gave him some of my reasons for wishing his explicit testimony on the point, and he added, “I think I cannot be mistaken about it.” He finally said, “I will put the question distinctly to him tomorrow.”

On the 23d ult. I met him again, and he said that he did put the question to you the next day, in this way: “Mr. Sumner, I have heretofore understood you to say that Mr. Spooner’s position was logical, and that you did not see how it could be answered;” and appealed to you to know whether he had understood you correctly. He said you acknowledged that he had, and that you added that “a judge, who was inclined to decide doubtful questions in favor of liberty, would be obliged to decide that question [of the constitutionality of slavery] in the same way.”

At this last conversation, Francis W. Bird was present, and corroborated Dr. Howe’s statement by saying that you had made a similar statement about my argument to him, at Washington, some few years ago. He added that he said to you, “Why, then, in Heaven’s name, do you not take that position?” And that you made no reply?

In the foregoing account I have given faithfully the substance of their testimony, and very nearly their precise words, as taken down immediately after the last conversation.

I cannot doubt that their statements are true, for I had testimony, nearly as direct and conclusive, to the same point, a dozen years ago, from two or three different sources.

[2]

Since December 1851, you have been under oath, as a Senator, to support the Constitution; and have made the subject of Slavery your principal topic of discussion; and have made, during all that time, the loudest professions of devotion to liberty. Yet during all the same period you have been continually conceding that the constitution recognized the Slaveholder’s right of property in his slaves; that those held in slavery had no rights under the constitution; and that the general government could not interfere for their liberation.

It now appears from the testimony of Dr. Howe and Mr. Bird, that all these concessions against liberty, have been made in violation of your own convictions of truth, and consequently in violation of your official oath; and that while for a dozen years, you have been making the most bombastic pretensions of zeal for freedom, you have really been, all that time, a deliberately perjured traitor to the constitution, to liberty, and to truth.

And this you have been, that you might be a Senator from Massachusetts, rather than remain in private life, and do your part towards educating the people into a knowledge of the true character of the constitution. And having once entered the Senate through the door of perjury, and treason to liberty, you have been obliged to adhere to that position, because, by advocating the truth, you would be convicting yourself of your previous falsehood.

A Senator, who, from such motives, with loud professions of liberty on his lips, falsifies, in behalf of slavery, the constitution of his country, which he has sworn to support, is as base a traitor as any professed soldier of liberty can be, who should, for money, deliver up a post which he had sworn to defend. This treason, it appears, you have been continually guilty of for twelve long years; and your ostentatious professions of zeal for liberty during that time, have, as I think, been made, in great part, with a view to hide the real treason you were committing.

My argument, in its leading features, was published in 1845. And several additions to, and confirmations of it, have been made at intervals since.

If that argument is true, slavery, from its first introduction into this country, to this time, has never had any legal or constitutional existence; but has been a mere abuse, tolerated by the strongest party, without any color of legality, except what was derived from false interpretations of the constitution, and from practices, statutes, and adjudications, that were in plain conflict with the fundamental constitutional law. And these views have been virtually confessed to be true by John C. Calhoun, James M. Mason, Jefferson Davis, and many other Southern men; while such professed advocates of liberty as Charles Sumner, Henry Wilson, William H. Seward, Salmon P. Chase, and the like, have been continually denying them.

Had all those men at the North, who believed these ideas to be true, promulgated them, as it was their plain and obvious duty to do, it is reasonable to suppose that we should long since have had freedom, without shedding one drop of blood; certainly without one tithe of the blood that has now been shed; for the slaveholders would never have dared, in the face of the world, to attempt to [3] overthrow a government that gave freedom to all, for the sake of establishing in its place one that should make slaves of those who, by the existing constitution, were free. But so long as the North, and especially so long as the professed (though hypocritical) advocates of liberty, like those named, conceded the constitutional right of property in slaves, they gave the slaveholders the full benefit of the argument that they were insulted, disturbed, and endangered in the enjoyment of their acknowledged constitutional rights; and that it was therefore necessary to their honor, security, and happiness that they should have a separate government. And this argument, conceded to them by the North, has not only given them strength and union among themselves, but has given them friends, both in the North and among foreign nations; and has cost the nation hundreds of thousands of lives, and thousands of millions of treasure.

Upon yourself, and others like you, professed friends of freedom, who, instead of promulgating what you believed to be the truth, have, for selfish purposes, denied it, and thus conceded to the slaveholders the benefit of an argument to which they had no claim,—upon your heads, more even, if possible, than upon the slaveholders themselves, (who have acted only in accordance with their associations, interests, and avowed principles as slaveholders.) rests the blood of this horrible, unnecessary, and therefore guilty, war.

Your concessions, as to the pro-slavery character of the constitution, have been such as, if true, would prove the constitution unworthy of having one drop of blood shed in its support. They have been such as to withhold from the North all the benefit of the argument, that a war for the constitution was a war for liberty. You have thus, to the extent of your ability, placed the North wholly in the wrong, and the South wholly in the right. And the effect of these false positions in which the North and the South have respectively been placed, not only with your consent, but, in part, by your exertions, has been to fill the land with blood.

The South could, consistently with honor, and probably would, long before this time, and without a conflict, have surrendered their slavery to the demand of the constitution, (if that had been pressed upon them,) and to the moral sentiment of the world; while they could not with honor, or at least certainly would not, surrender anything to a confessedly unconstitutional demand, especially when coming from mere demagogues, who were so openly unprincipled as to profess the greatest moral abhorrence of slavery, and at the same time, for the sake of office, swear to support it, by swearing to support a constitution which they declared to be its bulwark.

You, and others like you have done more, according to your abilities, to prevent the peaceful abolition of slavery, than any other men in the nation; for while honest men were explaining the true character of the constitution, as an instrument giving freedom to all, you were continually denying it, and doing your utmost (and far more than any avowed pro slavery man could do) to defeat their efforts. And it now appears that all this was done by you in violation of your own convictions of truth.

[4]

In your pretended zeal for liberty, you have been urging on the nation to the most frightful destruction of human life; but your love of liberty has never yet induced you to declare publicly, but has permitted you constantly to deny, a truth that was sufficient for, and vital to, the speedy and peaceful accomplishment of freedom. You have, with deliberate purpose, and through a series of years, betrayed the very citadel of liberty, which you were under oath to defend. And there has been, in the country, no other treason at all comparable with this.

That such is the character that history will give you, I have very little doubt. And I wish you to understand that there is one who has long believed such to be your true character, and that he now has the proof of it. And unless you make some denial or explanation of the testimony of Dr. Howe and Mr. Bird, I shall feel at liberty to use it at my discretion.

LYSANDER SPOONER.

T.22 No Treason, No. 1 (1867).↩

Title

[22.] No Treason, No. 1 (Boston: Published by the Author, 1867).

- also online </titles/2195>.

Text

INTRODUCTORY.

The question of treason is distinct from that of slavery; and is the same that it would have been, if free States, instead of slave States, had seceded.

On the part of the North, the war was carried on, not to liberate the slaves, but by a government that had always perverted and violated the Constitution, to keep the slaves in bondage; and was still willing to do so, if the slaveholders could be thereby induced to stay in the Union.

The principle, on which the war was waged by the North, was simply this: That men may rightfully be compelled to submit to, and support, a government that they do not want; and that resistance, on their part, makes them traitors and criminals.

No principle, that is possible to be named, can be more self-evidently false than this; or more self-evidently fatal to all political freedom. Yet it triumphed in the field, and is now assumed to be established. If it be really established, the number of slaves, instead of having been diminished by the war, has been greatly increased; for a man, thus subjected to a government that he does not want, is a slave. And there is no difference, in principle—but only in degree—between political and chattel slavery. The former, no less than the latter, denies a man’s ownership of himself and the products of his labor; and [iv] asserts that other men may own him, and dispose of him and his property, for their uses, and at their pleasure.

Previous to the war, there were some grounds for saying that—in theory, at least, if not in practice—our government was a free one; that it rested on consent. But nothing of that kind can be said now, if the principle on which the war was carried on by the North, is irrevocably established.

If that principle be not the principle of the Constitution, the fact should be known. If it be the principle of the Constitution, the Constitution itself should be at once overthrown.

[5]

NO TREASON.

NO. 1.

I.

Notwithstanding all the proclamations we have made to mankind, within the last ninety years, that our government rested on consent, and that that was the only rightful basis on which any government could rest, the late war has practically demonstrated that our government rests upon force—as much so as any government that ever existed.

The North has thus virtually said to the world: It was all very well to prate of consent, so long as the objects to be accomplished were to liberate ourselves from our connexion with England, and also to coax a scattered and jealous people into a great national union; but now that those purposes have been accomplished, and the power of the North has become consolidated, it is sufficient for us—as for all governments—simply to say: Our power is our right.

In proportion to her wealth and population, the North has probably expended more money and blood to maintain her power over an unwilling people, than any other government ever did. And in her estimation, it is apparently the chief glory of her success, and an adequate compensation for all her own losses, and an ample justification for all her devastation and carnage of the South, that all pretence of any necessity for consent to the perpetuity or power of the government, is (as she thinks) forever expunged from the minds of the people. In short, the North [6] exults beyond measure in the proof she has given, that a government, professedly resting on consent, will expend more life and treasure in crushing dissent, than any government, openly founded on force, has ever done.

And she claims that she has done all this in behalf of liberty! In behalf of free government! In behalf of the principle that government should rest on consent!

If the successors of Roger Williams, within a hundred years after their State had been founded upon the principle of free religious toleration, and when the Baptists had become strong on the credit of that principle, had taken to burning heretics with a fury never before seen among men; and had they finally gloried in having thus suppressed all question of the truth of the State religion; and had they further claimed to have done all this in behalf of freedom of conscience, the inconsistency between profession and conduct would scarcely have been greater than that of the North, in carrying on such a war as she has done, to compel men to live under and support a government that they did not want; and in then claiming that she did it in behalf of the principle that government should rest on consent.

This astonishing absurdity and self-contradiction are to be accounted for only by supposing, either that the lusts of fame, and power, and money, have made her utterly blind to, or utterly reckless of, the inconsistency and enormity of her conduct; or that she has never even understood what was implied in a government’s resting on consent. Perhaps this last explanation is the true one. In charity to human nature, it is to be hoped that it is.

II.

What, then, is implied in a government’s resting on consent?

If it be said that the consent of the strongest party, in a nation, is all that is necessary to justify the establishment of a government that shall have authority over the weaker party, it [7] may be answered that the most despotic governments in the world rest upon that very principle, viz: the consent of the strongest party. These governments are formed simply by the consent or agreement of the strongest party, that they will act in concert in subjecting the weaker party to their dominion. And the despotism, and tyranny, and injustice of these governments consist in that very fact. Or at least that is the first step in their tyranny; a necessary preliminary to all the oppressions that are to follow.

If it be said that the consent of the most numerous party, in a nation, is sufficient to justify the establishment of their power over the less numerous party, it may be answered:

First. That two men have no more natural right to exercise any kind of authority over one, than one has to exercise the same authority over two. A man’s natural rights are his own, against the whole world; and any infringement of them is equally a crime, whether committed by one man, or by millions; whether committed by one man, calling himself a robber, (or by any other name indicating his true character,) or by millions, calling themselves a government.

Second. It would be absurd for the most numerous party to talk of establishing a government over the less numerous party, unless the former were also the strongest, as well as the most numerous; for it is not to be supposed that the strongest party would ever submit to the rule of the weaker party, merely because the latter were the most numerous. And as matter of fact, it is perhaps never that governments are established by the most numerous party. They are usually, if not always, established by the less numerous party; their superior strength consisting in their superior wealth, intelligence, and ability to act in concert.

Third. Our Constitution does not profess to have been established simply by the majority; but by “the people;” the minority, as much as the majority.

[8]

Fourth. If our fathers, in 1776, had acknowledged the principle that a majority had the right to rule the minority, we should never have become a nation; for they were in a small minority, as compared with those who claimed the right to rule over them.

Fifth. Majorities, as such, afford no guarantees for justice. They are men of the same nature as minorities. They have the same passions for fame, power, and money, as minorities; and are liable and likely to be equally—perhaps more than equally, because more boldly—rapacious, tyrannical and unprincipled, if intrusted with power. There is no more reason, then, why a man should either sustain, or submit to, the rule of a majority, than of a minority. Majorities and minorities cannot rightfully be taken at all into account in deciding questions of justice. And all talk about them, in matters of government, is mere absurdity. Men are dunces for uniting to sustain any government, or any laws, except those in which they are all agreed. And nothing but force and fraud compel men to sustain any other. To say that majorities, as such, have a right to rule minorities, is equivalent to saying that minorities have, and ought to have, no rights, except such as majorities please to allow them.

Sixth. It is not improbable that many or most of the worst of governments—although established by force, and by a few, in the first place—come, in time, to be supported by a majority. But if they do, this majority is composed, in large part, of the most ignorant, superstitious, timid, dependent, servile, and corrupt portions of the people; of those who have been over-awed by the power, intelligence, wealth, and arrogance; of those who have been deceived by the frauds; and of those who have been corrupted by the inducements, of the few who really constitute the government. Such majorities, very likely, could be found in half, perhaps in nine-tenths, of all the countries on the globe. What do they prove? Nothing but the tyranny and corruption of the very governments that have reduced so large portions of [9] the people to their present ignorance, servility, degradation, and corruption; an ignorance, servility, degradation, and corruption that are best illustrated in the simple fact that they do sustain the governments that have so oppressed, degraded, and corrupted them. They do nothing towards proving that the governments themselves are legitimate; or that they ought to be sustained, or even endured, by those who understand their true character. The mere fact, therefore, that a government chances to be sustained by a majority, of itself proves nothing that is necessary to be proved, in order to know whether such government should be sustained, or not.

Seventh. The principle that the majority have a right to rule the minority, practically resolves all government into a mere contest between two bodies of men, as to which of them shall be masters, and which of them slaves; a contest, that—however bloody—can, in the nature of things, never be finally closed, so long as man refuses to be a slave.

III.

But to say that the consent of either the strongest party, or the most numerous party, in a nation, is a sufficient justification for the establishment or maintenance of a government that shall control the whole nation, does not obviate the difficulty. The question still remains, how comes such a thing as “a nation” to exist? How do many millions of men, scattered over an extensive territory—each gifted by nature with individual freedom; required by the law of nature to call no man, or body of men, his masters; authorized by that law to seek his own happiness in his own way, to do what he will with himself and his property, so long as he does not trespass upon the equal liberty of others; authorized also, by that law, to defend his own rights, and redress his own wrongs; and to go to the assistance and defence of any [10] of his fellow men who may be suffering any kind of injustice—how do many millions of such men come to be a nation, in the first place? How is it that each of them comes to be stripped of all his natural, God-given rights, and to be incorporated, compressed, compacted, and consolidated into a mass with other men, whom he never saw; with whom he has no contract; and towards many of whom he has no sentiments but fear, hatred, or contempt? How does he become subjected to the control of men like himself, who, by nature, had no authority over him; but who command him to do this, and forbid him to do that, as if they were his sovereigns, and he their subject; and as if their wills and their interests were the only standards of his duties and his rights; and who compel him to submission under peril of confiscation, imprisonment, and death?

Clearly all this is the work of force, or fraud, or both.

By what right, then, did we become “a nation?” By what right do we continue to be “a nation?” And by what right do either the strongest, or the most numerous, party, now existing within the territorial limits, called “The United States,” claim that there really is such “a nation” as the United States? Certainly they are bound to show the rightful existence of “a nation,” before they can claim, on that ground, that they themselves have a right to control it; to seize, for their purposes, so much of every man’s property within it, as they may choose; and, at their discretion, to compel any man to risk his own life, or take the lives of other men, for the maintenance of their power.

To speak of either their numbers, or their strength, is not to the purpose. The question is by what right does the nation exist? And by what right are so many atrocities committed by its authority? or for its preservation?

The answer to this question must certainly be, that at least such a nation exists by no right whatever.

We are, therefore, driven to the acknowledgment that nations and governments, if they can rightfully exist at all, can exist only by consent.

[11]

IV.

The question, then, returns, What is implied in a government’s resting on consent?

Manifestly this one thing (to say nothing of others) is necessarily implied in the idea of a government’s resting on consent, viz: the separate, individual consent of every man who is required to contribute, either by taxation or personal service, to the support of the government. All this, or nothing, is necessarily implied, because one man’s consent is just as necessary as any other man’s. If, for example, A claims that his consent is necessary to the establishment or maintenance of government, he thereby necessarily admits that B’s and every other man’s are equally necessary; because B’s and every other man’s rights are just as good as his own. On the other hand, if he denies that B’s or any other particular man’s consent is necessary, he thereby necessarily admits that neither his own, nor any other man’s is necessary; and that government need not be founded on consent at all.

There is, therefore, no alternative but to say, either that the separate, individual consent of every man, who is required to aid, in any way, in supporting the government, is necessary, or that the consent of no one is necessary.

Clearly this individual consent is indispensable to the idea of treason; for if a man has never consented or agreed to support a government, he breaks no faith in refusing to support it. And if he makes war upon it, he does so as an open enemy, and not as a traitor—that is, as a betrayer, or treacherous friend.

All this, or nothing, was necessarily implied in the Declaration made in 1776. If the necessity for consent, then announced, was a sound principle in favor of three millions of men, it was an equally sound one in favor of three men, or of one man. If the principle was a sound one in behalf of men living on a separate continent, it was an equally sound one in behalf of a man living on a separate farm, or in a separate house.

[12]

Moreover, it was only as separate individuals, each acting for himself, and not as members of organized governments, that the three millions declared their consent to be necessary to their support of a government; and, at the same time, declared their dissent to the support of the British Crown. The governments, then existing in the Colonies, had no constitutional power, as governments, to declare the separation between England and America. On the contrary, those governments, as governments, were organized under charters from, and acknowledged allegiance to, the British Crown. Of course the British king never made it one of the chartered or constitutional powers of those governments, as governments, to absolve the people from their allegiance to himself. So far, therefore, as the Colonial Legislatures acted as revolutionists, they acted only as so many individual revolutionists, and not as constitutional legislatures. And their representatives at Philadelphia, who first declared Independence, were, in the eye of the constitutional law of that day, simply a committee of Revolutionists, and in no sense constitutional authorities, or the representatives of constitutional authorities.

It was also, in the eye of the law, only as separate individuals, each acting for himself, and exercising simply his natural rights as an individual, that the people at large assented to, and ratified the Declaration.

It was also only as so many individuals, each acting for himself, and exercising simply his natural rights, that they revolutionized the constitutional character of their local governments, (so as to exclude the idea of allegiance to Great Britain); changing their forms only as and when their convenience dictated.

The whole Revolution, therefore, as a Revolution, was declared and accomplished by the people, acting separately as individuals, and exercising each his natural rights, and not by their governments in the exercise of their constitutional powers.

It was, therefore, as individuals, and only as individuals, each acting for himself alone, that they declared that their consent—that is, their individual consent, for each one could consent only [13] for himself—was necessary to the creation or perpetuity of any government that they could rightfully be called on to support.

In the same way each declared, for himself, that his own will, pleasure, and discretion were the only authorities he had any occasion to consult, in determining whether he would any longer support the government under which he had always lived. And if this action of each individual were valid and rightful when he had so many other individuals to keep him company, it would have been, in the view of natural justice and right, equally valid and rightful, if he had taken the same step alone. He had the same natural right to take up arms alone to defend his own property against a single tax-gatherer, that he had to take up arms in company with three millions of others, to defend the property of all against an army of tax-gatherers.

Thus the whole Revolution turned upon, asserted, and, in theory, established, the right of each and every man, at his discretion, to release himself from the support of the government under which he had lived. And this principle was asserted, not as a right peculiar to themselves, or to that time, or as applicable only to the government then existing; but as a universal right of all men, at all times, and under all circumstances.

George the Third called our ancestors traitors for what they did at that time. But they were not traitors in fact, whatever he or his laws may have called them. They were not traitors in fact, because they betrayed nobody, and broke faith with nobody. They were his equals, owing him no allegiance, obedience, nor any other duty, except such as they owed to mankind at large. Their political relations with him had been purely voluntary. They had never pledged their faith to him that they would continue these relations any longer than it should please them to do so; and therefore they broke no faith in parting with him. They simply exercised their natural right of saying to him, and to the English people, that they were under no obligation to continue their political connexion with them, and that, for reasons of their own, they chose to dissolve it.

[14]

What was true of our ancestors, is true of revolutionists in general. The monarchs and governments, from whom they choose to separate, attempt to stigmatize them as traitors. But they are not traitors in fact; inasmuch as they betray, and break faith with, no one. Having pledged no faith, they break none. They are simply men, who, for reasons of their own—whether good or bad, wise or unwise, is immaterial—choose to exercise their natural right of dissolving their connexion with the governments under which they have lived. In doing this, they no more commit the crime of treason—which necessarily implies treachery, deceit, breach of faith—than a man commits treason when he chooses to leave a church, or any other voluntary association, with which he has been connected.

This principle was a true one in 1776. It is a true one now. It is the only one on which any rightful government can rest. It is the one on which the Constitution itself professes to rest. If it does not really rest on that basis, it has no right to exist; and it is the duty of every man to raise his hand against it.

If the men of the Revolution designed to incorporate in the Constitution the absurd ideas of allegiance and treason, which they had once repudiated, against which they had fought, and by which the world had been enslaved, they thereby established for themselves an indisputable claim to the disgust and detestation of all mankind.

In subsequent numbers, the author hopes to show that, under the principle of individual consent, the little government that mankind need, is not only practicable, but natural and easy; and that the Constitution of the United States authorizes no government, except one depending wholly on voluntary support.

T.23 No Treason. No II.The Constitution (1867).↩

Title

[23.] No Treason. No II.The Constitution (Boston: Published by the Author, 1867).

- also online </titles/2213>.

Text

NO TREASON.

NO. II.

I.

The Constitution says:

“We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”

The meaning of this is simply: We, the people of the United States, acting freely and voluntarily as individuals, consent and agree that we will coöperate with each other in sustaining such a government as is provided for in this Constitution.

The necessity for the consent of “the people” is implied in this declaration. The whole authority of the Constitution rests upon it. If they did not consent, it was of no validity. Of course it had no validity, except as between those who actually consented. No one’s consent could be presumed against him, without his actual consent being given, any more than in the case of any other contract to pay money, or render service. And to make it binding upon any one, his signature, or other positive evidence of consent, was as necessary as in the case of any other contract. If the instrument meant to say that any of “the people of the United States” would be bound by it, who [4] did not consent, it was a usurpation and a lie. The most that can be inferred from the form, “We, the people,” is, that the instrument offered membership to all “the people of the United States;” leaving it for them to accept or refuse it, at their pleasure.

The agreement is a simple one, like any other agreement. It is the same as one that should say: We, the people of the town of A—, agree to sustain a church, a school, a hospital, or a theatre, for ourselves and our children.

Such an agreement clearly could have no validity, except as between those who actually consented to it. If a portion only of “the people of the town of A—,” should assent to this contract, and should then proceed to compel contributions of money or service from those who had not consented, they would be mere robbers; and would deserve to be treated as such.

Neither the conduct nor the rights of these signers would be improved at all by their saying to the dissenters: We offer you equal rights with ourselves, in the benefits of the church, school, hospital, or theatre, which we propose to establish, and equal voice in the control of it. It would be a sufficient answer for the others to say: We want no share in the benefits, and no voice in the control, of your institution; and will do nothing to support it.

The number who actually consented to the Constitution of the United States, at the first, was very small. Considered as the act of the whole people, the adoption of the Constitution was the merest farce and imposture, binding upon nobody.

The women, children, and blacks, of course, were not asked to give their consent. In addition to this, there were, in nearly or quite all the States, property qualifications that excluded probably one half, two thirds, or perhaps even three fourths, of the white male adults from the right of suffrage. And of those who were allowed that right, we know not how many exercised it.

Furthermore, those who originally agreed to the Constitution, could thereby bind nobody that should come after them. They could contract for nobody but themselves. They had no more [5] natural right or power to make political contracts, binding upon succeeding generations, than they had to make marriage or business contracts binding upon them.

Still further. Even those who actually voted for the adoption of the Constitution, did not pledge their faith for any specific time; since no specific time was named, in the Constitution, during which the association should continue. It was, therefore, merely an association during pleasure; even as between the original parties to it. Still less, if possible, has it been any thing more than a merely voluntary association, during pleasure, between the succeeding generations, who have never gone through, as their fathers did, with so much even as any outward formality of adopting it, or of pledging their faith to support it. Such portions of them as pleased, and as the States permitted to vote, have only done enough, by voting and paying taxes, (and unlawfully and tyrannically extorting taxes from others,) to keep the government in operation for the time being. And this, in the view of the Constitution, they have done voluntarily, and because it was for their interest, or pleasure, and not because they were under any pledge or obligation to do it. Any one man, or any number of men, have had a perfect right, at any time, to refuse his or their further support; and nobody could rightfully object to his or their withdrawal.

There is no escape from these conclusions, if we say that the adoption of the Constitution was the act of the people, as individuals, and not of the States, as States. On the other hand, if we say that the adoption was the act of the States, as States, it necessarily follows that they had the right to secede at pleasure, inasmuch as they engaged for no specific time.

The consent, therefore, that has been given, whether by individuals, or by the States, has been, at most, only a consent for the time being; not an engagement for the future. In truth, in the case of individuals, their actual voting is not to be taken as proof of consent, even for the time being. On the contrary, it is to be considered that, without his consent having ever been asked, a [6] man finds himself environed by a government that he cannot resist; a government that forces him to pay money, render service, and forego the exercise of many of his natural rights, under peril of weighty punishments. He sees, too, that other men practise this tyranny over him by the use of the ballot. He sees further that, if he will but use the ballot himself, he has some chance of relieving himself from this tyranny of others, by subjecting them to his own. In short, he finds himself, without his consent, so situated that, if he use the ballot, he may become a master; if he does not use it, he must become a slave. And he has no other alternative than these two. In self-defence, he attempts the former. His case is analogous to that of a man who has been forced into battle, where he must either kill others, or be killed himself. Because, to save his own life in battle, a man attempts to take the lives of his opponents, it is not to be inferred that the battle is one of his own choosing. Neither in contests with the ballot—which is a mere substitute for a bullet—because, as his only chance of self-preservation, a man uses a ballot, is it to be inferred that the contest is one into which he voluntarily entered; that he voluntarily set up all his own natural rights, as a stake against those of others, to be lost or won by the mere power of numbers. On the contrary, it is to be considered that, in an exigency, into which he had been forced by others, and in which no other means of self-defence offered, he, as a matter of necessity, used the only one that was left to him.

Doubtless the most miserable of men, under the most oppressive government in the world, if allowed the ballot, would use it, if they could see any chance of thereby ameliorating their condition. But it would not therefore be a legitimate inference that the government itself, that crushes them, was one which they had voluntarily set up, or ever consented to.

Therefore a man’s voting under the Constitution of the United States, is not to be taken as evidence that he ever freely assented to the Constitution, even for the time being. Consequently we have no proof that any very large portion, even of the actual [7] voters of the United States, ever really and voluntarily consented to the Constitution, even for the time being. Nor can we ever have such proof, until every man is left perfectly free to consent, or not, without thereby subjecting himself or his property to injury or trespass from others.

II.

The Constitution says:

“Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.”

This is the only definition of treason given by the Constitution, and it is to be interpreted, like all other criminal laws, in the sense most favorable to liberty and justice. Consequently the treason here spoken of, must be held to be treason in fact, and not merely something that may have been falsely called by that name.

To determine, then, what is treason in fact, we are not to look to the codes of Kings, and Czars, and Kaisers, who maintain their power by force and fraud; who contemptuously call mankind their “subjects;” who claim to have a special license from Heaven to rule on earth; who teach that it is a religious duty of mankind to obey them; who bribe a servile and corrupt priesthood to impress these ideas upon the ignorant and superstitious; who spurn the idea that their authority is derived from, or dependent at all upon, the consent of their people; and who attempt to defame, by the false epithet of traitors, all who assert their own rights, and the rights of their fellow men, against such usurpations.

Instead of regarding this false and calumnious meaning of the word treason, we are to look at its true and legitimate meaning in our mother tongue; at its use in common life; and at what would necessarily be its true meaning in any other contracts, or articles [8] of association, which men might voluntarily enter into with each other.

The true and legitimate meaning of the word treason, then, necessarily implies treachery, deceit, breach of faith. Without these, there can be no treason. A traitor is a betrayer—one who practices injury, while professing friendship. Benedict Arnold was a traitor, solely because, while professing friendship for the American cause, he attempted to injure it. An open enemy, however criminal in other respects, is no traitor.

Neither does a man, who has once been my friend, become a traitor by becoming an enemy, if before doing me an injury, he gives me fair warning that he has become an enemy; and if he makes no unfair use of any advantage which my confidence, in the time of our friendship, had placed in his power.

For example, our fathers—even if we were to admit them to have been wrong in other respects—certainly were not traitors in fact, after the fourth of July, 1776; since on that day they gave notice to the King of Great Britain that they repudiated his authority, and should wage war against him. And they made no unfair use of any advantages which his confidence had previously placed in their power.

It cannot be denied that, in the late war, the Southern people proved themselves to be open and avowed enemies, and not treacherous friends. It cannot be denied that they gave us fair warning that they would no longer be our political associates, but would, if need were, fight for a separation. It cannot be alleged that they made any unfair use of advantages which our confidence, in the time of our friendship, had placed in their power. Therefore they were not traitors in fact: and consequently not traitors within the meaning of the Constitution.

Furthermore, men are not traitors in fact, who take up arms against the government, without having disavowed allegiance to it, provided they do it, either to resist the usurpations of the government, or to resist what they sincerely believe to be such usurpations.

[9]

It is a maxim of law that there can be no crime without a criminal intent. And this maxim is as applicable to treason as to any other crime. For example, our fathers were not traitors in fact, for resisting the British Crown, before the fourth of July, 1776—that is, before they had thrown off allegiance to him—provided they honestly believed that they were simply defending their rights against his usurpations. Even if they were mistaken in their law, that mistake, if an innocent one, could not make them traitors in fact.

For the same reason, the Southern people, if they sincerely believed—as it has been extensively, if not generally, conceded, at the North, that they did—in the so-called constitutional theory of “State Rights,” did not become traitors in fact, by acting upon it; and consequently not traitors within the meaning of the Constitution.

III.

The Constitution does not say who will become traitors, by “levying war against the United States, or adhering to their enemies, giving them aid and comfort.”

It is, therefore, only by inference, or reasoning, that we can know who will become traitors by these acts.

Certainly if Englishmen, Frenchmen, Austrians, or Italians, making no professions of support or friendship to the United States, levy war against them, or adhere to their enemies, giving them aid and comfort, they do not thereby make themselves traitors, within the meaning of the Constitution; and why? Solely because they would not be traitors in fact. Making no professions of support or friendship, they would practice no treachery, deceit, or breach of faith. But if they should voluntarily enter either the civil or military service of the United States, and pledge fidelity to them, (without being naturalized,) and should then betray the trusts reposed in them, either by turning their guns against the United States, or by giving aid [10] and comfort to their enemies, they would be traitors in fact; and therefore traitors within the meaning of the Constitution; and could be lawfully punished as such.

There is not, in the Constitution, a syllable that implies that persons, born within the territorial limits of the United States, have allegiance imposed upon them on account of their birth in the country, or that they will be judged by any different rule, on the subject of treason, than persons of foreign birth. And there is no power, in Congress, to add to, or alter, the language of the Constitution, on this point, so as to make it more comprehensive than it now is. Therefore treason in fact—that is, actual treachery, deceit, or breach of faith—must be shown in the case of a native of the United States, equally as in the case of a foreigner, before he can be said to be a traitor.

Congress have seen that the language of the Constitution was insufficient, of itself, to make a man a traitor—on the ground of birth in this country—who levies war against the United States, but practices no treachery, deceit, or breach of faith. They have, therefore—although they had no constitutional power to do so—apparently attempted to enlarge the language of the Constitution on this point. And they have enacted:

“That if any person or persons, owing allegiance to the United States of America, shall levy war against them, or shall adhere to their enemies, giving them aid and comfort, * * * such person or persons shall be adjudged guilty of treason against the United States, and shall suffer death.”—Statute, April 30, 1790, Section 1.

It would be a sufficient answer to this enactment to say that it is utterly unconstitutional, if its effect would be to make any man a traitor, who would not have been one under the language of the Constitution alone.

The whole pith of the act lies in the words, “persons owing allegiance to the United States.” But this language really leaves the question where it was before, for it does not attempt to [11] show or declare who does “owe allegiance to the United States;” although those who passed the act, no doubt thought, or wished others to think, that allegiance was to be presumed (as is done under other governments) against all born in this country, (unless possibly slaves).

The Constitution itself, uses no such word as “allegiance,” “sovereignty,” “loyalty,” “subject,” or any other term, such as is used by other governments, to signify the services, fidelity, obedience, or other duty, which the people are assumed to owe to their government, regardless of their own will in the matter. As the Constitution professes to rest wholly on consent, no one can owe allegiance, service, obedience, or any other duty to it, or to the government created by it, except with his own consent.

The word allegiance comes from the Latin words ad and ligo, signifying to bind to. Thus a man under allegiance to a government, is a man bound to it; or bound to yield it support and fidelity. And governments, founded otherwise than on consent, hold that all persons born under them, are under allegiance to them; that is, are bound to render them support, fidelity, and obedience; and are traitors if they resist them.

But it is obvious that, in truth and in fact, no one but himself can bind any one to support any government. And our Constitution admits this fact when it concedes that it derives its authority wholly from the consent of the people. And the word treason is to be understood in accordance with that idea.

It is conceded that a person of foreign birth comes under allegiance to our government only by special voluntary contract. If a native has allegiance imposed upon him, against his will, he is in a worse condition than the foreigner; for the latter can do as he pleases about assuming that obligation. The accepted interpretation of the Constitution, therefore, makes the foreigner a free person, on this point, while it makes the native a slave.

The only difference—if there be any—between natives and foreigners, in respect of allegiance, is, that a native has a right—offered to him by the Constitution—to come under allegiance to [12] the government, if he so please; and thus entitle himself to membership in the body politic. His allegiance cannot be refused. Whereas a foreigner’s allegiance can be refused, if the government so please.

IV.

The Constitution certainly supposes that the crime of treason can be committed only by man, as an individual. It would be very curious to see a man indicted, convicted, or hanged, otherwise than as an individual; or accused of having committed his treason otherwise than as an individual. And yet it is clearly impossible that any one can be personally guilty of treason, can be a traitor in fact, unless he, as an individual, has in some way voluntarily pledged his faith and fidelity to the government. Certainly no man, or body of men, could pledge it for him, without his consent; and no man, or body of men, have any right to presume it against him, when he has not pledged it himself.

V.

It is plain, therefore, that if, when the Constitution says treason, it means treason—treason in fact, and nothing else—there is no ground at all for pretending that the Southern people have committed that crime. But if, on the other hand, when the Constitution says treason, it means what the Czar and the Kaiser mean by treason, then our government is, in principle, no better than theirs; and has no claim whatever to be considered a free government.

VI.

One essential of a free government is that it rest wholly on voluntary support. And one certain proof that a government is not free, is that it coerces more or less persons to support it, against their will. All governments, the worst on earth, and the [13] most tyrannical on earth, are free governments to that portion of the people who voluntarily support them. And all governments—though the best on earth in other respects—are nevertheless tyrannies to that portion of the people—whether few or many—who are compelled to support them against their will. A government is like a church, or any other institution, in these respects. There is no other criterion whatever, by which to determine whether a government is a free one, or not, than the single one of its depending, or not depending, solely on voluntary support.

VII.

No middle ground is possible on this subject. Either “taxation without consent is robbery,” or it is not. If it is not, then any number of men, who choose, may at any time associate; call themselves a government; assume absolute authority over all weaker than themselves; plunder them at will; and kill them if they resist. If, on the other hand, “taxation without consent is robbery,” it necessarily follows that every man who has not consented to be taxed, has the same natural right to defend his property against a taxgatherer, that he has to defend it against a highwayman.

VIII.

It is perhaps unnecessary to say that the principles of this argument are as applicable to the State governments, as to the national one.

The opinions of the South, on the subjects of allegiance and treason, have been equally erroneous with those of the North. The only difference between them, has been, that the South has held that a man was (primarily) under involuntary allegiance to the State government; while the North held that he was (primarily) under a similar allegiance to the United States government; whereas, in truth, he was under no involuntary allegiance to either.

[14]

IX.

Obviously there can be no law of treason more stringent than has now been stated, consistently with political liberty. In the very nature of things there can never be any liberty for the weaker party, on any other principle; and political liberty always means liberty for the weaker party. It is only the weaker party that is ever oppressed. The strong are always free by virtue of their superior strength. So long as government is a mere contest as to which of two parties shall rule the other, the weaker must always succumb. And whether the contest be carried on with ballots or bullets, the principle is the same; for under the theory of government now prevailing, the ballot either signifies a bullet, or it signifies nothing. And no one can consistently use a ballot, unless he intends to use a bullet, if the latter should be needed to insure submission to the former.

X.

The practical difficulty with our government has been, that most of those who have administered it, have taken it for granted that the Constitution, as it is written, was a thing of no importance; that it neither said what it meant, nor meant what it said; that it was gotten up by swindlers, (as many of its authors doubtless were,) who said a great many good things, which they did not mean, and meant a great many bad things, which they dared not say; that these men, under the false pretence of a government resting on the consent of the whole people, designed to entrap them into a government of a part, who should be powerful and fraudulent enough to cheat the weaker portion out of all the good things that were said, but not meant, and subject them to all the bad things that were meant, but not said. And most of those who have administered the government, have assumed that all these swindling intentions were to be carried into effect, in the place of the written Constitution. Of all these swindles, the [15] treason swindle is the most flagitious. It is the most flagitious, because it is equally flagitious, in principle, with any; and it includes all the others. It is the instrumentality by which all the others are made effective. A government that can at pleasure accuse, shoot, and hang men, as traitors, for the one general offence of refusing to surrender themselves and their property unreservedly to its arbitrary will, can practice any and all special and particular oppressions it pleases.

The result—and a natural one—has been that we have had governments, State and national, devoted to nearly every grade and species of crime that governments have ever practised upon their victims; and these crimes have culminated in a war that has cost a million of lives; a war carried on, upon one side, for chattel slavery, and on the other for political slavery; upon neither for liberty, justice, or truth. And these crimes have been committed, and this war waged, by men, and the descendants of men, who, less than a hundred years ago, said that all men were equal, and could owe neither service to individuals, nor allegiance to governments, except with their own consent.

XI.

No attempt or pretence, that was ever carried into practical operation amongst civilized men—unless possibly the pretence of a “Divine Right,” on the part of some, to govern and enslave others—embodied so much of shameless absurdity, falsehood, impudence, robbery, usurpation, tyranny, and villany of every kind, as the attempt or pretence of establishing a government by consent, and getting the actual consent of only so many as may be necessary to keep the rest in subjection by force. Such a government is a mere conspiracy of the strong against the weak. It no more rests on consent than does the worst government on earth.

What substitute for their consent is offered to the weaker party, whose rights are thus annihilated, struck out of existence, [16] by the stronger? Only this: Their consent is presumed! That is, these usurpers condescendingly and graciously presume that those whom they enslave, consent to surrender their all of life, liberty, and property into the hands of those who thus usurp dominion over them! And it is pretended that this presumption of their consent—when no actual consent has been given—is sufficient to save the rights of the victims, and to justify the usurpers! As well might the highwayman pretend to justify himself by presuming that the traveller consents to part with his money. As well might the assassin justify himself by simply presuming that his victim consents to part with his life. As well might the holder of chattel slaves attempt to justify himself by presuming that they consent to his authority, and to the whips and the robbery which he practises upon them. The presumption is simply a presumption that the weaker party consent to be slaves.

Such is the presumption on which alone our government relies to justify the power it maintains over its unwilling subjects. And it was to establish that presumption as the inexorable and perpetual law of this country, that so much money and blood have been expended.

T.24 Senate-No. 824. Thomas Drew vs. John M. Clark (1869).↩

Title

[24.] Senate-No. 824. Thomas Drew vs. John M. Clark (n.p., 1869).

- also online Shorter Works, vol. 2: </titles/2292#lf1531-02_head_021>

Text

THOMAS DREW vs. JOHN M. CLARK.

ARGUMENT FOR PETITIONER.

The alleged contempt for which the petitioner was condemned consisted in his refusal to be sworn before a committee of the legislature; not in his refusal to answer questions after he had been sworn, but in his refusal to be sworn.

His objection to being sworn did not arise from any conscientious scruples as to taking an oath; nor from any fear of criminating himself; nor from any objection whatever to testifying before a committee of the legislature; nor from any objection to testifying in regard to any subject-matter whatever which the legislature has authority to investigate by compulsory testimony. He concedes fully that, if anybody could be compelled to be sworn in this case, he could be. Nor does he now seek to draw in question the right of the legislature to investigate any subject they please, by merely voluntary testimony. He only questions the extent of their power to investigate by compulsory testimony.

His whole objection to being sworn, in the present case, rested simply upon the fact that it did not appear from any papers furnished to him, nor from any authority or information legally in his possession, that the subject-matter of the investigation was one which the legislature had authority to investigate by compulsory testimony.

We suppose the rule is imperative everywhere, in the judicial tribunals as well as before committees of the legislature, that, before a person can be required to be sworn, he is entitled, if he desires it, to be informed of the subject-matter in regard to which he is to testify, in order that he may judge whether he can take the oath with a conscientious intention to fulfil it. We suppose that no one can be required to swear blindly; that is, that no one can be required to swear to testify, without knowing what he is to testify about. Such a requirement and such an oath would be absurd as well as immoral, because they would involve the taking of an oath which he not only might not conscientiously intend to fulfil, but which he even could not conscientiously fulfil.

[12]

If, then, a person has a right, before he is sworn, to know the subject-matter in regard to which he is to testify, he has the further right to judge, at his peril of course, whether that subject-matter be one in regard to which he can lawfully be compelled to testify. If the subject-matter be one in regard to which he may lawfully be compelled to testify, and he refuses to be sworn, he must take the consequences. But, if the subject-matter be one in regard to which he could not lawfully be compelled to testify, he stands justified in his refusal even to be sworn. He cannot be required to take an oath which he will be under no obligation to fulfil after he has taken it. He cannot be required to swear that he will testify, either fully or partially, in regard to a particular subject-matter, when he cannot lawfully be required to testify to anything at all in regard to it.

If, for example, a man cannot lawfully be required to give the legislature any information at all as to what he and his family usually eat at breakfast, dinner and supper, he cannot lawfully be required to swear that he will give them any such information. It would be manifestly absurd and immoral for them to require him to swear, and for him to swear, that he would give them any such information at all on this subject, when they could not afterwards lawfully require him to fulfil his oath, and when he had no intention of fulfilling it.

To require him to be sworn in such a case is equivalent to requiring him to swear falsely.

The ground taken by the Senate, as all their proceedings show, is, that, in the case just supposed, he could lawfully be required to take the oath that he would give them this information in regard to breakfast, dinner and supper, even though he could not afterwards be required to give it.

The position of the Senate is really this,—that they have a right to compel a man to take as many oaths as they can invent and propound to him, even though they have not the right to compel him to fulfil one of them.

The Senate absurdly require that a man shall first surrender his conscience wholly into their keeping, so far as to take all the oaths they may proffer him. When he has done that,—when he has acknowledged their authority over his conscience to the extent of making him take the oath,—they may then perhaps from choice, or they may be compelled by law, to give back to him his conscience, and say to him, “You may now do as you please about fulfilling these oaths. The law does not require you to fulfil them; but it did require you to take them.”

[13]

Placed in the best possible light, the position of the Senate is this,—that they will compel him to be sworn, while they wholly ignore and postpone the question whether he will be under any obligation to testify after he has been sworn.

The position of the prisoner, on the other hand, is this,—that inasmuch as the subject-matter is, on the face of it, one in regard to which he cannot lawfully be required to give any testimony at all, he cannot lawfully be required to swear that he will give any.

This case may be illustrated by another. Suppose a man were required to be sworn to give testimony in a trial of his wife for murder; and he should object that his being sworn could be of no avail, inasmuch as he could not be required to testify after he had so sworn. Must not the court, before insisting that he be sworn, decide whether he could be required to testify after he has been sworn? And, if they decide that he could not be required to testify, must they not then excuse him from being sworn? Clearly so.

The whole object of the law, in requiring the oath, is to get true and lawful testimony. If the law does not require the testimony, it would be absurd to say that it required the oath.

Where the law does not require a man to give his testimony, it is mere senseless, useless, brutal tyranny to require him to be sworn.

It is just as easy for any tribunal to decide, before a man is sworn, whether he can be required to testify, as it is to decide it afterwards.

Suppose a judicial court should summons a man before them as a witness, and then, instead of requiring him to swear that he will testify to all he knows in the case of John Doe vs. Richard Roe, or the case of the Commonwealth vs. John Smith, should require him to swear that he will testify to all he knows about the Chinese Embassy, the approaching Ecumenical Council, the Alabama claims, the revolution in Spain, the war in Crete, the rebellion in Cuba, the late eruption of Vesuvius, the late earthquakes in South America, and the war in Japan; and suppose he should object that the court had no jurisdiction of those matters, and therefore could not require him to testify to anything at all in regard to them,—would it be the right of the court to say: “We now require you only to swear that you will testify on these subjects; after you shall have done that, we will consider and decide whether we have the further right to compel you to fulfil your oath?” Clearly the court must first decide [14] whether he can be required to testify on those subjects; and if he cannot be required to testify, he cannot be required to swear that he will.

We hold, then, the following propositions to be demonstrated, viz.:—

1. That the law can, in no case whatever, require a man to be sworn until he is legally informed of the subject-matter in regard to which he is to be sworn.

2. That a man cannot lawfully be required to take any oath that he cannot lawfully be required to fulfil.

3. That a man cannot lawfully be compelled to be sworn before any tribunal that has no lawful authority to investigate, by compulsory testimony, the particular subject-matter in regard to which he is to be sworn.

From the preceding propositions it necessarily follows, that, before any person can be compelled to be sworn before a committee of the legislature, he must have legal notice that the subject-matter, in regard to which he is to be sworn, is one which the legislature has a right to investigate by means of compulsory testimony; that it is not competent for the legislature to compel a person to be sworn in a case in which they would have no authority to require him to testify after he was sworn.

In this case, the prisoner claims that he had no legal information that the subject-matter, in regard to which he was required to testify was one which the legislature had any authority to investigate by compulsory testimony. The only legal information he had on this point was a certified copy of the following Order and summons, to wit:—

COMMONWEALTH OF MASSACHUSETTS.

In Senate, February 23, 1869.

Ordered, That the Joint Special Committee to inquire into charges of corruption against corporations, parties and persons, be authorized to send for persons and papers.

Sent down for concurrence.

S. N. Gifford, Clerk.

House of Representatives, February 24, 1869.

Concurred.

W. S. Robinson, Clerk.

[15]

Daniel Needham

Needham, Daniel

April 7, 1869

State House, Boston,

Thomas Drew

Drew, Thomas

State House, Boston,

April 7, 1869

.

To Thomas Drew, of Newton, in the County of Middlesex:—

Pursuant to the above Order you are required to appear before the committee therein mentioned, at the State House in Boston, on Wednesday, the fourteenth day of April current, at nine o’clock, A. M., then and there to give evidence of what you know relating to the subject-matter of said investigation, and also have with you such papers, writings and documents, relating thereto, as may be in your possession.

By order of the Committee,

Daniel Needham, Chairman.

A true copy.

Attest:

John Morissey, Sergeant-at-Arms.

The petitioner claims that this Order, on the face of it, discloses no case which the legislature has a right to investigate by compulsory testimony.

It clearly shows no case that is within the judicial power of the legislature or of either branch of it,—that is to say, it is not a summons to testify in any case where the election or qualifications of a member of the House or Senate is to be settled; it is not a summons to testify in any case of impeachment; it is not a summons to testify in any case of the expulsion or punishment of a member of the House or Senate; it is not a summons to testify in any case of alleged contempt that had previously arisen, and which it was within the judicial power of the House or Senate to try and punish by virtue of the constitution, part second, chapter 1, section 3, articles 10 and 11, which are given in the note.*

[16]

Furthermore, this Order is not a summons to testify in regard to any matters or acts done in any State office or institution, as for example, the offices of the Secretary, Treasurer or Auditor, or the State Prison, the public jails, the lunatic asylum, the State alms-houses, the Reform School, or any other public institution which is under the immediate control of the legislature.

The only remaining question, then, that can arise as to the legality of this Order, is, whether the legislature has power, by means of compulsory testimony, “to inquire into charges of corruption against corporations, parties and persons.”

The petitioner says that these words utterly fail to present any case, in regard to which the legislature can compel any one to testify, either before the legislature itself, or any of its committees.

The words certainly cannot be said to present any criminal case on the part of either “corporations, parties or persons;” for, if by the word “corruption” was meant legal criminality, it is clear that the case—not being within the special judicial power given to the legislature, or either branch of it—could not lawfully be “inquired into” by the legislature, by means of compulsory testimony, but must go before the regular judicial tribunals: and it has the right to go there unembarrassed and unprejudiced by any investigations or disclosures on the part of the legislature.

If, then, it must be admitted that the word “corruption,” as used in this Order, does not mean any legal criminality, it must be conceded to mean only some one or more other kinds of “corruption,” as for example, moral, religious, political, or even physical “corruption.” And inasmuch as it designates no one kind of “corruption,” and designates no particular “corporations, parties or persons” that are suspected of it, the Order is, on the face of it, a mere wild, roving commission to search for anything and everything, physical, moral, religious and political, which the committee may see fit to designate by the term “corruption,” on the part of any and all “corporations,” such as colleges, academies and churches, as well as railroad, banking, insurance, manufacturing and mining “corporations,” and also on the part of any and all “parties and persons,” men, women and children, within the limits of the Commonwealth.

Under this commission, full inquisition, open or secret, could be made into the physical cleanliness or filthiness, the moral purity or impurity, the religious sincerity or hypocrisy, and the religious and political orthodoxy and heterodoxy, of every individual, and every association of individuals, in the Commonwealth.

[17]

No narrower limits than these can be assigned to the investigations of the Committee, if they can act under the Order at all. Don Quixote himself, in the height of his folly, never conceived of an enterprise so absurd and ridiculous as this inugurated by the legislature of Massachusetts, if we are to take this Order as the exponent of their intentions.

Whether the legislature can carry on this illimitable inquiry, by means of merely voluntary testimony, the petitioner is not now concerned to inquire. But that they can carry it on by means of compulsory testimony, he denies. The Senate, on the other hand, insists that the legislature can not only make such inquiry, but also that they can even compel testimony for that purpose. And that is the issue that has been made up between the petitioner and the Senate, and is now before this court.

The constitution (Part II. Chap. 1, Sect. 1, Art. 4,) contains these words:—

“And, further, full power and authority are hereby given and granted to the said General Court, from time to time, to make, ordain and establish, all manner of wholesome and reasonable orders, laws, statutes and ordinances, directions and instructions, either with penalties or without; so as the same be not repugnant or contrary to this Constitution, as they shall judge to be for the good and welfare of this Commonwealth, and for the governing and ordering thereof, and of the subjects of the same, and for the necessary support and defence of the government thereof,” etc., etc.

This legislative power would seem to be as ample as any reasonable body of legislators could desire. At any rate, it is the utmost that the people of Massachusetts have seen fit to give to their legislature; and if the legislature desire more power, they must ask the people to give them more, by an amendment to the constitution, instead of usurping it themselves.

The constitution, having given this liberal power to the legislature in the making of laws, has been explicit in declaring that the enforcement of these laws upon the people, and all questions as to whether these laws have been violated by the people, shall be determined by the judicial tribunals alone, (except in the few cases where special judicial power is given to the legislature, governor and council.)

And the petitioner insists that all that the constitution requires of the people is, that they shall obey these laws, as interpreted, sanctioned and enforced by the judiciary.

But if, in addition to all this power of making laws, and requiring obedience to them on the part of the people, the legislature can [18] institute inquisitions, either open, or (as in this case) secret, into the moral and religious character, either of the people generally, or of particular individuals, and can compel persons to come before these inquisitorial bodies, and tell everything they may know of their neighbors and fellow-citizens, which can be classed under so indefinite and comprehensive a term as “corruption,” the same to be reported and spread abroad, under the sanction of the legislature, to damage the interests, blacken the reputations and destroy the happiness of persons charged with no violation of law, our government is a thoroughly infamous and detestable one,—such an one as no people could ever reasonably be presumed to have consented to, and such as no people ought to tolerate for a moment.

Such a power on the part of the legislature would be ample to open the floodgates of detraction and slander upon any and all whom the suspicion, prejudice, envy or malice of members of the legislature, or of those of whom they were the tools, might seek to destroy. And all this could be done under the protection of their legislative privileges. Both witnesses and legislators would be under this protection, and consequently free of all liability to answer before the judicial tribunals for their crimes.

If such really be the powers of our legislature, it is certain, though not remarkable, that we have never, until now, had a legislature that saw fit to exercise, or even to assert, these infamous powers with which they were intrusted. That these powers should now be asserted and insisted on, to the extent of sending a man to prison for refusing to become a tool of the legislature in this behalf, is, thank God, a phenomenon as rare as it is disgusting.

The petitioner, then, holds it clear that the legislature have no power, at least by means of compulsory testimony, to institute any general inquisition, either open or secret, into the physical, moral, religious and political purity or “corruption” of the people at large in this Commonwealth.

The only remaining question is, whether they have this right in regard to “corporations.”

On this point the petitioner has only this to say, viz.:—

1. That a “corporation” is not a creature of the legislature, in any such sense as would give the legislature any judicial power over it. The legislature cannot possibly get judicial power over it by any bargain or contract for that purpose incorporated in its charter. If it could get this power by a bargain with a number of individuals, granting them privileges on that condition, it could get it over single individuals by the same means. It could get it over [19] every individual to whom they could offer sufficient inducements. And thus the judicial power, which is expressly denied to the legislature by the constitution, might nevertheless be wholly or partially acquired by it by means of contracts with individuals. And to that extent the constitution would be circumvented and nullified.

2. A corporation, as stated by the petitioner before the Senate, is necessarily only a number of citizens, having the same rights, and subject to the same liabilities, as other citizens, with only this difference, viz., that the legislature has granted them, and they have accepted, certain privileges, subject only to specific conditions. Whether they have violated these conditions, and incurred the penalties annexed to such violation, must always be a judicial question, which the legislature can no more try than it can try any other judicial question. And, if the legislature has no power to try any such question, it can compel no one to testify in regard to it.

3. If no violation of law be charged upon a corporation, but the legislature nevertheless contemplates amending or repealing its charter, or making new laws concerning it, in accordance with the discretionary power reserved by Revised Statutes, chap. 68, sect. 41, and desires to have its discretion enlightened as to the needful or appropriate legislation in this behalf, then the petitioner claims that the power thus reserved by the legislature is only the same as, and a part of, that general discretionary power which the legislature first exercised in granting the charter, and such as the legislature has in regard to any and all other subjects of legislation; and that the legislature, therefore, can no more compel a person to enlighten their discretion on the subject of amending or repealing the charters of “corporations,” than it can compel him to enlighten their discretion on any other ordinary subject of legislation. It can certainly have no more power in regard to amending or repealing a charter than it had originally in granting it. And, as it had no power to compel testimony to enlighten their discretion as to granting the charter, it can have no power to compel testimony to enlighten their discretion as to amending or repealing it.

The legislature certainly cannot compel Agassiz to enlighten their discretion as to the legislation necessary or proper in regard to the culture of fish, merely because they propose to legislate upon that subject. Neither can it compel either a scientific or practical agriculturist to enlighten their discretion as to the expediency of a State agricultural college, merely because the legislature contemplate establishing such a college. If the legislature do not feel themselves competent, of their own knowledge, to legislate on the ordinary subjects of legislation, they must enlighten themselves [20] either by such information at other persons may freely and voluntarily give them, or such as can be obtained by offering proper rewards. They certainly cannot adopt the preposterous course of bringing against individuals the loose and indefinite charge of “corruption,” and then, under color of investigating that charge, compel persons to come before them, and enlighten their general ignorance, and thus qualify them for their legislative duties. So infamous a proceeding can no more be resorted to, for the purpose of enlightening their discretion as to any general legislation relating to “corporations,” than it can be to enlighten their discretion as to any general legislation relating to the people at large.

The petitioner has thus presented his case as he claims it must stand on the Order before quoted, for refusing to obey which he was tried, condemned and imprisoned; and as he therefore claims that it must stand before this court, whatever other testimony, of a subsequent nature, may be attempted to be brought into it.

That Order to appear before the Committee, and give evidence of what he knew relating simply to “charges of corruption against corporations, parties and persons,” was the only legal information he had as to the subject-matter in regard to which he was required to be sworn.

On his first arraignment before the Senate, he asked for a certified copy of the other and original Order under which the Committee was appointed, which he informed the Senate he had never seen, and which he supposed might give him further light as to the subject-matter of the investigation, and consequently as to his duty, or not, to be sworn. He also asked for time in which to consult counsel, and ascertain his rights, all of which appears in the copy of his defence, among the papers now submitted to the court.

But less than twenty-four hours’ time was granted him, and during that time no certified copy of the original Order was furnished him; and he never saw a certified copy of it until after he had been tried, condemned and imprisoned.

He therefore claims that that original Order cannot now be brought into the case under any circumstances whatever.

Even if the court should be of opinion that this original Order, under which the Committee was appointed, would have modified or did modify, the powers of the Committee, so as to give them a legal subject-matter of investigation; or, supposing it to have been seen by the petitioner, that it would have given him ample information of a legal subject-matter of investigation, and thus [21] have imposed upon him the duty of being sworn,—still he says that, inasmuch as he had never seen any certified copy of it, he cannot be said to have been legally informed of its contents, or consequently to have been under any obligation at all in regard to it, unless it were simply to request a certified copy of it, which he did, but was refused until it was too late to be used in his defence.

He therefore had no legal information as to the subject-matter of the investigation, except what was contained simply in the supplementary Order, already given, authorizing the Committee to send for persons and papers.

Since he has been in prison, he has been furnished with a certified copy of the original Order for raising the Committee. It is as follows:

COMMONWEALTH OF MASSACHUSETTS.

In Senate, Feb. 23, 1869.

Ordered, That a joint special committee, to consist of five members on the part of the House, with such as the Senate may join, be appointed to inquire if any railroad company, chartered by, and receiving aid from, this Commonwealth, has paid large sums of money, either to aid legislation in their behalf, or suppress legislation adverse to their corporate interests, and that such committee have power to send for persons and papers; and said committee is also further authorized to inquire if any other railroad company, or other corporation chartered here, or if any other party or person has, at any time, used any improper means or influence to aid or to suppress legislation.

It wil be seen that this Order is in very different terms from the one in reference to which the petitioner was tried and condemned. But he nevertheless holds that it is equally futile with the other; that it utterly fails to set forth any legal subject-matter of compulsory investigation; and that it could have been no authority for the Committee to require him to be sworn, even if it had been produced.

This Order, it will be noticed, is in two parts. The first part is in these words:—

“Ordered, That a joint special committee, to consist of five members on the part of the House, with such as the Senate may join, be appointed to inquire if any railroad company, chartered by and receiving aid from this Commonwealth, has paid large sums of money, either to aid legislation in their behalf, or suppress legislation adverse to their corporate interests; and that such committee have power to send for persons and papers.”

[22]

This part of the Order, it will be seen, is not for an inquiry as to whether the money so paid “to aid legislation in their behalf, or suppress legislation adverse to their corporate interests,” was paid for any corrupt purpose, or in any corrupt manner, whatever, but only as to whether it was paid at all.

If money has been paid at all for those purposes, it must certainly be presumed to have been paid honestly, at least until the contrary is either proved, or charged, or ordered to be inquired into.

Now, it is obvious that when a railroad corporation, like the Boston, Hartford and Erie, or the Troy and Greenfield, comes before the legislature to ask them to aid the corporation by the loan of millions of money or credit, it must not only be proper, but indispensably necessary, that they should spend “large sums of money” in collecting and arranging all the data necessary to enable the legislature to act with reasonable discretion in judging whether the loan would be a safe, judicious and proper one. Comprehensive and reliable data must be obtained as to the amount already expended on the road, the probable future cost of the road, the prospective business of the road, its relations to the interest of the Commonwealth, and the security the road can offer for the loan, before the legislature could reasonably be asked to loan a shilling, not to say millions, of the money or credit of the State. Does any one suppose that all these data can be procured and arranged, and properly presented to the legislature, otherwise than by the payment of “large sums of money”? Of course not. The simple fact that the legislature will even seriously entertain the question of making the loan, presupposes that “large sums of money” have been already “paid,” in order to enlighten the discretion of the legislature on the subject.

Since, then, this first part of the Order does not even mention such a thing as an inquiry as to whether “large sums of money” have been paid corruptly, but only as to whether they have been paid, and as it must be presumed, at least until the contrary has been either proved, or charged, or ordered to be inquired into, that the money was paid honestly,—the prisoner holds that this first part of the Order presents no legal subject-matter for investigation by means of compulsory testimony. He holds that he—a person holding no office or employment under any railroad corporation, and holding no stock in any railroad corporation, and consequently not required by its charter to join in any report of its doings to the legislature—might as well be compelled to testify whether, to his knowledge, a railroad company had paid [23] large sums of money for running their road, for locomotives, for cars, for railroad iron, for wood or coal, or as compensation to their employees, as for aiding legislation in their favor. The whole inquiry is, on the face of it, absurd and ridiculous as a subject-matter for compulsory investigation, so long as the Order makes no charge, and directs no inquiry, as to whether the money was corruptly paid.

The same reasons will apply to the case of “large sums of money paid” by any railroad corporation “to suppress (or prevent) legislation adverse to its corporate interests.”

Does the legislature suppose that a railroad corporation, like the “Western” (that was,) or the Boston and Albany (that is now,) is going to sit still, and see the State charter, or lend millions of money or credit to, rival roads, like the Troy and Greenfield, or the Boston, Hartford and Erie, without spending “large sums of money” to protect their “corporate interests” against such “adverse legislation?” And, so long as no charge is made, or inquiry ordered, as to whether this money is paid corruptly, have the legislature any more power to compel a stranger, having no concern in these roads, to testify to what he knows as to these expenditures, than they have to compel him to testify what he knows as to their expenditures for wood, coal, locomotives, railroad iron, or any of the other ordinary and proper expenses of a railroad? Clearly not.

The petitioner, therefore, holds it to be perfectly clear that, so long as the Order makes no charge, and directs no inquiry, as to whether any railroad corporation has expended any of its money corruptly for the purposes named, the Order presents no legal subject-matter for any compulsory testimony on the subject, and especially not for any compulsory testimony from one who is no officer or employee of, or stockholder in, the corporation, and consequently has no duty imposed upon him, by the charter, or other laws of the Commonwealth, in regard to making returns to the legislature as to the doings of the corporation.

But although he conceives it wholly unnecessary for him to do so, the petitioner goes still further, and claims that, even if this Order has made the charge, or directed the inquiry, as to whether money had been paid corruptly, he could not have been compelled to testify on the subject before a committee of the legislature; and for this reason, viz.: If such corrupt payment of money were in the nature of a criminal offence, under the laws of the Commonwealth,—such, for example, as bribing members of the legislature,—then he holds that the act of bribery could not have been done by the corporation in its corporate capacity (for a corporation cannot commit [24] a crime,) but must have been done by individuals in their private capacity; and that he could be compelled to testify in regard to it only before a judicial tribunal. But if, on the other hand, such payment, whether corrupt or not, was not a legal offence under the laws of the Commonwealth, then he holds that he can no more be compelled to testify in regard to such corrupt (but not criminal) payment of money, by a corporation, than he can be compelled to testify as to similar corrupt (but not criminal) payments of money by private persons.

And this is all he feels it necessary to say in regard to the first branch of this Order.

The second branch of this Order is in these words, viz.:—

“And said committee is also further authorized to inquire if any other railroad company, or other corporation chartered here, or if any other party or person, has, at any time, used any improper means or influence to aid or suppress legislation.”

These terms, “improper means or influence,” are certainly very mild ones to be employed in describing any conduct that can be made the subject-matter of any compulsory investigation by the legislature. As the Order gives no definition of what it intends by the words, “any improper means or influence,” the petitioner is compelled to conclude that no violation of law, such as bribery, or illegal voting, is intended; for, if it were, the case could only be tried, either in another form, or before a judicial tribunal, and he could not be compelled to testify elsewhere or otherwise in regard to it.

Assuming, therefore, that no violation of law is directed by this branch of the Order to be inquired into, the petitioner is necessitated to infer that the Order intends only such other “improper means and influences,” as “corporations, parties and persons” may employ “to aid or suppress legislation;” as, for example, such “improper means and influences” (other than criminal) as “corporations, parties and persons” may employ to carry elections, to secure the election of this man who will favor their interests and wishes, and defeat the election of that man who will oppose their interests or wishes; and also such “improper means and influences” (other than criminal) as may be employed to influence members of the legislature in favor of, or against, this law or that, after they are elected.

Placing this construction upon this branch of the Order,—the only construction, he claims, that can reasonably be put upon it,—he [25] insists that it presents no legal subject-matter for any investigation by the Committee; at least by means of compulsory testimony.

From his own special acquaintance with politics and politicians, as well as from that general knowledge on the subject which is open to all, he has no manner of doubt that “improper,” mean, selfish, jealous, tyrannical, ambitious, mercenary, and even malicious motives and influence are rife everywhere in promoting the election of this man, and opposing the election of that; and in this as well as in various other ways, aiding such legislation as individuals and coporations desire, and in suppressing (or preventing) such legislation as they oppose. He has never heard that the ballot-box was certain to purify men of their natural selfishness. On the contrary, the very nature of our institutions opens wide the door to the employment of “improper means and influences” in any and every possible degree short of crime. These means and influences abound in all parties, and with nearly or quite all individuals who have anything to do, either with electing men to the legislature, or with influencing legislation afterwards. So perfectly notorious is all this, that some very sensible persons suppose it to be hardly possible for a man even to touch politics anywhere (by way of participating in them) without being defiled. And, if such persons ever take part in them, they do so only on the principle of choosing the least between two or more enormous evils.

Nobody but a blockhead supposes politics to be pure. There is no reasonable doubt that “improper means and influences to aid or suppress legislation” entered into the election of every member of the present legislature, and have heretofore entered into the election of every member of every other legislature that has ever sat under our State Constitution. And now this (second) branch of this Order purports to authorize this Committee to inquire what “means and influences” of this kind have “at any time,” since the foundation of this government, been brought to bear on legislation!

The matter would be supremely farcical if the Senate had not shown its determination to push this investigation, even to the extent of sending men to prison for refusing to testify.

The whole inquiry is, on the face of it, to the last degree quixotic, absurd and ridiculous, considered as a legal subject-matter, in regard to which the legislature can compel the people to come before their committees, and testify as to their personal knowledge.

For these reasons, the petitioner claims that, even if he had been served with a certified copy of this Order, he would have been under no legal obligation to pay the least attention to it. But, inasmuch as he never saw a certified copy of it until he had [26] been tried, condemned and imprisoned, he claims that the Order itself can have nothing to do with the legality or illegality of his imprisonment, unless to show more fully even, if possible, than had been done before, how utterly baseless, in both law and reason, this whole proceeding against him has been, from first to last.

The petitioner claims that the principles laid down by this court, in the first two paragraphs of their opinion in the case of Burnham vs. Morrissey (14 Gray, 238,) are ample to entitle him to be discharged by this court.

Those paragraphs are in these words, to wit:—

“The House of Representatives is not the final judge of its own powers and privileges in cases in which the rights and liberties of the subject are concerned; but the legality of its action may be examined and determined by this court. That House is not the legislature, but only a part of it, and is therefore subject in its action to the laws, in common with all other bodies, officers and tribunals within the Commonwealth. Especially is it competent and proper for this court to consider whether its proceedings are in conformity with the Constitution and laws, because, living under a written constitution, no branch or department of the government is supreme; and it is the province and duty of the judicial department to determine, in cases regularly brought before them, whether the powers of any branch of the government, and even those of the legislature in the enactment of laws, have been exercised in conformity with the Constitution, and, if they have not been, to treat their acts as null and void.

“The House of Representatives has the power, under the Constitution, to imprison for contempt; but this power is limited to cases expressly provided for by the Constitution, or to cases where the power is necessarily implied from those constitutional functions and duties, to the performance of which it is essential. The power is directly conferred by the Constitution, chap. 1, sect. 3, arts. 10, 11; and the cases there enumerated are the only ones in which a sentence of imprisonment for a term extending beyond the session of the House can be imposed as a punishment.”

The only exception or suggestion he cares to offer, in regard to any portion of that opinion, is in regard to the meaning of certain language used by the court in the fourth paragraph, as follows:—

“The House of Representatives has many duties to perform which necessarily require it to receive evidence, and examine witnesses. . . . It may inquire into the doings of corporations which are subject to the control of the legislature, with a view to modify or repeal their charters. . . . It has often occasion to acquire a certain knowledge of facts, in order to the proper performance of legislative duties.”

[27]

What the court may have intended by this language is not clear. It is evidently mere dicta, not specially relating to the case then before them; for Burnham was a public officer, and the investigation was in regard to his official conduct. Such is not the case here; for the petitioner holds no office whatever.

If, in this language, the court meant to intimate that the legislature might have power to compel a man to come before them, and give them any and all information which he may possess, and which they may think would facilitate the performance of their general “legislative duties,” either in regard to “corporations,” or the people at large, the petitioner wholly objects, for the reasons already given, to any such power being conceded to the legislature.

He thinks the case is one that requires that a clear line should be drawn between those cases in which the legislature have, and those in which they have not, the right to compel testimony.

The petitioner utterly denies that the legislature has any general power to set up any standards whatever as to what is, or is not, “corruption,” or as to what is, or is not, “improper,” on the part of the people of this Commonwealth, otherwise than by enacting laws to be enforced by the judiciary. Until such standards are put into the form of statutes, they must necessarily be unknown and unknowable by the people. They must also necessarily be merely personal ideas in the minds of the members of the legislature, and as such entitled to no authority over, and no consideration or even cognizance by, the people. He also utterly denies the power of the legislature to compel him to become their instrument, to supply them with testimony, to be used by them for the purpose of defaming and injuring the people of the Commonwealth, on account of their not having conformed their conduct in all respects to these unknown and unknowable and merely personal ideas of the members of the legislature, on the infinite and indefinite subjects of purity and “corruption,” of propriety and “impropriety.”

Endnotes

*

“The House of Representatives shall be the judge of the returns, elections, and qualifications of its own members, as pointed out in the Constitution; shall choose their own speaker, appoint their own officers, and settle the rules and orders of proceeding in their own House. They shall have authority to punish by imprisonment every person, not a member, who shall be guilty of any disrespect to the House by any disorderly or contemptuous behavior in its presence; or who, in the town where the General Court is sitting, and during the time of its sitting, shall threaten to harm the body or estate of any of its members, for anything said or done in the House, or who shall assault any of them therefor; or who shall assault or arrest any witness or other person ordered to attend the House, in his way in going or returning; or who shall rescue any person arrested by order of the House.

“And no member of the House of Representatives shall be arrested or held to bail on mesne process, during his going into, returning from, or his attending, the General Assembly.

“XI. The Senate shall have the same powers in the like cases; and Governor and Council shall have the same authority to punish in like cases; provided that no imprisonment on the warrant or order of the Governor, Council, Senate, or House of Representatives, for either of the above described offences, be for a time exceeding thirty days.

“And the Senate and House of Representatives may try and determine all cases where their rights and privileges are concerned, and which, by the Constitution, they have authority to try and determine, by Committees of their own members, or in such other way as they may respectively think best.”

T.25 No Treason. No VI. The Constitution of No Authority (1870).↩

Title

[25.] No Treason. No VI. The Constitution of No Authority (Boston: Published by the Author, 1870).

- also online </titles/2194>.

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The first and second numbers of this series were published in 1867. For reasons not necessary to be explained, the sixth is now published in advance of the third, fourth and fifth.

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NO TREASON.

NO. VI.

THE CONSTITUTION OF NO AUTHORITY.

I.

The Constitution has no inherent authority or obligation. It has no authority or obligation at all, unless as a contract between man and man. And it does not so much as even purport to be a contract between persons now existing. It purports, at most, to be only a contract between persons living eighty years ago. And it can be supposed to have been a contract then only between persons who had already come to years of discretion, so as to be competent to make reasonable and obligatory contracts. Furthermore, we know, historically, that only a small portion even of the people then existing were consulted on the subject, or asked, or permitted to express either their consent or dissent in any formal manner. Those persons, if any, who did give their consent formally, are all dead now. Most of them have been dead forty, fifty, sixty, or seventy years. And the Constitution, so far as it was their contract, died with them. They had no natural power or right to make it obligatory upon their children. It is not only plainly impossible, in the nature of things, that they could bind their posterity, but they did not even attempt to bind them. That is to say, the instrument does not purport to be an agreement between any body but “the people” then existing; nor does it, either expressly [4] or impliedly, assert any right, power, or disposition, on their part, to bind any body but themselves. Let us see. Its language is:

“We, the people of the United States [that is, the people then existing in the United States], in order to form a more perfect union, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”

It is plain, in the first place, that this language, as an agreement, purports to be only what it at most really was, viz: a contract between the people then existing; and, of necessity, binding, as a contract, only upon those then existing. In the second place, the language neither expresses nor implies that they had any intention or desire, nor that they imagined they had any right or power, to bind their “posterity” to live under it. It does not say that their “posterity” will, shall, or must live under it. It only says, in effect, that their hopes and motives in adopting it were that it might prove useful to their posterity, as well as to themselves, by promoting their union, safety, tranquillity, liberty, etc.

Suppose an agreement were entered into, in this form:

We, the people of Boston, agree to maintain a fort on Governor’s Island, to protect ourselves and our posterity against invasion.

This agreement, as an agreement, would clearly bind nobody but the people then existing. Secondly, it would assert no right, power, or disposition, on their part, to compel their “posterity” to maintain such a fort. It would only indicate that the supposed welfare of their posterity was one of the motives that induced the original parties to enter into the agreement.

When a man says he is building a house for himself and his posterity, he does not mean to be understood as saying that he has any thought of binding them, nor is it to be inferred that he [5] is so foolish as to imagine that he has any right or power to bind them, to live in it. So far as they are concerned, he only means to be understood as saying that his hopes and motives, in building it, are that they, or at least some of them, may find it for their happiness to live in it.

So when a man says he is planting a tree for himself and his posterity, he does not mean to be understood as saying that he has any thought of compelling them, nor is it to be inferred that he is such a simpleton as to imagine that he has any right or power to compel them, to eat the fruit. So far as they are concerned, he only means to say that his hopes and motives, in planting the tree, are that its fruit may be agreeable to them.

So it was with those who originally adopted the Constitution. Whatever may have been their personal intentions, the legal meaning of their language, so far as their “posterity” was concerned, simply was, that their hopes and motives, in entering into the agreement, were that it might prove useful and acceptable to their posterity; that it might promote their union, safety, tranquillity, and welfare; and that it might tend “to secure to them the blessings of liberty.” The language does not assert nor at all imply, any right, power, or disposition, on the part of the original parties to the agreement, to compel their “posterity” to live under it. If they had intended to bind their posterity to live under it, they should have said that their object was, not “to secure to them the blessings of liberty,” but to make slaves of them; for if their “posterity” are bound to live under it, they are nothing less than the slaves of their foolish, tyrannical, and dead grandfathers.

It cannot be said that the Constitution formed “the people of the United States,” for all time, into a corporation. It does not speak of “the people” as a corporation, but as individuals. A corporation does not describe itself as “we,” nor as “people,” nor as “ourselves.” Nor does a corporation, in legal language, [6] have any “posterity.” It supposes itself to have, and speaks of itself as having, perpetual existence, as a single individuality.

Moreover, no body of men, existing at any one time, have the power to create a perpetual corporation. A corporation can become practically perpetual only by the voluntary accession of new members, as the old ones die off. But for this voluntary accession of new members, the corporation necessarily dies with the death of those who originally composed it.

Legally speaking, therefore, there is, in the Constitution, nothing that professes or attempts to bind the “posterity” of those who establish it.

If, then, those who established the Constitution, had no power to bind, and did not attempt to bind, their posterity, the question arises, whether their posterity have bound themselves? If they have done so, they can have done so in only one or both of these two ways, viz. by voting, and paying taxes.

II.

Let us consider these two matters, voting and tax paying, separately. And first of voting.

All the voting that has ever taken place under the Constitution, has been of such a kind that it not only did not pledge the whole people to support the Constitution, but it did not even pledge any one of them to do so, as the following considerations show.

1. In the very nature of things, the act of voting could bind nobody but the actual voters. But owing to the property qualifications required, it is probable that, during the first twenty or thirty years under the Constitution, not more than one tenth, fifteenth, or perhaps twentieth of the whole population (black and white, men, women, and minors) were permitted to vote. Consequently, so far as voting was concerned, not more than one tenth, fifteenth, or twentieth of those then existing, could have incurred any obligation to support the Constitution.

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At the present time, it is probable that not more than one sixth of the whole population are permitted to vote. Consequently, so far as voting is concerned, the other five-sixths can have given no pledge that they will support the Constitution.

2. Of the one-sixth that are permitted to vote, probably not more than two-thirds (about one-ninth of the whole population) have usually voted. Many never vote at all. Many vote only once in two, three, five, or ten years, in periods of great excitement.

No one, by voting, can be said to pledge himself for any longer period than that for which he votes. If, for example, I vote for an officer who is to hold his office for only a year, I cannot be said to have thereby pledged myself to support the government beyond that term. Therefore, on the ground of actual voting, it probably cannot be said that more than one-ninth, or one-eighth, of the whole population are usually under any pledge to support the Constitution.

3. It cannot be said that, by voting, a man pledges himself to support the Constitution, unless the act of voting be a perfectly voluntary one on his part. Yet the act of voting cannot properly be called a voluntary one on the part of any very large number of those who do vote. It is rather a measure of necessity imposed upon them by others, than one of their own choice. On this point I repeat what was said in a former number,* viz:

“In truth, in the case of individuals, their actual voting is not to be taken as proof of consent, even for the time being. On the contrary, it is to be considered that, without his consent having even been asked a man finds himself environed by a government that he cannot resist; a government that forces him to pay money, render service, and forego the exercise of many of his natural rights, under peril of weighty punishments. He sees, too, that other men practise this tyranny over him by the use of the ballot. He sees further, that, if he will but use the ballot [8] himself, he has some chance of relieving himself from this tyranny of others, by subjecting them to his own. In short, he finds himself, without his consent, so situated that, if he use the ballot, he may become a master; if he does not use it, he must become a slave. And he has no other alternative than these two. In self-defence, he attempts the former. His case is analogous to that of a man who has been forced into battle, where he must either kill others, or be killed himself. Because, to save his own life in battle, a man attempts to take the lives of his opponents, it is not to be inferred that the battle is one of his own choosing. Neither in contests with the ballot—which is a mere substitute for a bullet—because, as his only chance of self-preservation, a man uses a ballot, is it to be inferred that the contest is one into which he voluntarily entered; that he voluntarily set up all his own natural rights, as a stake against those of others, to be lost or won by the mere power of numbers. On the contrary, it is to be considered that, in an exigency into which he had been forced by others, and in which no other means of self-defence offered, he, as a matter of necessity, used the only one that was left to him.

“Doubtless the most miserable of men, under the most oppressive government in the world, if allowed the ballot, would use it, if they could see any chance of thereby meliorating their condition. But it would not, therefore, be a legitimate inference that the government itself, that crushes them, was one which they had voluntarily set up, or ever consented to.

“Therefore, a man’s voting under the Constitution of the United States, is not to be taken as evidence that he ever freely assented to the Constitution, even for the time being. Consequently we have no proof that any very large portion, even of the actual voters of the United States, ever really and voluntarily consented to the Constitution, even for the time being. Nor can we ever have such proof, until every man is left perfectly free to consent, or not, without thereby subjecting himself or his property to be disturbed or injured by others.”

As we can have no legal knowledge as to who votes from choice, and who from the necessity thus forced upon him, we can have no legal knowledge, as to any particular individual, that he voted from choice; or, consequently, that by voting, he consented, or pledged himself, to support the government. Legally [9] speaking, therefore, the act of voting utterly fails to pledge any one to support the government. It utterly fails to prove that the government rests upon the voluntary support of any body. On general principles of law and reason, it cannot be said that the government has any voluntary supporters at all, until it can be distinctly shown who its voluntary supporters are.

4. As taxation is made compulsory on all, whether they vote or not, a large proportion of those who vote, no doubt do so to prevent their own money being used against themselves; when, in fact, they would have gladly abstained from voting, if they could thereby have saved themselves from taxation alone, to say nothing of being saved from all the other usurpations and tyrannies of the government. To take a man’s property without his consent, and then to infer his consent because he attempts, by voting, to prevent that property from being used to his injury, is a very insufficient proof of his consent to support the Constitution. It is, in fact, no proof at all. And as we can have no legal knowledge as to who the particular individuals are, if there are any, who are willing to be taxed for the sake of voting, or who would prefer freedom from taxation to the privilege of voting, we can have no legal knowledge that any particular individual consents to be taxed for the sake of voting; or, consequently, consents to support the Constitution.

5. At nearly all elections, votes are given for various candidates for the same office. Those who vote for the unsuccessful candidates cannot properly be said to have voted to sustain the Constitution. They may, with more reason, be supposed to have voted, not to support the Constitution, but specially to prevent the tyranny which they anticipate the successful candidate intends to practise upon them under color of the Constitution; and therefore may reasonably be supposed to have voted against the Constitution itself. This supposition is the more reasonable, inasmuch as such voting is the only mode allowed to them of expressing their dissent to the Constitution.

[10]

6. Many votes are usually given for candidates who have no prospect of success. Those who give such votes may reasonably be supposed to have voted as they did, with a special intention, not to support, but to obstruct the execution of, the Constitution; and, therefore, against the Constitution itself.

7. As all the different votes are given secretly (by secret ballot), there is no legal means of knowing, from the votes themselves, who votes for, and who against, the Constitution. Therefore voting affords no legal evidence that any particular individual supports the Constitution. And where there can be no legal evidence that any particular individual supports the Constitution, it cannot legally be said that anybody supports it. It is clearly impossible to have any legal proof of the intentions of large numbers of men, where there can be no legal proof of the intentions of any particular one of them.

8. There being no legal proof of any man’s intentions, in voting, we can only conjecture them. As a conjecture, it is probable that a very large proportion of those who vote, do so on this principle, viz., that if, by voting, they could but get the government into their own hands (or that of their friends), and use its powers against their opponents, they would then willingly support the Constitution; but if their opponents are to have the power, and use it against them, then they would not willingly support the Constitution.

In short, men’s voluntary support of the Constitution is doubtless, in most cases, wholly contingent upon the question whether, by means of the Constitution, they can make themselves masters, or are to be made slaves.

Such contingent consent as that is, in law and reason, no consent at all.

9. As every body who supports the Constitution by voting (if there are any such) does so secretly (by secret ballot), and in a way to avoid all personal responsibility for the acts of his agents or representatives, it cannot legally or reasonably be [11] said that anybody at all supports the Constitution by voting. No man can reasonably or legally be said to do such a thing as to assent to, or support, the Constitution, unless he does it openly, and in a way to make himself personally responsible for the acts of his agents, so long as they act within the limits of the power he delegates to them.

10. As all voting is secret, (by secret ballot,) and as all secret governments are necessarily only secret bands of robbers, tyrants, and murderers, the general fact that our government is practically carried on by means of such voting, only proves that there is among us a secret band of robbers, tyrants and murderers, whose purpose is to rob, enslave, and, so far as necessary to accomplish their purposes, murder, the rest of the people. The simple fact of the existence of such a band does nothing towards proving that “the people of the United States,” or any one of them, voluntarily supports the Constitution.

For all the reasons that have now been given, voting furnishes no legal evidence as to who the particular individuals are (if there are any), who voluntarily support the Constitution. It therefore furnishes no legal evidence that any body supports it voluntarily.

So far, therefore, as voting is concerned, the Constitution, legally speaking, has no supporters at all.

And, as matter of fact, there is not the slightest probability that the Constitution has a single bona fide supporter in the country. That is to say, there is not the slightest probability that there is a single man in the country, who both understands what the Constitution really is, and sincerely supports it for what it really is.

The ostensible supporters of the Constitution, like the ostensible supporters of most other governments, are made up of three classes, viz.: 1. Knaves, a numerous and active class, who see in the government an instrument which they can use for their own aggrandizement or wealth. 2. Dupes—a large class, no [12] doubt—each of whom, because he is allowed one voice out of millions in deciding what he may do with his own person and his own property, and because he is permitted to have the same voice in robbing, enslaving, and murdering others, that others have in robbing, enslaving, and murdering himself, is stupid enough to imagine that he is a “free man,” a “sovereign”; that this is “a free government”; “a government of equal rights,” “the best government on earth,”* and such like absurdities. 3. A class who have some appreciation of the evils of government, but either do not see how to get rid of them, or do not choose to so far sacrifice their private interests as to give themselves seriously and earnestly to the work of making a change.

III.

The payment of taxes, being compulsory, of course furnishes no evidence that any one voluntarily supports the Constitution.

It is true that the theory of our Constitution is, that all taxes are paid voluntarily; that our government is a mutual insurance company, voluntarily entered into by the people with each other; that each man makes a free and purely voluntary contract with all others who are parties to the Constitution, to pay so much money for so much protection, the same as he does with any other insurance company; and that he is just as free not to be protected, and not to pay any tax, as he is to pay a tax, and be protected.

But this theory of our government is wholly different from the practical fact. The fact is that the government, like a highwayman, says to a man: Your money, or your life. And many, if not most, taxes are paid under the compulsion of that threat.

The government does not, indeed, waylay a man in a lonely place, spring upon him from the road side, and, holding a pistol [13] to his head, proceed to rifle his pockets. But the robbery is none the less a robbery on that account; and it is far more dastardly and shameful.

The highwayman takes solely upon himself the responsibility, danger, and crime of his own act. He does not pretend that he has any rightful claim to your money, or that he intends to use it for your own benefit. He does not pretend to be anything but a robber. He has not acquired impudence enough to profess to be merely a “protector,” and that he takes men’s money against their will, merely to enable him to “protect” those infatuated travellers, who feel perfectly able to protect themselves, or do not appreciate his peculiar system of protection. He is too sensible a man to make such professions as these. Furthermore, having taken your money, he leaves you, as you wish him to do. He does not persist in following you on the road, against your will; assuming to be your rightful “sovereign,” on account of the “protection” he affords you. He does not keep “protecting” you, by commanding you to bow down and serve him; by requiring you to do this, and forbidding you to do that; by robbing you of more money as often as he finds it for his interest or pleasure to do so; and by branding you as a rebel, a traitor, and an enemy to your country, and shooting you down without mercy, if you dispute his authority, or resist his demands. He is too much of a gentleman to be guilty of such impostures, and insults, and villanies as these. In short, he does not, in addition to robbing you, attempt to make you either his dupe or his slave.

The proceedings of those robbers and murderers, who call themselves “the government,” are directly the opposite of these of the single highwayman.

In the first place, they do not, like him, make themselves individually known; or, consequently, take upon themselves personally the responsibility of their acts. On the contrary, they secretly (by secret ballot) designate some one of their number [14] to commit the robbery in their behalf, while they keep themselves practically concealed. They say to the person thus designated:

Go to A— B—, and say to him that “the government” has need of money to meet the expenses of protecting him and his property. If he presumes to say that he has never contracted with us to protect him, and that he wants none of our protection, say to him that that is our business, and not his; that we choose to protect him, whether he desires us to do so or not; and that we demand pay, too, for protecting him. If he dares to inquire who the individuals are, who have thus taken upon themselves the title of “the government,” and who assume to protect him, and demand payment of him, without his having ever made any contract with them, say to him that that, too, is our business, and not his; that we do not choose to make ourselves individually known to him; that we have secretly (by secret ballot) appointed you our agent to give him notice of our demands, and, if he complies with them, to give him, in our name, a receipt that will protect him against any similar demand for the present year. If he refuses to comply, seize and sell enough of his property to pay not only our demands, but all your own expenses and trouble beside. If he resists the seizure of his property, call upon the bystanders to help you (doubtless some of them will prove to be members of our band). If, in defending his property, he should kill any of our band who are assisting you, capture him at all hazards; charge him (in one of our courts) with murder, convict him, and hang him. If he should call upon his neighbors, or any others who, like him, may be disposed to resist our demands, and they should come in large numbers to his assistance, cry out that they are all rebels and traitors; that “our country” is in danger; call upon the commander of our hired murderers; tell him to quell the rebellion and “save the country,” cost what it may. Tell him to kill all who resist, though they should be hundreds of thousands; [15] and thus strike terror into all others similarly disposed. See that the work of murder is thoroughly done, that we may have no further trouble of this kind hereafter. When these traitors shall have thus been taught our strength and our determination, they will be good loyal citizens for many years, and pay their taxes without a why or a wherefore.

It is under such compulsion as this that taxes, so called, are paid. And how much proof the payment of taxes affords, that the people consent to support “the government,” it needs no further argument to show.

2. Still another reason why the payment of taxes implies no consent, or pledge, to support the government, is that the tax payer does not know, and has no means of knowing, who the particular individuals are who compose “the government.” To him “the government” is a myth, an abstraction, an incorporeality, with which he can make no contract, and to which he can give no consent, and make no pledge. He knows it only through its pretended agents. “The government” itself he never sees. He knows indeed, by common report, that certain persons, of a certain age, are permitted to vote; and thus to make themselves parts of, or (if they choose) opponents of, the government, for the time being. But who of them do thus vote, and especially how each one votes (whether so as to aid or oppose the government), he does not know; the voting being all done secretly (by secret ballot). Who, therefore, practically compose “the government,” for the time being, he has no means of knowing. Of course he can make no contract with them, give them no consent, and make them no pledge. Of necessity, therefore, his paying taxes to them implies, on his part, no contract, consent, or pledge to support them—that is, to support “the government,” or the Constitution.

3. Not knowing who the particular individuals are, who call themselves “the government,” the tax payer does not know whom he pays his taxes to. All he knows is that a man comes to [16] him, representing himself to be the agent of “the government”—that is, the agent of a secret band of robbers and murderers, who have taken to themselves the title of “the government,” and have determined to kill every body who refuses to give them whatever money they demand. To save his life, he gives up his money to this agent. But as this agent does not make his principals individually known to the tax payer, the latter, after he has given up his money, knows no more who are “the government”—that is, who were the robbers—than he did before. To say, therefore, that by giving up his money to their agent, he entered into a voluntary contract with them, that he pledges himself to obey them, to support them, and to give them whatever money they should demand of him in the future, is simply ridiculous.

4. All political power, as it is called, rests practically upon this matter of money. Any number of scoundrels, having money enough to start with, can establish themselves as a “government;” because, with money, they can hire soldiers, and with soldiers extort more money; and also compel general obedience to their will. It is with government, as Cæsar said it was in war, that money and soldiers mutually supported each other; that with money he could hire soldiers, and with soldiers extort money. So these villains, who call themselves governments, well understand that their power rests primarily upon money. With money they can hire soldiers, and with soldiers extort money. And, when their authority is denied, the first use they always make of money, is to hire soldiers to kill or subdue all who refuse them more money.

For this reason, whoever desires liberty, should understand these vital facts, viz.: 1. That every man who puts money into the hands of a “government” (so called), puts into its hands a sword which will be used against himself, to extort more money from him, and also to keep him in subjection to its arbitrary will. 2. That those who will take his money, without his consent, [17] in the first place, will use it for his further robbery and enslavement, if he presumes to resist their demands in the future. 3. That it is a perfect absurdity to suppose that any body of men would ever take a man’s money without his consent, for any such object as they profess to take it for, viz., that of protecting him; for why should they wish to protect him, if he does not wish them to do so? To suppose that they would do so, is just as absurd as it would be to suppose that they would take his money without his consent, for the purpose of buying food or clothing for him, when he did not want it. 4. If a man wants “protection,” he is competent to make his own bargains for it; and nobody has any occasion to rob him, in order to “protect” him against his will. 5. That the only security men can have for their political liberty, consists in their keeping their money in their own pockets, until they have assurances, perfectly satisfactory to themselves, that it will be used as they wish it to be used, for their benefit, and not for their injury. 6. That no government, so called, can reasonably be trusted for a moment, or reasonably be supposed to have honest purposes in view, any longer than it depends wholly upon voluntary support.

These facts are all so vital and so self-evident, that it cannot reasonably be supposed that any one will voluntarily pay money to a “government,” for the purpose of securing its protection, unless he first makes an explicit and purely voluntary contract with it for that purpose.

It is perfectly evident, therefore, that neither such voting, nor such payment of taxes, as actually takes place, proves anybody’s consent, or obligation, to support the Constitution. Consequently we have no evidence at all that the Constitution is binding upon anybody, or that anybody is under any contract or obligation whatever to support it. And nobody is under any obligation to support it.

[18]

IV

The Constitution not only binas nobody now, but it never did bind anybody. It never bound anybody, because it was never agreed to by any body in such a manner as to make it, on general principles of law and reason, binding upon him.

It is a general principle of law and reason, that a written instrument binds no one until he has signed it. This principle is so inflexible a one, that even though a man is unable to write his name, he must still “make his mark,” before he is bound by a written contract. This custom was established ages ago, when few men could write their names; when a clerk—that is, a man who could write—was so rare and valuable a person, that even if he were guilty of high crimes, he was entitled to pardon, on the ground that the public could not afford to lose his services. Even at that time, a written contract must be signed; and men who could not write, either “made their mark,” or signed their contracts by stamping their seals upon wax affixed to the parchment on which their contracts were written. Hence the custom of affixing seals, that has continued to this time.

The law holds, and reason declares, that if a written instrument is not signed, the presumption must be that the party to be bound by it, did not choose to sign it, or to bind himself by it. And law and reason both give him until the last moment, in which to decide whether he will sign it, or not. Neither law nor reason requires or expects a man to agree to an instrument, until it is written; for until it is written, he cannot know its precise legal meaning. And when it is written, and he has had the opportunity to satisfy himself of its precise legal meaning, he is then expected to decide, and not before, whether he will agree to it or not. And if he do not then sign it, his reason is supposed to be, that he does not choose to enter into such a contract. The fact that the instrument was written for him to sign, or with the hope that he would sign it, goes for nothing.

[19]

Where would be the end of fraud and litigation, if one party could bring into court a written instrument, without any signature, and claim to have it enforced, upon the ground that it was written for another man to sign? that this other man had promised to sign it? that he ought to have signed it? that he had had the opportunity to sign it, if he would? but that he had refused or neglected to do so? yet that is the most that could ever be said of the Constitution.* The very judges, who profess to derive all their authority from the Constitution—from an instrument that nobody ever signed—would spurn any other instrument, not signed, that should be brought before them for adjudication.

Moreover, a written instrument must, in law and reason, not only be signed, but must also be delivered to the party (or to some one for him), in whose favor it is made, before it can bind the party making it. The signing is of no effect, unless the instrument be also delivered. And a party is at perfect liberty to refuse to deliver a written instrument, after he has signed it. He is as free to refuse to deliver it, as he is to refuse to sign it. The constitution was not only never signed by anybody, but it was never delivered by anybody to anybody, or to anybody’s agent or attorney. It can therefore be of no more validity as a contract, than can any other instrument, that was never signed or delivered.

V

As further evidence of the general sense of mankind, as to the practical necessity there is that all men’s important contracts, especially those of a permanent nature, should be both written and signed, the following facts are pertinent.

[20]

For nearly two hundred years—that is, since 1677—there has been on the statute book of England, and the same, in substance, if not precisely in letter, has been re-enacted, and is now in force, in nearly or quite all the States of this Union, a statute, the general object of which is to declare that no action shall be brought to enforce contracts of the more important class, unless they are put in writing, and signed by the parties to be held chargeable upon them.*

The principle of the statute, be it observed, is, not merely that written contracts shall be signed, but also that all contracts, [21] except those specially exempted—generally those that are for small amounts, and are to remain in force but for a short time—shall be both written and signed.

The reason of the statute, on this point, is, that it is now so easy a thing for men to put their contracts in writing, and sign them, and their failure to do so opens the door to so much doubt, fraud, and litigation, that men who neglect to have their contracts—of any considerable importance—written and signed, ought not to have the benefit of courts of justice to enforce them. And this reason is a wise one; and that experience has confirmed its wisdom and necessity, is demonstrated by the fact that it has been acted upon in England for nearly two hundred years, and has been so nearly universally adopted in this country, and that nobody thinks of repealing it.

We all know, too, how careful most men are to have their contracts written and signed, even when this statute does not require it. For example, most men, if they have money due them, of no larger amount than five or ten dollars, are careful to take a note for it. If they buy even a small bill of goods, paying for it at the time of delivery, they take a receipted bill for it. If they pay a small balance of a book account, or any other small debt previously contracted, they take a written receipt for it.

Furthermore, the law everywhere (probably) in our country, as well as in England, requires that a large class of contracts, such as wills, deeds, etc., shall not only be written and signed, but also sealed, witnessed, and acknowledged. And in the case of married women conveying their rights in real estate, the law, in many States, requires that the women shall be examined separate and apart from their husbands, and declare that they sign their contracts free of any fear or compulsion of their husbands.

Such are some of the precautions which the laws require, and which individuals—from motives of common prudence, even in cases not required by law—take, to put their contracts in writing, and have them signed, &c., to guard against all uncertainties [22] and controversies in regard to their meaning and validity. And yet we have what purports, or professes, or is claimed, to be a contract—the Constitution—made eighty years ago, by men who are now all dead, and who never had any power to bind us, but which (it is claimed) has nevertheless bound three generations of men, consisting of many millions, and which (it is claimed) will be binding upon all the millions that are to come; but which nobody ever signed, sealed, delivered, witnessed, or acknowledged; and which few persons, compared with the whole number that are claimed to be bound by it, have ever read, or even seen, or ever will read, or see. And of those who ever have read it, or ever will read it, scarcely any two, perhaps no two, have ever agreed, or ever will agree, as to what it means.

Moreover, this supposed contract, which would not be received in any court of justice sitting under its authority, if offered to prove a debt of five dollars, owing by one man to another, is one by which—as it is generally interpreted by those who pretend to administer it—all men, women and children throughout the country, and through all time, surrender not only all their property, but also their liberties, and even lives, into the hands of men who by this supposed contract, are expressly made wholly irresponsible for their disposal of them. And we are so insane, or so wicked, as to destroy property and lives without limit, in fighting to compel men to fulfil a supposed contract, which, inasmuch as it has never been signed by anybody, is, on general principles of law and reason—such principles as we are all governed by in regard to other contracts—the merest waste paper, binding upon nobody, fit only to be thrown into the fire; or, if preserved, preserved only to serve as a witness and a warning of the folly and wickedness of mankind.

VI.

It is no exaggeration, but a literal truth, to say that, by the Constitution—not as I interpret it, but as it is interpreted by those [23] who pretend to administer it—the properties, liberties, and lives of the entire people of the United States are surrendered unreservedly into the hands of men who, it is provided by the Constitution itself, shall never be “questioned” as to any disposal they make of them.

Thus the Constitution (Art. 1, Sec. 6) provides that, “for any speech or debate [or vote,] in either house, they [the senators and representatives] shall not be questioned in any other place.”

The whole law-making power is given to these senators and representatives, [when acting by a two-thirds vote]*; and this provision protects them from all responsibility for the laws they make.

The Constitution also enables them to secure the execution of all their laws, by giving them power to withhold the salaries of, and to impeach and remove, all judicial and executive officers, who refuse to execute them.

Thus the whole power of the government is in their hands, and they are made utterly irresponsible for the use they make of it. What is this but absolute, irresponsible power?

It is no answer to this view of the case to say that these men are under oath to use their power only within certain limits; for what care they, or what should they care, for oaths or limits, when it is expressly provided, by the Constitution itself, that they shall never be “questioned,” or held to any responsibility whatever, for violating their oaths, or transgressing those limits?

Neither is it any answer to this view of the case to say that the particular individuals holding this power can be changed once in two or six years; for the power of each set of men is absolute during the term for which they hold it; and when they can hold it no longer, they are succeeded only by men whose power will be equally absolute and irresponsible.

[24]

Neither is it any answer to this view of the case to say that the men holding this absolute, irresponsible power, must be men chosen by the people (or portions of them) to hold it. A man is none the less a slave because he is allowed to choose a new master once in a term of years. Neither are a people any the less slaves because permitted periodically to choose new masters. What makes them slaves is the fact that they now are, and are always hereafter to be, in the hands of men whose power over them is, and always is to be, absolute and irresponsible.*

The right of absolute and irresponsible dominion is the right of property, and the right of property is the right of absolute, irresponsible dominion. The two are identical; the one necessarily implying the other. Neither can exist without the other. If, therefore, Congress have that absolute and irresponsible law-making power, which the Constitution—according to their interpretation of it—gives them, it can only be because they own us as property. If they own us as property, they are our masters, and their will is our law. If they do not own us as property, they are not our masters, and their will, as such, is of no authority over us.

But these men who claim and exercise this absolute and irresponsible dominion over us, dare not be consistent, and claim either to be our masters, or to own us as property. They say they are only our servants, agents, attorneys, and representatives. But this declaration involves an absurdity, a contradiction. No man can be my servant, agent, attorney, or representative, and be, at the same time, uncontrollable by me, and irresponsible to me for his acts. It is of no importance that I appointed him, and put all power in his hands. If I made him uncontrollable by me, and irresponsible to me, he is no longer my servant, agent, attorney, or representative. If I gave him absolute, irresponsible [25] power over my property, I gave him the property. If I gave him absolute, irresponsible power over myself, I made him my master, and gave myself to him as a slave. And it is of no importance whether I called him master or servant, agent or owner. The only question is, what power did I put into his hands? Was it an absolute and irresponsible one? or a limited and responsible one?

For still another reason they are neither our servants, agents, attorneys, nor representatives. And that reason is, that we do not make ourselves responsible for their acts. If a man is my servant, agent, or attorney, I necessarily make myself responsible for all his acts done within the limits of the power I have intrusted to him. If I have intrusted him, as my agent, with either absolute power, or any power at all, over the persons or properties of other men than myself, I thereby necessarily make myself responsible to those other persons for any injuries he may do them, so long as he acts within the limits of the power I have granted him. But no individual who may be injured in his person or property, by acts of Congress, can come to the individual electors, and hold them responsible for these acts of their so-called agents or representatives. This fact proves that these pretended agents of the people, of everybody, are really the agents of nobody.

If, then, nobody is individually responsible for the acts of Congress, the members of Congress are nobody’s agents. And if they are nobody’s agents, they are themselves individually responsible for their own acts, and for the acts of all whom they employ. And the authority they are exercising is simply their own individual authority; and, by the law of nature—the highest of all laws—anybody injured by their acts, anybody who is deprived by them of his property or his liberty, has the same right to hold them individually responsible, that he has to hold any other trespasser individually responsible. He has the same right [26] to resist them, and their agents, that he has to resist any other trespassers.

VII.

It is plain, then, that on general principles of law and reason—such principles as we all act upon in courts of justice and in common life—the Constitution is no contract; that it binds nobody, and never did bind anybody; and that all those who pretend to act by its authority, are really acting without any legitimate authority at all; that, on general principles of law and reason, they are mere usurpers, and that everybody not only has the right, but is morally bound, to treat them as such.

If the people of this country wish to maintain such a government as the Constitution describes, there is no reason in the world why they should not sign the instrument itself, and thus make known their wishes in an open, authentic manner; in such manner as the common sense and experience of mankind have shown to be reasonable and necessary in such cases; and in such manner as to make themselves (as they ought to do) individually responsible for the acts of the government. But the people have never been asked to sign it. And the only reason why they have never been asked to sign it, has been that it has been known that they never would sign it; that they were neither such fools nor knaves as they must needs have been to be willing to sign it; that (at least as it has been practically interpreted) it is not what any sensible and honest man wants for himself; nor such as he has any right to impose upon others. It is, to all moral intents and purposes, as destitute of obligation as the compacts which robbers and thieves and pirates enter into with each other, but never sign.

If any considerable number of the people believe the Constitution to be good, why do they not sign it themselves, and make laws for, and administer them upon, each other; leaving all [27] other persons (who do not interfere with them) in peace? Until they have tried the experiment for themselves, how can they have the face to impose the Constitution upon, or even to recommend it to, others? Plainly the reason for such absurd and inconsistent conduct is that they want the Constitution, not solely for any honest or legitimate use it can be of to themselves or others, but for the dishonest and illegitimate power it gives them over the persons and properties of others. But for this latter reason, all their eulogiums on the Constitution, all their exhortations, and all their expenditures of money and blood to sustain it, would be wanting.

VIII.

The Constitution itself, then, being of no authority, on what authority does our government practically rest? On what ground can those who pretend to administer it, claim the right to seize men’s property, to restrain them of their natural liberty of action, industry, and trade, and to kill all who deny their authority to dispose of men’s properties, liberties, and lives at their pleasure or discretion?

The most they can say, in answer to this question, is, that some half, two-thirds, or three-fourths of the male adults of the country have a tacit understanding that they will maintain a government under the Constitution; that they will select, by ballot, the persons to administer it; and that those persons who may receive a majority, or a plurality, of their ballots, shall act as their representatives, and administer the Constitution in their name, and by their authority.

But this tacit understanding (admitting it to exist) cannot at all justify the conclusion drawn from it. A tacit understanding between A, B, and C, that they will, by ballot, depute D as their agent, to deprive me of my property, liberty, or life, cannot at all authorize D to do so. He is none the less a robber, tyrant, and murderer, because he claims to act as their agent, [28] than he would be if he avowedly acted on his own responsibility alone.

Neither am I bound to recognize him as their agent, nor can he legitimately claim to be their agent, when he brings no written authority from them accrediting him as such. I am under no obligation to take his word as to who his principals may be, or whether he has any. Bringing no credentials, I have a right to say he has no such authority even as he claims to have: and that he is therefore intending to rob, enslave, or murder me on his own account.

This tacit understanding, therefore, among the voters of the country, amounts to nothing as an authority to their agents. Neither do the ballots by which they select their agents, avail any more than does their tacit understanding; for their ballots are given in secret, and therefore in a way to avoid any personal responsibility for the acts of their agents.

No body of men can be said to authorize a man to act as their agent, to the injury of a third person, unless they do it in so open and authentic a manner as to make themselves personally responsible for his acts. None of the voters in this country appoint their political agents in any open authentic manner, or in any manner to make themselves responsible for their acts. Therefore these pretended agents cannot legitimately claim to be really agents. Somebody must be responsible for the acts of these pretended agents; and if they cannot show any open and authentic credentials from their principals, they cannot, in law or reason, be said to have any principals. The maxim applies here, that what does not appear, does not exist. If they can show no principals, they have none.

But even these pretended agents do not themselves know who their pretended principals are. These latter act in secret; for acting by secret ballot is acting in secret as much as if they were to meet in secret conclave in the darkness of the night. And they are personally as much unknown to the agents they select, [29] as they are to others. No pretended agent therefore can ever know by whose ballots he is selected, or consequently who his real principals are. Not knowing who his principals are, he has no right to say that he has any. He can, at most, say only that he is the agent of a secret band of robbers and murderers, who are bound by that faith which prevails among confederates in crime, to stand by him, if his acte, done in their name, shall be resisted.

Men honestly engaged in attempting to establish justice in the world, have no occasion thus to act in secret; or to appoint agents to do acts for which they (the principals) are not willing to be responsible.

The secret ballot makes a secret government; and a secret government is a secret band of robbers and murderers. Open despotism is better than this. The single despot stands out in the face of all men, and says: I am the State: My will is law: I am your master: I take the responsibility of my acts: The only arbiter I acknowledge is the sword: If any one denies my right, let him try conclusions with me.

But a secret government is little less than a government of assassins. Under it, a man knows not who his tyrants are, until they have struck, and perhaps not then. He may guess, beforehand, as to some of his immediate neighbors. But he really knows nothing. The man to whom he would most naturally fly for protection, may prove an enemy, when the time of trial comes.

This is the kind of government we have; and it is the only one we are likely to have, until men are ready to say: We will consent to no Constitution, except such an one as we are neither ashamed nor afraid to sign; and we will authorize no government to do any thing in our name which we are not willing to be personally responsible for.

[30]

IX.

What is the motive to the secret ballot? This, and only this: Like other confederates in crime, those who use it are not friends, but enemies; and they are afraid to be known, and to have their individual doings known, even to each other. They can contrive to bring about a sufficient understanding to enable them to act in concert against other persons; but beyond this they have no confidence, and no friendship, among themselves. In fact, they are engaged quite as much in schemes for plundering each other, as in plundering those who are not of them. And it is perfectly well understood among them that the strongest party among them will, in certain contingencies, murder each other by the hundreds of thousands (as they lately did do) to accomplish their purposes against each other. Hence they dare not be known, and have their individual doings known, even to each other. And this is avowedly the only reason for the ballot: for a secret government; a government by secret bands of robbers and murderers. And we are insane enough to call this liberty! To be a member of this secret band of robbers and murderers is esteemed a privilege and an honor! Without this privilege, a man is considered a slave; but with it a free man! With it he is considered a free man, because he has the same power to secretly (by secret ballot) procure the robbery, enslavement, and murder of another man, that that other man has to procure his robbery, enslavement, and murder. And this they call equal rights!

If any number of men, many or few, claim the right to govern the people of this country, let them make and sign an open compact with each other to do so. Let them thus make themselves individually known to those whom they propose to govern. And let them thus openly take the legitimate responsibility of their acts. How many of those who now support the Constitution, will ever do this? How many will ever dare openly proclaim [31] their right to govern? or take the legitimate responsibility of their acts? Not one!

X.

It is obvious that, on general principles of law and reason, there exists no such thing as a government created by, or resting upon, any consent, compact, or agreement of “the people of the United States” with each other; that the only visible, tangible, responsible government that exists, is that of a few individuals only, who act in concert, and call themselves by the several names of senators, representatives, presidents, judges, marshals, treasurers, collectors, generals, colonels, captains, &c., &c.

On general principles of law and reason, it is of no importance whatever that these few individuals profess to be the agents and representatives of “the people of the United States”; since they can show no credentials from the people themselves; they were never appointed as agents or representatives in any open authentic manner; they do not themselves know, and have no means of knowing, and cannot prove, who their principals (as they call them) are individually; and consequently cannot, in law or reason, be said to have any principals at all.

It is obvious, too, that if these alleged principals ever did appoint these pretended agents, or representatives, they appointed them secretly (by secret ballot), and in a way to avoid all personal responsibility for their acts; that, at most, these alleged principals put these pretended agents forward for the most criminal purposes, viz.: to plunder the people of their property, and restrain them of their liberty; and that the only authority that these alleged principals have for so doing, is simply a tacit understanding among themselves that they will imprison, shoot, or hang every man who resists the exactions and restraints which their agents or representatives may impose upon them.

Thus it is obvious that the only visible, tangible government we [32] have is made up of these professed agents or representatives of a secret band of robbers and murderers, who, to cover up, or gloss over, their robberies and murders, have taken to themselves the title of “the people of the United States;” and who, on the pretence of being “the people of the United States,” assert their right to subject to their dominion, and to control and dispose of at their pleasure, all property and persons found in the United States.

XI.

On general principles of law and reason, the oaths which these pretended agents of the people take “to support the Constitution,” are of no validity or obligation. And why? For this, if for no other reason, viz. that they are given to nobody. There is no privity, (as the lawyers say),—that is, no mutual recognition, consent and agreement—between those who take these oaths, and any other persons.

If I go upon Boston Common, and in the presence of a hundred thousand people, men, women and children, with whom I have no contract on the subject, take an oath that I will enforce upon them the laws of Moses, of Lycurgus, of Solon, of Justinian, or of Alfred, that oath is, on general principles of law and reason, of no obligation. It is of no obligation, not merely because it is intrinsically a criminal one, but also because it is given to nobody, and consequently pledges my faith to nobody. It is merely given to the winds.

It would not alter the case at all to say that, among these hundred thousand persons, in whose presence the oath was taken, there were two, three, or five thousand male adults, who had secretly—by secret ballot, and in a way to avoid making themselves individually known to me, or to the remainder of the hundred thousand—designated me as their agent to rule, control, plunder, and, if need be, murder, these hundred thousand [33] people. The fact that they had designated me secretly, and in a manner to prevent my knowing them individually, prevents all privity between them and me; and consequently makes it impossible that there can be any contract, or pledge of faith, on my part towards them; for it is impossible that I can pledge my faith, in any legal sense, to a man whom I neither know, nor have any means of knowing, individually.

So far as I am concerned, then, these two, three, or five thousand persons are a secret band of robbers and murderers, who have secretly, and in a way to save themselves from all responsibility for my acts, designated me as their agent; and have, through some other agent, or pretended agent, made their wishes known to me. But being, nevertheless, individually unknown to me, and having no open, authentic contract with me, my oath is, on general principles of law and reason, of no validity as a pledge of faith to them. And being no pledge of faith to them, it is no pledge of faith to anybody. It is mere idle wind. At most, it is only a pledge of faith to an unknown band of robbers and murderers, whose instrument for plundering and murdering other people, I thus publicly confess myself to be. And it has no other obligation than a similar oath given to any other unknown body of pirates, robbers, and murderers.

For these reasons the oath taken by members of Congress, “to support the Constitution,” are, on general principles of law and reason, of no validity. They are not only criminal in themselves, and therefore void; but they are also void for the further reason that they are given to nobody.

It cannot be said that, in any legitimate or legal sense, they are given to “the people of the United States;” because neither the whole, nor any large proportion of the whole, people of the United States ever, either openly or secretly, appointed or designated these men as their agents to carry the Constitution into effect. The great body of the people—that is, men, women and children—were never asked, or even permitted, to signify, in any [34] formal manner, either openly or secretly, their choice or wish on the subject. The most that these members of Congress can say, in favor of their appointment, is simply this: Each one can say for himself:

I have evidence satisfactory to myself, that there exists, scattered throughout the country, a band of men, having a tacit understanding with each other, and calling themselves “the people of the United States,” whose general purposes are to control and plunder each other, and all other persons in the country, and, so far as they can, even in neighboring countries; and to kill every man who shall attempt to defend his person and property against their schemes of plunder and dominion. Who these men are, individually, I have no certain means of knowing, for they sign no papers, and give no open, authentic evidence of their individual membership. They are not known individually even to each other. They are apparently as much afraid of being individually known to each other, as of being known to other persons. Hence they ordinarily have no mode either of exercising, or of making known, their individual membership, otherwise than by giving their votes secretly for certain agents to do their will. But although these men are individually unknown, both to each other and to other persons, it is generally understood in the country that none but male persons, of the age of twenty-one years and upwards, can be members. It is also generally understood that all male persons, born in the country, having certain complexions, and (in some localities) certain amounts of property, and (in certain cases) even persons of foreign birth, are permitted to be members. But it appears that usually not more than one-half, two-thirds, or, in some cases, three-fourths, of all who are thus permitted to become members of the band, ever exercise, or consequently prove, their actual membership, in the only mode in which they ordinarily can exercise or prove it, viz., by giving their votes secretly for the officers or agents of the band. The number of these secret [35] votes, so far as we have any account of them, varies greatly from year to year, thus tending to prove that the band, instead of being a permanent organization, is a merely pro tempore affair with those who choose to act with it for the time being. The gross number of these secret votes, or what purports to be their gross number, in different localities, is occasionally published. Whether these reports are accurate or not, we have no means of knowing. It is generally supposed that great frauds are often committed in depositing them. They are understood to be received and counted by certain men, who are themselves appointed for that purpose by the same secret process by which all other officers and agents of the band are selected. According to the reports of these receivers of votes (for whose accuracy or honesty, however, I cannot vouch), and according to my best knowledge of the whole number of male persons “in my district,” who (it is supposed) were permitted to vote, it would appear that one-half, two-thirds or three-fourths actually did vote. Who the men were, individually, who cast these votes, I have no knowledge, for the whole thing was done secretly. But of the secret votes thus given for what they call a “member of Congress,” the receivers reported that I had a majority, or at least a larger number than any other one person. And it is only by virtue of such a designation that I am now here to act in concert with other persons similarly selected in other parts of the country. It is understood among those who sent me here, that all the persons so selected, will, on coming together at the City of Washington, take an oath in each other’s presence “to support the Constitution of the United States.” By this is meant a certain paper that was drawn up eighty years ago. It was never signed by anybody, and apparently has no obligation, and never had any obligation, as a contract. In fact, few persons ever read it, and doubtless much the largest number of those who voted for me and the others, never even saw it, or now pretend to know what it means. Nevertheless, it is often spoken [36] of in the country as “the Constitution of the United States;” and for some reason or another, the men who sent me here, seem to expect that I, and all with whom I act, will swear to carry this Constitution into effect. I am therefore ready to take this oath, and to co-operate with all others, similarly selected, who are ready to take the same oath.

This is the most that any member of Congress can say in proof that he has any constituency; that he represents anybody; that his oath “to support the Constitution,” is given to anybody, or pledges his faith to anybody. He has no open, written, or other authentic evidence, such as is required in all other cases, that he was ever appointed the agent or representative of anybody. He has no written power of attorney from any single individual. He has no such legal knowledge as is required in all other cases, by which he can identify a single one of those who pretend to have appointed him to represent them.

Of course his oath, professedly given to them, “to support the Constitution,” is, on general principles of law and reason, an oath given to nobody. It pledges his faith to nobody. If he fails to fulfil his oath, not a single person can come forward, and say to him, you have betrayed me, or broken faith with me.

No one can come forward and say to him: I appointed you my attorney to act for me. I required you to swear that, as my attorney, you would support the Constitution. You promised me that you would do so; and now you have forfeited the oath you gave to me. No single individual can say this.

No open, avowed, or responsible association, or body of men, can come forward and say to him: We appointed you our attorney, to act for us. We required you to swear that, as our attorney, you would support the Constitution. You promised us that you would do so; and now you have forfeited the oath you gave to us.

No open, avowed, or responsible association, or body of men, [37] can say this to him; because there is no such association or body of men in existence. If any one should assert that there is such an association, let him prove, if he can, who compose it. Let him produce, if he can, any open, written, or other authentic contract, signed or agreed to by these men; forming themselves into an association; making themselves known as such to the world; appointing him as their agent; and making themselves individually, or as an association, responsible for his acts, done by their authority. Until all this can be shown, no one can say that, in any legitimate sense, there is any such association; or that he is their agent; or that he ever gave his oath to them; or ever pledged his faith to them.

On general principles of law and reason, it would be a sufficient answer for him to say, to all individuals, and all pretended associations of individuals, who should accuse him of a breach of faith to them:

I never knew you. Where is your evidence that you, either individually or collectively, ever appointed me your attorney? that you ever required me to swear to you, that, as your attorney, I would support the Constitution? or that I have now broken any faith I ever pledged to you? You may, or you may not, be members of that secret band of robbers and murderers, who act in secret; appoint their agents by a secret ballot; who keep themselves individually unknown even to the agents they thus appoint; and who, therefore, cannot claim that they have any agents; or that any of their pretended agents ever gave his oath, or pledged his faith, to them. I repudiate you altogether. My oath was given to others, with whom you have nothing to do; or it was idle wind, given only to the idle winds. Begone!

XII.

For the same reasons, the oaths of all the other pretended agents of this secret band of robbers and murderers are on [38] general principles of law and reason, equally destitute of obligation. They are given to nobody; but only to the winds.

The oaths of the tax-gatherers and treasurers of the band, are, on general principles of law and reason, of no validity. If any tax gatherer, for example, should put the money he receives into his own pocket, and refuse to part with it, the members of this band could not say to him: You collected that money as our agent, and for our uses; and you swore to pay it over to us, or to those we should appoint to receive it. You have betrayed us, and broken faith with us.

It would be a sufficient answer for him to say to them:

I never knew you. You never made yourselves individually known to me. I never gave my oath to you, as individuals. You may, or you may not, be members of that secret band, who appoint agents to rob and murder other people; but who are cautious not to make themselves individually known, either to such agents, or to those whom their agents are commissioned to rob. If you are members of that band, you have given me no proof of it, and you have no proof that you ever commissioned me to rob others for your benefit. I never knew you, as individuals, and of course never promised you that I would pay over to you the proceeds of my robberies. I committed my robberies on my own account, and for my own profit. If you thought I was fool enough to allow you to keep yourselves concealed, and use me as your tool for robbing other persons; or that I would take all the personal risk of the robberies, and pay over the proceeds to you, you were particularly simple. As I took all the risk of my robberies, I propose to take all the profits. Begone! You are fools, as well as villains. If I gave my oath to anybody, I gave it to other persons than you. But I really gave it to nobody. I only gave it to the winds. It answered my purposes at the time. It enabled me to get the money I was after, and now I propose to keep it. If you expected me to pay it over to you, you relied only upon that honor [39] that is said to prevail among thieves. You now understand that that is a very poor reliance. I trust you may become wise enough to never rely upon it again. If I have any duty in the matter, it is to give back the money to those from whom I took it; not to pay it over to such villains as you.

XIII.

On general principles of law and reason, the oaths which foreigners take, on coming here, and being “naturalized” (as it is called), are of no validity. They are necessarily given to nobody; because there is no open, authentic association, to which they can join themselves; or to whom, as individuals, they can pledge their faith. No such association, or organization, as “the people of the United States,” having ever been formed by any open, written, authentic, or voluntary contract, there is, on general principles of law and reason, no such association, or organization, in existence. And all oaths that purport to be given to such an association are necessarily given only to the winds. They cannot be said to be given to any man, or body of men, as individuals, because no man, or body of men, can come forward with any proof that the oaths were given to them, as individuals, or to any association of which they are members. To say that there is a tacit understanding among a portion of the male adults of the country, that they will call themselves “the people of the United States,” and that they will act in concert in subjecting the remainder of the people of the United States to their dominion; but that they will keep themselves personally concealed by doing all their acts secretly, is wholly insufficient, on general principles of law and reason, to prove the existence of any such association, or organization, as “the people of the United States;” or consequently to prove that the oaths of foreigners were given to any such association.

[40]

XIV.

On general principles of law and reason, all the oaths which, since the war, have been given by Southern men, that they will obey the laws of Congress, support the Union, and the like, are of no validity. Such oaths are invalid, not only because they were extorted by military power, and threats of confiscation, and because they are in contravention of men’s natural right to do as they please about supporting the government, but also because they were given to nobody. They were nominally given to “the United States.” But being nominally given to “the United States,” they were necessarily given to nobody, because, on general principles of law and reason, there were no “United States,” to whom the oaths could be given. That is to say, there was no open, authentic, avowed, legitimate association, corporation, or body of men, known as “the United States,” or as “the people of the United States,” to whom the oaths could have been given. If anybody says there was such a corporation, let him state who were the individuals that composed it, and how and when they became a corporation. Were Mr. A, Mr. B, and Mr. C members of it? If so, where are their signatures? Where the evidence of their membership? Where the record? Where the open, authentic proof? There is none. Therefore, in law and reason, there was no such corporation.

On general principles of law and reason, every corporation, association, or organized body of men, having a legitimate corporate existence, and legitimate corporate rights, must consist of certain known individuals, who can prove, by legitimate and reasonable evidence, their membership. But nothing of this kind can be proved in regard to the corporation, or body of men, who call themselves “the United States.” Not a man of them, in all the Northern States, can prove by any legitimate evidence, such as is required to prove membership in other legal corporations, that he himself, or any other man whom he can name, is [41] a member of any corporation or association called “the United States,” or “the people of the United States,” or, consequently, that there is any such corporation. And since no such corporation can be proved to exist, it cannot of course be proved that the oaths of Southern men were given to any such corporation. The most that can be claimed is that the oaths were given to a secret band of robbers and murderers, who called themselves “the United States,” and extorted those oaths. But that certainly is not enough to prove that the oaths are of any obligation.

XV.

On general principles of law and reason, the oaths of soldiers, that they will serve a given number of years, that they will obey the orders of their superior officers, that they will bear true allegiance to the government, and so forth, are of no obligation. Independently of the criminality of an oath, that, for a given number of years, he will kill all whom he may be commanded to kill, without exercising his own judgment or conscience as to the justice or necessity of such killing, there is this further reason why a soldier’s oath is of no obligation, viz. that, like all the other oaths that have now been mentioned, it is given to nobody. There being, in no legitimate sense, any such corporation, or nation, as “the United States,” nor, consequently, in any legitimate sense, any such government as “the government of the United States,” a soldier’s oath given to, or contract made with, such nation or government, is necessarily an oath given to, or a contract made with, nobody. Consequently such oath or contract can be of no obligation.

XVI.

On general principles of law and reason, the treaties, so called, which purport to be entered into with other nations, by [42] certain persons calling themselves ambassadors, secretaries, presidents, and senators of the United States, in the name, and on behalf, of “the people of the United States,” are of no validity. These so-called ambassadors, secretaries, presidents, and senators, who claim to be the agents of “the people of the United States,” for making these treaties, can show no open, written, or other authentic evidence that either the whole “people of the United States,” or any other open, avowed, responsible body of men, calling themselves by that name, ever authorized these pretended ambassadors and others to make treaties in the name of, or binding upon any one of, “the people of the United States.” Neither can they show any open, written, or other authentic evidence that either the whole “people of the United States,” or any other open, avowed, responsible body of men, calling themselves by that name, ever authorized these pretended ambassadors, secretaries, and others, in their name and behalf, to recognize certain other persons, calling themselves emperors, kings, queens, and the like, as the rightful rulers, sovereigns, masters, or representatives of the different peoples whom they assume to govern, to represent, and to bind.

The “nations,” as they are called, with whom our pretended ambassadors, secretaries, presidents and senators profess to make treaties, are as much myths as our own. On general principles of law and reason, there are no such “nations.” That is to say, neither the whole people of England, for example, nor any open, avowed, responsible body of men, calling themselves by that name, ever, by any open, written, or other authentic contract with each other, formed themselves into any bona fide, legitimate association or organization, or authorized any king, queen, or other representative to make treaties in their name, or to bind them, either individually, or as an association, by such treaties.

Our pretended treaties, then, being made with no legitimate or bona fide nations, or representatives of nations, and being [43] made, on our part, by persons who have no legitimate authority to act for us, have intrinsically no more validity than a pretended treaty made by the Man in the Moon with the king of the Pleiades.

XVII.

On general principles of law and reason, debts contracted in the name of “the United States,” or of “the people of the United States,” are of no validity. It is utterly absurd to pretend that debts to the amount of twenty-five hundred millions of dollars are binding upon thirty-five or forty millions of people, when there is not a particle of legitimate evidence—such as would be required to prove a private debt—that can be produced against any one of them, that either he, or his properly authorized attorney, ever contracted to pay one cent.

Certainly, neither the whole people of the United States, nor any number of them, ever separately or individually contracted to pay a cent of these debts.

Certainly, also, neither the whole people of the United States, nor any number of them, ever, by any open, written, or other authentic and voluntary contract, united themselves as a firm, corporation, or association, by the name of “the United States,” or “the people of the United States,” and authorized their agents to contract debts in their name.

Certainly, too, there is in existence no such firm, corporation, or association as “the United States,” or “the people of the United States,” formed by any open, written, or other authentic and voluntary contract, and having corporate property with which to pay these debts.

How, then, is it possible, on any general principle of law or reason, that debts that are binding upon nobody individually, can be binding upon forty millions of people collectively, when, on general and legitimate principles of law and reason, these [44] forty millions of people neither have, nor ever had, any corporate property? never made any corporate or individual contract? and neither have, nor ever had, any corporate existence?

Who, then, created these debts, in the name of “the United States?” Why, at most, only a few persons, calling themselves “members of Congress,” &c. who pretended to represent “the people of the United States,” but who really represented only a secret band of robbers and murderers, who wanted money to carry on the robberies and murders in which they were then engaged; and who intended to extort from the future people of the United States, by robbery and threats of murder (and real murder, if that should prove necessary), the means to pay these debts.

This band of robbers and murderers, who were the real principals in contracting these debts, is a secret one, because its members have never entered into any open, written, avowed, or authentic contract, by which they may be individually known to the world, or even to each other. Their real or pretended representatives, who contracted these debts in their name, were selected (if selected at all) for that purpose secretly (by secret ballot), and in a way to furnish evidence against none of the principals individually; and these principals were really known individually neither to their pretended representatives who contracted these debts in their behalf, nor to those who lent the money. The money, therefore, was all borrowed and lent in the dark; that is, by men who did not see each other’s faces, or know each other’s names; who could not then, and cannot now, identify each other as principals in the transactions; and who consequently can prove no contract with each other.

Furthermore, the money was all lent and borrowed for criminal purposes; that is, for purposes of robbery and murder; and for this reason the contracts were all intrinsically void; and would have been so, even though the real parties, borrowers and [45] lenders, had come face to face, and made their contracts openly, in their own proper names.

Furthermore, this secret band of robbers and murderers, who were the real borrowers of this money, having no legitimate corporate existence, have no corporate property with which to pay these debts. They do indeed pretend to own large tracts of wild lands, lying between the Atlantic and Pacific Oceans, and between the Gulf of Mexico and the North Pole. But, on general principles of law and reason, they might as well pretend to own the Atlantic and Pacific Oceans themselves; or the atmosphere and the sunlight; and to hold them, and dispose of them, for the payment of these debts.

Having no corporate property with which to pay what purports to be their corporate debts, this secret band of robbers and murderers are really bankrupt. They have nothing to pay with. In fact, they do not propose to pay their debts otherwise than from the proceeds of their future robberies and murders. These are confessedly their sole reliance; and were known to be such by the lenders of the money, at the time the money was lent. And it was, therefore, virtually a part of the contract, that the money should be repaid only from the proceeds of these future robberies and murders. For this reason, if for no other, the contracts were void from the beginning.

In fact, these apparently two classes, borrowers and lenders, were really one and the same class. They borrowed and lent money from and to themselves. They themselves were not only part and parcel, but the very life and soul, of this secret band of robbers and murderers, who borrowed and spent the money. Individually they furnished money for a common enterprise; taking, in return, what purported to be corporate promises for individual loans. The only excuse they had for taking these so-called corporate promises of, for individual loans by, the same parties, was that they might have some apparent excuse for the future robberies of the band (that is, to pay the debts of [46] the corporation), and that they might also know what shares they were to be respectively entitled to out of the proceeds of their future robberies.

Finally, if these debts had been created for the most innocent and honest purposes, and in the most open and honest manner, by the real parties to the contracts, these parties could thereby have bound nobody but themselves, and no property but their own. They could have bound nobody that should have come after them, and no property subsequently created by, or belonging to, other persons.

XVIII.

The Constitution having never been signed by anybody; and there being no other open, written, or authentic contract between any parties whatever, by virtue of which the United States government, so called, is maintained; and it being well known that none but male persons, of twenty-one years of age and upwards, are allowed any voice in the government; and it being also well known that a large number of these adult persons seldom or never vote at all; and that all those who do vote, do so secretly (by secret ballot), and in a way to prevent their individual votes being known, either to the world, or even to each other; and consequently in a way to make no one openly responsible for the acts of their agents, or representatives,—all these things being known, the questions arise: Who compose the real governing power in the country? Who are the men, the responsible men, who rob us of our property? Restrain us of our liberty? Subject us to their arbitrary dominion? And devastate our homes, and shoot us down by the hundreds of thousands, if we resist? How shall we find these men? How shall we know them from others? How shall we defend ourselves and our property against them? Who, of our neighbors, are members of this secret band of robbers and murderers? How [47] can we know which are their houses, that we may burn or demolish them? Which their property, that we may destroy it? Which their persons, that we may kill them, and rid the world and ourselves of such tyrants and monsters?

These are questions that must be answered, before men can be free; before they can protect themselves against this secret band of robbers and murderers, who now plunder, enslave, and destroy them.

The answer to these questions is, that only those who have the will and the power to shoot down their fellow men, are the real rulers in this, as in all other (so called) civilized countries; for by no others will civilized men be robbed, or enslaved.

Among savages, mere physical strength, on the part of one man, may enable him to rob, enslave, or kill another man. Among barbarians, mere physical strength, on the part of a body of men, disciplined, and acting in concert, though with very little money or other wealth, may, under some circumstances, enable them to rob, enslave, or kill another body of men, as numerous, or perhaps even more numerous, than themselves. And among both savages and barbarians, mere want may sometimes compel one man to sell himself as a slave to another. But with (so called) civilized peoples, among whom knowledge, wealth, and the means of acting in concert, have become diffused; and who have invented such weapons and other means of defence as to render mere physical strength of less importance; and by whom soldiers in any requisite number, and other instrumentalities of war in any requisite amount, can always be had for money, the question of war, and consequently the question of power, is little else than a mere question of money. As a necessary consequence, those who stand ready to furnish this money, are the real rulers. It is so in Europe, and it is so in this country.

In Europe, the nominal rulers, the emperors and kings and parliaments, are anything but the real rulers of their respective countries. They are little or nothing else than mere tools, employed [48] by the wealthy to rob, enslave, and (if need be) murder those who have less wealth, or none at all.

The Rothschilds, and that class of money-lenders of whom they are the representatives and agents,—men who never think of lending a shilling to their next-door neighbors, for purposes of honest industry, unless upon the most ample security, and at the highest rate of interest,—stand ready, at all times, to lend money in unlimited amounts to those robbers and murderers, who call themselves governments, to be expended in shooting down those who do not submit quietly to being robbed and enslaved.

They lend their money in this manner, knowing that it is to be expended in murdering their fellow men, for simply seeking their liberty and their rights; knowing also that neither the interest nor the principal will ever be paid, except as it will be extorted under terror of the repetition of such murders as those for which the money lent is to be expended.

These money-lenders, the Rothschilds, for example, say to themselves: If we lend a hundred millions sterling to the Queen and Parliament of England, it will enable them to murder twenty, fifty, or a hundred thousand people in England, Ireland, or India; and the terror inspired by such wholesale murder, will enable them to keep the whole people of those countries in subjection for twenty, or perhaps fifty, years to come; to control all their trade and industry; and to extort from them large amounts of money, under the name of taxes; and from the wealth thus extorted from them, they (the Queen and Parliament) can afford to pay us a higher rate of interest for our money than we can get in any other way. Or, if we lend this sum to the Emperor of Austria, it will enable him to murder so many of his people as to strike terror into the rest, and thus enable him to keep them in subjection, and extort money from them, for twenty or fifty years to come. And they say the same in regard to the Emperor of Russia, the King of Prussia, the Emperor of France, [49] or any other ruler, so called, who, in their judgment, will be able, by murdering a reasonable portion of his people, to keep the rest in subjection, and extort money from them, for a long time to come, to pay the interest and principal of the money lent him.

And why are these men so ready to lend money for murdering their fellow men? Solely for this reason, viz., that such loans are considered better investments than loans for purposes of honest industry. They pay higher rates of interest; and it is less trouble to look after them. This is the whole matter.

The question of making these loans is, with these lenders, a mere question of pecuniary profit. They lend money to be expended in robbing, enslaving, and murdering their fellow men, solely because, on the whole, such loans pay better than any others. They are no respecters of persons, no superstitious fools, that reverence monarchs. They care no more for a king, or an emperor, than they do for a beggar, except as he is a better customer, and can pay them better interest for their money. If they doubt his ability to make his murders successful for maintaining his power, and thus extorting money from his people in future, they dismiss him as unceremoniously as they would dismiss any other hopeless bankrupt, who should want to borrow money to save himself from open insolvency.

When these great lenders of blood-money, like the Rothschilds, have loaned vast sums in this way, for purposes of murder, to an emperor or a king, they sell out the bonds taken by them, in small amounts, to anybody, and everybody, who are disposed to buy them at satisfactory prices, to hold as investments. They (the Rothschilds) thus soon get back their money, with great profits; and are now ready to lend money in the same way again to any other robber and murderer, called an emperor or a king, who, they think, is likely to be successful in his robberies and murders, and able to pay a good price for the money necessary to carry them on.

[50]

This business of lending blood-money is one of the most thoroughly sordid, cold-blooded and criminal that was ever carried on, to any considerable extent, amongst human beings. It is like lending money to slave-traders, or to common robbers and pirates, to be repaid out of their plunder. And the men who loan money to governments, so called, for the purpose of enabling the latter to rob, enslave, and murder their people, ar among the greatest villains that the world has ever seen. And they as much deserve to be hunted and killed (if they cannot otherwise be got rid of) as any slave-traders, robbers, or pirates that ever lived.

When these emperors and kings, so called, have obtained their loans, they proceed to hire and train immense numbers of professional murderers, called soldiers, and employ them in shooting down all who resist their demands for money. In fact, most of them keep large bodies of these murderers constantly in their service, as their only means of enforcing their extortions. There are now, I think, four or five millions of these professional murderers constantly employed by the so-called sovereigns of Europe. The enslaved people are, of course, forced to support and pay all these murderers, as well as to submit to all the other extortions which these murderers are employed to enforce.

It is only in this way that most of the so-called governments of Europe are maintained. These so-called governments are in reality only great bands of robbers and murderers, organized, disciplined, and constantly on the alert. And the so-called sovereigns, in these different governments, are simply the heads, or chiefs, of different bands of robbers and murderers. And these heads or chiefs are dependent upon the lenders of blood-money for the means to carry on their robberies and murders. They could not sustain themselves a moment but for the loans made to them by these blood-money loan-mongers. And their first care is to maintain their credit with them; for they know [51] their end is come, the instant their credit with them fails. Consequently the first proceeds of their extortions are scrupulously applied to the payment of the interest on their loans.

In addition to paying the interest on their bonds, they perhaps grant to the holders of them great monopolies in banking, like the Banks of England, of France, and of Vienna; with the agreement that these banks shall furnish money whenever, in sudden emergencies, it may be necessary to shoot down more of their people. Perhaps also, by means of tariffs on competing imports, they give great monopolies to certain branches of industry, in which these lenders of blood-money are engaged. They also, by unequal taxation, exempt wholly or partially the property of these loan-mongers, and throw corresponding burdens upon those who are too poor and weak to resist.

Thus it is evident that all these men, who call themselves by the high-sounding names of Emperors, Kings, Sovereigns, Monarchs, Most Christian Majesties, Most Catholic Majesties, High Mightinesses, Most Serene and Potent Princes, and the like, and who claim to rule “by the grace of God,” by “Divine Right,”—that is, by special authority from Heaven,—are intrinsically not only the merest miscreants and wretches, engaged solely in plundering, enslaving, and murdering their fellow men, but that they are also the merest hangers on, the servile, obsequious, fawning dependents and tools of these blood-money loan-mongers, on whom they rely for the means to carry on their crimes. These loan-mongers, like the Rothschilds, laugh in their sleeves, and say to themselves: These despicable creatures, who call themselves emperors, and kings, and majesties, and most serene and potent princes; who profess to wear crowns, and sit on thrones; who deck themselves with ribbons, and feathers, and jewels; and surround themselves with hired flatterers and lickspittles; and whom we suffer to strut around, and palm themselves off, upon fools and slaves, as sovereigns and lawgivers specially appointed by Almighty God; and to hold themselves [52] out as the sole fountains of honors, and dignities, and wealth, and power,—all these miscreants and impostors know that we make them, and use them; that in us they live, move, and have their being; that we require them (as the price of their positions) to take upon themselves all the labor, all the danger, and all the odium of all the crimes they commit for our profit; and that we will unmake them, strip them of their gewgaws, and send them out into the world as beggars, or give them over to the vengeance of the people they have enslaved, the moment they refuse to commit any crime we require of them, or to pay over to us such share of the proceeds of their robberies as we see fit to demand.

XIX.

Now, what is true in Europe, is substantially true in this country. The difference is the immaterial one, that, in this country, there is no visible, permanent head, or chief, of these robbers and murderers, who call themselves “the government.” That is to say, there is no one man, who calls himself the state, or even emperor, king, or sovereign; no one who claims that he and his children rule “by the Grace of God,” by “Divine Right,” or by special appointment from Heaven. There are only certain men, who call themselves presidents, senators, and representatives, and claim to be the authorized agents, for the time being, or for certain short periods, of all “the people of the United States;” but who can show no credentials, or powers of attorney, or any other open, authentic evidence that they are so; and who notoriously are not so; but are really only the agents of a secret band of robbers and murderers, whom they themselves do not know, and have no means of knowing, individually; but who, they trust, will openly or secretly, when the crisis comes, sustain them in all their usurpations and crimes.

What is important to be noticed is, that these so-called presidents, senators, and representatives, these pretended agents of all “the people of the United States,” the moment their exactions [53] meet with any formidable resistance from any portion of “the people” themselves, are obliged, like their co-robbers and murderers in Europe, to fly at once to the lenders of blood money, for the means to sustain their power. And they borrow their money on the same principle, and for the same purpose, viz., to be expended in shooting down all those “people of the United States”—their own constituents and principals, as they profess to call them—who resist the robberies and enslavement which these borrowers of the money are practising upon them. And they expect to repay the loans, if at all, only from the proceeds of the future robberies, which they anticipate it will be easy for them and their successors to perpetrate through a long series of years, upon their pretended principals, if they can but shoot down now some hundreds of thousands of them, and thus strike terror into the rest.

Perhaps the facts were never made more evident, in any country on the globe, than in our own, that these soulless blood-money loan-mongers are the real rulers; that they rule from the most sordid and mercenary motives; that the ostensible government, the presidents, senators, and representatives, so-called, are merely their tools; and that no ideas of, or regard for, justice or liberty had anything to do in inducing them to lend their money for the war. In proof of all this, look at the following facts.

Nearly a hundred years ago we professed to have got rid of all that religious superstition, inculcated by a servile and corrupt priesthood in Europe, that rulers, so called, derived their authority directly from Heaven; and that it was consequently a religious duty on the part of the people to obey them. We professed long ago to have learned that governments could rightfully exist only by the free will, and on the voluntary support, of those who might choose to sustain them. We all professed to have known long ago, that the only legitimate objects of government were the maintenance of liberty and justice equally for all. All this [54] we had professed for nearly a hundred years. And we professed to look with pity and contempt upon those ignorant, superstitious, and enslaved peoples of Europe, who were so easily kept in subjection by the frauds and force of priests and kings.

Notwithstanding all this, that we had learned, and known, and professed, for nearly a century, these lenders of blood money had, for a long series of years previous to the war, been the willing accomplices of the slave-holders in perverting the government from the purposes of liberty and justice, to the greatest of crimes. They had been such accomplices for a purely pecuniary consideration, to wit, a control of the markets in the South; in other words, the privilege of holding the slave-holders them-selves in industrial and commercial subjection to the manufacturers and merchants of the North (who afterwards furnished the money for the war). And these Northern merchants and manufacturers, these lenders of blood-money, were willing to continue to be the accomplices of the slave-holders in the future, for the same pecuniary consideration. But the slave-holders, either doubting the fidelity of their Northern allies, or feeling themselves strong enough to keep their slaves in subjection without Northern assistance, would no longer pay the price which these Northern men demanded. And it was to enforce this price in the future—that is, to monopolize the Southern markets, to maintain their industrial and commercial control over the South—that these Northern manufacturers and merchants lent some of the profits of their former monopolies for the war, in order to secure to themselves the same, or greater, monopolies in the future. These—and not any love of liberty or justice—were the motives on which the money for the war was lent by the North. In short, the North said to the slave-holders: If you will not pay us our price (give us control of your markets) for our assistance against your slaves, we will secure the same price (keep control of your markets) by helping your slaves against you, and using them as our tools for maintaining [55] dominion over you; for the control of your markets we will have, whether the tools we use for that purpose be black or white, and be the cost, in blood and money, what it may.

On this principle, and from this motive, and not from any love of liberty or justice, the money was lent in enormous amounts, and at enormous rates of interest. And it was only by means of these loans that the objects of the war were accomplished.

And now these lenders of blood-money demand their pay; and the government, so called, becomes their tool, their servile, slavish, villanous tool, to extort it from the labor of the enslaved people both of the North and the South. It is to be extorted by every form of direct, and indirect, and unequal taxation. Not only the nominal debt and interest—enormous as the latter was—are to be paid in full; but these holders of the debt are to be paid still further—and perhaps doubly, triply, or quadruply paid—by such tariffs on imports as will enable our home manufacturers to realize enormous prices for their commodities; also by such monopolies in banking as will enable them to keep control of, and thus enslave and plunder, the industry and trade of the great body of the Northern people themselves. In short, the industrial and commercial slavery of the great body of the people, North and South, black and white, is the price which these-lenders of blood money demand, and insist upon, and are determined to secure, in return for the money lent for the war.

This programme having been fully arranged and systematized, they put their sword into the hands of the chief murderer of the war, and charge him to carry their scheme into effect. And now he, speaking as their organ, says: “Let us have peace.”

The meaning of this is: Submit quietly to all the robbery and slavery we have arranged for you, and you can have “peace.” But in case you resist, the same lenders of blood-money, who furnished the means to subdue the South, will furnish the means again to subdue you.

[56]

These are the terms on which alone this government, or, with few exceptions, any other, ever gives “peace” to its people.

The whole affair, on the part of those who furnished the money, has been, and now is, a deliberate scheme of robbery and murder; not merely to monopolize the markets of the South, but also to monopolize the currency, and thus control the industry and trade, and thus plunder and enslave the laborers, of both North and South. And Congress and the president are to-day the merest tools for these purposes. They are obliged to be, for they know that their own power, as rulers, so called, is at an end, the moment their credit with the blood-money loan-mongers fails. They are like a bankrupt in the hands of an extortioner. They dare not say nay to any demand made upon them. And to hide at once, if possible, both their servility and their crimes, they attempt to divert public attention, by crying out that they have “Abolished Slavery!” That they have “Saved the Country!” That they have “Preserved our Glorious Union!” and that, in now paying the “National Debt,” as they call it (as if the people themselves, all of them who are to be taxed for its payment, had really and voluntarily joined in contracting it), they are simply “Maintaining the National Honor!”

By “maintaining the national honor,” they mean simply that they themselves, open robbers and murderers, assume to be the nation, and will keep faith with those who lend them the money necessary to enable them to crush the great body of the people under their feet; and will faithfully appropriate, from the proceeds of their future robberies and murders, enough to pay all their loans, principal and interest.

The pretence that the “abolition of slavery” was either a motive or justification for the war, is a fraud of the same character with that of “maintaining the national honor.” Who, but such usurpers, robbers, and murderers as they, ever established slavery? Or what government, except one resting upon [57] the sword, like the one we now have, was ever capable of maintaining slavery? And why did these men abolish slavery? Not from any love of liberty in general—not as an act of justice to the black man himself, but only “as a war measure,” and because they wanted his assistance, and that of his friends, in carrying on the war they had undertaken for maintaining and intensifying that political, commercial, and industrial slavery, to which they have subjected the great body of the people, both white and black. And yet these impostors now cry out that they have abolished the chattel slavery of the black man—although that was not the motive of the war—as if they thought they could thereby conceal, atone for, or justify that other slavery which they were fighting to perpetuate, and to render more rigorous and inexorable than it ever was before. There was no difference of principle—but only of degree—between the slavery they boast they have abolished, and the slavery they were fighting to preserve; for all restraints upon men’s natural liberty, not necessary for the simple maintenance of justice, are of the nature of slavery, and differ from each other only in degree.

If their object had really been to abolish slavery, or maintain liberty or justice generally, they had only to say: All, whether white or black, who want the protection of this government, shall have it; and all who do not want it, will be left in peace, so long as they leave us in peace. Had they said this, slavery would necessarily have been abolished at once; the war would have been saved; and a thousand times nobler union than we have ever had would have been the result. It would have been a voluntary union of free men; such a union as will one day exist among all men, the world over, if the several nations, so called, shall ever get rid of the usurpers, robbers, and murderers, called governments, that now plunder, enslave, and destroy them.

Still another of the frauds of these men is, that they are now [58] establishing, and that the war was designed to establish, “a government of consent.” The only idea they have ever manifested as to what is a government of consent, is this—that it is one to which everybody must consent, or be shot. This idea was the dominant one on which the war was carried on; and it is the dominant one, now that we have got what is called “peace.”

Their pretences that they have “Saved the Country,” and “Preserved our Glorious Union,” are frauds like all the rest of their pretences. By them they mean simply that they have subjugated, and maintained their power over, an unwilling people. This they call “Saving the Country;” as if an enslaved and subjugated people—or as if any people kept in subjection by the sword (as it is intended that all of us shall be hereafter)—could be said to have any country. This, too, they call “Preserving our Glorious Union;” as if there could be said to be any Union, glorious or inglorious, that was not voluntary. Or as if there could be said to be any union between masters and slaves; between those who conquer, and those who are subjugated.

All these cries of having “abolished slavery,” of having “saved the country,” of having “preserved the union,” of establishing “a government of consent,” and of “maintaining the national honor,” are all gross, shameless, transparent cheats—so transparent that they ought to decieve no one—when uttered as justifications for the war, or for the government that has succeeded the war, or for now compelling the people to pay the cost of the war, or for compelling anybody to support a government that he does not want.

The lesson taught by all these facts is this: As long as mankind continue to pay “National Debts,” so-called,—that is, so long as they are such dupes and cowards as to pay for being cheated, plundered, enslaved, and murdered,—so long there will be enough to lend the money for those purposes; and with that [59] money a plenty of tools, called soldiers, can be hired to keep them in subjection. But when they refuse any longer to pay for being thus cheated, plundered, enslaved, and murdered, they will cease to have cheats, and usurpers, and robbers, and murderers and blood-money loan-mongers for masters.

APPENDIX.

Inasmuch as the Constitution was never signed, nor agreed to, by anybody, as a contract, and therefore never bound anybody, and is now binding upon nobody; and is, moreover, such an one as no people can ever hereafter be expected to consent to, except as they may be forced to do so at the point of the bayonet, it is perhaps of no importance what its true legal meaning, as a contract, is. Nevertheless, the writer thinks it proper to say that, in his opinion, the Constitution is no such instrument as it has generally been assumed to be; but that by false interpretations, and naked usurpations, the government has been made in practice a very widely, and almost wholly, different thing from what the Constitution itself purports to authorize. He has heretofore written much, and could write much more, to prove that such is the truth. But whether the Constitution really be one thing, or another, this much is certain—that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist.

Endnotes

*

See “No Treason, No. 2,” pages 5 and 6.

*

Suppose it be “the best government on earth,” does that prove its own goodness, or only the badness of all other governments?

*

The very men who drafted it, never signed it in any way to bind themselves by it, as a contract. And not one of them probably ever would have signed it in any way to bind himself by it, as a contract.

*

I have personally examined the statute books of the following States, viz.: Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Virginia, North Carolina, South Carolina, Georgia, Florida, Alabama, Mississippi, Tennessee, Kentucky, Ohio, Michigan, Indians, Illinois, Wisconsin, Texas, Arkansas, Missouri, Iowa, Minnesota, Nebraska, Kansas, Nevada, California, and Oregon, and find that in all these States the English statute has been re-enacted, sometimes with modifications, but generally enlarging its operations, and is now in force.

The following are some of the provisions of the Massachusetts statute:

“No action shall be brought in any of the following cases, that is to say: . . . .

“To charge a person upon a special promise to answer for the debt, default, or misdoings of another: . . . .

“Upon a contract for the sale of lands, tenements, hereditaments, or of any interest in, or concerning them; or

“Upon an agreement that is not to be performed within one year from the writing thereof:

“Unless the promise, contract, or agreement, upon which such action is brought, or some memorandum or note thereof, is in writing, and signed by the party to be charged therewith, or by some person thereunto by him awfully authorized: . . . .

“No contract for the sale of goods, wares, or merchandise, for the price of fifty dollars or more, shall be good or valid, unless the purchaser accepts and receives part of the goods so sold, or gives something in earnest to bind the bargain, or in part payment; or unless some note or memorandum in writing of the bargain is made and signed by the party to be charged thereby, or by some person thereunto by him lawfully authorized.”

*

And this two-thirds vote may be but two-thirds of a quorum—that is two-thirds of a majority—instead of two-thirds of the whole.

*

Of what appreciable value is it to any man, as an individual, that he is allowed a voice in choosing these public masters? His voice is only one of several millions.

T.26 A New Banking System: The Needful Capital for Rebuilding the Burnt District (1873).↩

Title

[26.] A New Banking System: The Needful Capital for Rebuilding the Burnt District (Boston: A. Williams & Co., 1873).

- also online Shorter Works, vol. 2: </titles/2292#lf1531-02_head_026>

Text

A NEW BANKING SYSTEM the NEEDFUL CAPITAL FOR REBUILDING THE BURNT DISTRICT.

A

NEW BANKING SYSTEM

the

NEEDFUL CAPITAL FOR REBUILDING THE BURNT DISTRICT.

By LYSANDER SPOONER.

BOSTON:

SOLD BY A. WILLIAMS & CO.

135 Washington Street.

1873

[2]

Entered according to Act of Congress, in the year 1873, By LYSANDER SPOONER, in the office of the Librarian of Congress, at Washington.

Printed by Warren Richardson, 112 Washington St.

[3]

CONTENTS.

- Chapter I.—A New Banking System, - page 5

- Chapter II.—Specie Payments, - - 12

- Chapter III.—No Inflation of Prices, - 21

- Chapter IV.—Security of the System, 35

- Chapter V.—The System as a Credit System, 41

- Chapter VI.—Amount of Currency Needed, 48

- Chapter VII.—Importance of the System to Massachusetts, - - - 59

- Chapter VIII.—The True Character of the “National” System, - - 70

- Chapter IX.—Amasa Walker’s Opinion of the Author’s System, - 75

[4]

The reader will understand that the ideas presented in the following pages admit of a much more thorough demonstration than can be given in so small a space. Such demonstration, if it should be necessary, the author hopes to give at a future time.

Boston, March, 1873.

[5]

CHAPTER I.: A NEW BANKING SYSTEM.

Under the banking system—an outline of which is hereafter given— the real estate of Boston alone—taken at only three-fourths its value, as estimated by the State valuation*—is capable of furnishing three hundred millions of dollars of loanable capital.

Under the same system, the real estate of Massachusetts—taken at only three-fourths its estimated value†—is capable of furnishing seven hundred and fifty millions of loanable capital.

The real estate of the Commonwealth, therefore, is capable of furnishing an amount of loanable capital more than twelve times as great as that of all the “National” Banks in the State‡; more than twice as great as that of all the “National” banks of the whole United States ($353,917,470); and equal to the entire amount ($750,000,000, or thereabouts) both of greenback and “National” bank currency of the United States.

[6]

It is capable of furnishing loanable capital equal to one thousand dollars for every male and female person, of sixteen years of age and upwards, within the Commonwealth; or two thousand five hundred dollars for every male adult.

It would scarcely be extravagant to say that it is capable of furnishing ample capital for every deserving enterprise, and every deserving man and woman, within the State; and also for all such other enterprises in other parts of the United States, and in foreign commerce, as Massachusetts men might desire to engage in.

Unless the same system, or some equivalent one, should be adopted in other States, the capital thus furnished in this State, could be loaned at high interest at the West and the South.

If adopted here earlier than in other States, it would enable the citizens of this State to act as pioneers in the most lucrative enterprises that are to be found in other parts of the country.

All this capital is now lying dead, so far as being loaned is concerned.

All this capital can be loaned in the form of currency, if so much can be used.

All the profits of banking, under this system, would be clear profits, inasmuch as the use of the real estate as banking capital, would not interfere at all with its use for other purposes.

The use of this real estate as banking capital would break up all monopolies in banking, and in all other business depending upon bank loans. It would diffuse credit much more widely than it has ever been diffused. It would reduce interest to the lowest rates to which [7] free competition could reduce it. It would give immense activity and power to industrial and commercial enterprise. It would multiply machinery, and do far more to increase production than any other system of credit and currency that has ever been invented. And being furnished at low rates of interest, would secure to producers a much larger share of the proceeds of their labor, than they now receive.

All this capital can be brought into use as fast as the titles to real estate can be ascertained, and the necessary papers be printed.

Legally, the system (as the author claims, and is prepared to establish) stands upon the same principle as a patented machine; and is, therefore, already legalized by Congress; and cannot, unless by a breach of the public faith, any more be prohibited, or taxed, either by Congress or this State, than can the use of a patented machine.

Every dollar of the currency furnished by this system would have the same value in the market as a dollar of gold; or so nearly the same value that the difference would be a matter of no appreciable importance.

The system would, therefore, restore specie payments at once, by furnishing a great amount of currency, that would be equal in value to specie.

The system would not inflate prices above their true and natural value, relatively to specie; for no possible amount of paper currency, every dollar of which is equal in value to specie, can inflate prices above their true and natural value, relatively to specie.

[8]

Whenever, if ever, the paper should not buy as much in the market as specie, it would be returned to the banks for redemption, and thus taken out of circulation. So that no more could be kept in circulation than should be necessary for the purchase and sale of property at specie prices.

The system would not tend to drive specie out of the country; although very little of it would be needed by the banks. It would rather tend to bring specie into the country, because it would immensely increase our production. We should, therefore, have much more to sell, and much less to buy. This would always give a balance in our favor, which would have to be paid in specie.

It is, however, a matter of no practical importance whether the system would bring specie into the country, or drive it out; for the volume and value of the currency would be substantially unaffected either by the influx or efflux of specie. Consequently industry, trade, and prices would be undisturbed either by the presence or absence of specie. The currency would represent property that could not be exported; that would always be here; that would always have a value as fixed and well known as that of specie; that would always be many times more abundant than specie can ever be; and that could always be delivered (in the absence of specie) in redemption of the currency. These attributes of the currency would render all financial contractions, revulsions, and disorders forever impossible.

The following is

[9]

An Outline of the System.

The principle of the system is that the currency shall represent an invested dollar, instead of a specie dollar.

The currency will, therefore, be redeemable by an invested dollar, except when redeemed by specie, or by being received in payment of debts due the banks.

The best capital will probably be mortgages and railroads; and these will very likely be the only capital which it will ever be expedient to use.

Inasmuch as railroads could not be used as capital, without a modification of their present charters, mortgages are probably the best capital that is immediately available.

Supposing mortgages to be the capital, they will be put into joint stock, held by trustees, and divided into shares of one hundred dollars each.

This stock may be called the Productive Stock, and will be entitled to the dividends.

The dividends will consist of the interest on the mortgages, and the profits of banking.

The interest on the mortgages should be so high—say six or seven per cent—as to make the Productive Stock worth ordinarily par of specie in the market, independently of the profits of banking.

Another kind of stock, which may be called Circulating Stock, will be created, precisely equal in amount to the Productive Stock, and divided into shares of one dollar each.

This Circulating Stock will be represented by certificates, scrip, or bills, of various denominations, like [10] our present bank bills—that is, representing one, two, three, five, ten, or more shares, of one dollar each.

These certificates, scrip, or bills of the Circulating Stock, will be issued for circulation as currency, as our bank bills are now.

In law, this Circulating Stock will be in the nature of a lien on the Productive Stock. It will be entitled to no dividends. Its value will consist, first, in its title to be received in payment of all dues to the bank; second, in its title to be redeemed, either in specie on demand, or in specie, with interest from the time of demand, before any dividends can be made to the bankers; and, third, in its title, when not redeemed with specie, to be redeemed (in sums of one hundred dollars each) by a transfer of a corresponding amount of the capital itself; that is, of the Productive Stock.

The holders of the Circulating Stock are, therefore, sure, first, to be able to use it (if they have occasion to do so) in payment of their dues to the bank; second, to get, in exchange for it, either specie on demand, or specie, with interest from the time of demand; or, third, a share of the capital itself, the Productive Stock; a stock worth par of specie in the market, and as merchantable as a share of railroad stock, or government stock, or any other stock whatever is now.

Whenever Productive Stock shall have been transferred in redemption of Circulating Stock, it (the Productive Stock) may be itself redeemed, or bought back, at pleasure, by the bankers, on their paying its face in specie, with interest (or dividends) from the time of the transfer; and must be so bought back, before any dividends can be paid to the original bankers.

[11]

The fulfilment of all these obligations, on the part of the bank, is secured by the fact that the capital and all the resources of the bank are in the hands of trustees, who are legally bound—before making any dividends to the bankers—to redeem all paper in the manner mentioned; and also to buy back all Productive Stock that shall have been transferred in redemption of the circulation.

Such are the general principles of the system. The details are too numerous to be given here. They will be found in the “Articles of Association of a Mortgage Stock Banking Company,” which the author has drawn up and copyrighted.

[12]

CHAPTER II.: SPECIE PAYMENTS.

Although the banks, under this system, make no absolute promise to pay specie on demand, the system nevertheless affords a much better practical guaranty for specie payments, than the old specie paying system (so called); and for these reasons, viz:

1. The banks would be so universally solvent, and so universally known to be solvent, that no runs would ever be made upon them for specie, through fear of their insolvency. They could, therefore, maintain specie payments with much less amounts of specie, than the old specie paying banks (so called) could do.

2. As there would be no fears of the insolvency of the banks, and as the paper would be more convenient than specie for purposes of trade, bills would rarely be presented for redemption—otherwise than in payment of debts due the banks—except in those cases where the holders desired to invest their money; and would therefore prefer a transfer of Productive Stock, to a payment in specie. If they wanted specie for exportation, they would buy it in the market (with the bills), as they would any other commodities for export.* It would, therefore, usually be only when they wanted an investment, and could find none so good as [13] the Productive Stock, that they would return their bills for redemption. And then they would return them, not really for the purpose of having them redeemed with specie, but in the hope of getting a transfer of Productive Stock, and holding it awhile, and drawing interest on it.

3. The banks would probably find it for their interest, as promoting the circulation of their bills, to pay, at all times, such small amounts of specie, as the public convenience might require.

4. If there should be any suspensions of specie payments, they would be only temporary ones, by here and there a bank separately, and not by all the banks simultaneously, as under the so called specie paying system. No general public inconvenience would therefore ever be felt from that cause.

5. If the banks should rarely, or never, pay specie on demand, that fact would bring no discredit upon their bills, and be no obstacle to their circulation at par with specie. It would be known that—unless bad notes had been discounted—all the bills issued by the banks, would be wanted to pay the debts due the banks. This would ordinarily be sufficient, of itself, to keep the bills at par with specie. It would also be known that, if specie were not paid on demand, it would either be paid afterwards, with interest from the time of demand; or Productive Stock, equal in value to specie in the market, would be transferred in redemption of the bills. The bills, therefore, would never depreciate in consequence of specie not being [14] paid on demand; nor would any contraction of the currency ever be occasioned on that account.

For the reasons now given, the system is practically the best specie paying system that was ever invented. That is to say, it would require less specie to work it; and also less to keep its bills always at par with specie. In proportion to the amount of currency it would furnish, it would not require so much as one dollar in specie, where the so called specie paying system would require a hundred. It would also, by immensely increasing our production and exports, do far more than any other system, towards bringing specie into the country, and preventing its exportation.

If it should be charged that the system supplies no specie for exportation; the answer is, that it is really no part of the legitimate business of a bank to furnish specie for exportation. Its legitimate business is simply to furnish credit and currency for home industry and trade. And it can never furnish these constantly, and in adequate amounts, unless it can be freed from the obligation to supply specie on demand for exportation. Specie should, therefore, always be merely an article of merchandise in the market, like any other; and should have no special—or, at least, no important—connection with the business of banking, except as furnishing the measure of value. If a paper currency is made payable in specie, on demand, very little of it can ever be issued, or kept in circulation; and that little will be so irregular and inconstant in amount as to cause continual and irremediable derangements. [15] But if a paper currency, instead of promising to pay specie on demand, promises only an alternative redemption, viz: specie on demand, or specie with interest from the time of demand, or other merchantable property of equal market value with specie—it can then be issued to an amount equal to such property; and yet keep its promises to the letter. It can, therefore, furnish all the credit and currency that can be needed; or at least many times more than the so called specie paying system ever did, or ever can, furnish. And then the interest, industry and trade of a nation will never be disturbed by the exportation of specie. And yet the standard of value will always be maintained.

The difference between the system here proposed, and the so called specie paying system—in respect to their respective capacities for furnishing credit and currency, and at the same time fulfilling their contracts to the letter—is as fifty to one, at the least, in favor of the former; probably much more than that.

Thus under the system now proposed, the real estate and railroads of the United States, at their present values, are capable of furnishing twenty thousand millions ($20,000,000,000) of paper currency; and furnishing it constantly, and without fluctuation, and every dollar of it will have an equal market value with gold. The contracts or certificates comprising it, can always be fulfilled to the letter; that is, the capital itself, (the Productive Stock,) represented by these certificates, can always be delivered, on demand, in redemption of the certificates, if the banks should be unable to redeem in specie.

[16]

On the other hand, it would be impossible to have so much as four hundred millions, ($400,000,000)—one fiftieth of the amount before mentioned—of so called specie paying paper currency; that is, a paper promising to pay specie on demand; and constantly able to fulfil its obligations.

It is of no appreciable importance that a paper currency should be payable on demand with specie. It is sufficient, if it be payable according to its terms, if only those terms are convenient and acceptable. For then the value of the currency will be known, and its contracts will be fulfilled to the letter. And when these contracts are fulfilled to the letter, then, to all practical purposes, specie payments are maintained. When, for example, a man promises to pay wheat, either on demand, or at a time specified, and he fulfils that contract to the letter, that, to all practical purposes, is specie payments; as much so as if the promise and payment had been made in coin. It is, therefore, the specific and literal fulfilment of contracts, that constitutes specie payments; and not the particular kind of property that is promised and paid.

The great secret, then, of having an abundant paper currency, and yet maintaining all the while specie payments, consists in having the paper represent property—like real estate, for example—that exists in large amounts, and can always be delivered, on demand, in redemption of the paper; and also in having this paper issued by the persons who actually own the property represented by it, and who can be compelled [17] by law to deliver it in redemption of the paper. And the great secret—if it be a secret—of having only a scanty currency, and of not having specie payments, consists in having the paper issued by a government that cannot fulfil its contracts, and has no intention of fulfilling them; and by banks that are not even required to fulfil them.

It is somewhat remarkable that after ten years experiment, we have not yet learned these apparently self-evident truths.

The palpable fact is that the advocates of the present “National” currency system,—that is, the stockholders in the present “National” banks,—do not wish for specie payments. They wish only to maintain, in their own hands, a monopoly of banking, and, as far as possible also, a monopoly of all business depending upon bank loans. They wish, therefore, to keep the volume of the currency down to its present amount. As an excuse for this, they profess a great desire for specie payments; and at the same time practice the imposture of declaring that specie payments will be impossible, if the amount of the currency be increased.

But all this is sheer falsehood and fraud. It is, of course, impossible to have specie payments, so long as the only currency issued is issued by a government that has nothing to redeem with, and has no intention of redeeming; and by banks that are not even required to redeem. But there is no obstacle to our having twenty times as much currency as we now have, and yet having specie payments—or the literal fulfilment [18] of contracts—if we will but suffer the business of banking to go into the hands of those who have property with which to redeem, and can be compelled by law to redeem.

It is with government paper, and bank paper, as it is with the paper of private persons; that is, it is worth just what can be delivered in redemption of it, and no more. We all understand that the notes of the Astors, and Stewarts, and Vanderbilts, though issued by millions, and tens of millions, are really worth their nominal values. And why? Solely because the makers of them have the property with which to redeem them in full, and can be made to redeem them in full. We also all understand that the notes of Sam Jones, and Jim Smith, and Bill Nokes, though issued for only five dollars, are not worth two cents on the dollar. And why? Solely because they have nothing to pay with; and cannot be made to pay.

Suppose, now, that these notes of Sam Jones, and Jim Smith, and Bill Nokes, for five dollars, were the only currency allowed by law; and that they were worth in the market but two cents on the dollar. And suppose that the few holders of these notes, wishing to make the most of them, at the expense of the rights of everybody else, should keep up a constant howl for specie payments; and should protest against any issue of the notes of the Astors, the Stewarts, and the Vanderbilts, upon the ground that such issue would inflate the currency, and postpone specie payments! What would we think of men capable of uttering such absurdities? [19] Would we in charity to their weakness, call them idiots? or would we in justice to their villainy, denounce them as impostors and cheats of the most transcendent and amazing impudence? And what would we think of the wits of forty millions of people, who could be duped by such preposterous falsehoods?

And yet this is scarcely an exaggerated picture of the fraud that has been practiced upon the people for the last ten years. A few men have secured to themselves the monopoly of a few irredeemable notes; and not wishing to have any competition, either in the business of banking, or in any business depending upon bank loans, they cry out for specie payments; and declare that no solvent or redeemable notes must be put into circulation, in competition with their insolvent and irredeemable ones, lest the currency be inflated, and specie payments be postponed!

And this imposture is likely to be palmed off upon the people in the future, as it has been in the past, if they are such dunces as to permit it to be done.

It is perfectly evident, then, that specie payments—or the literal fulfilment of contracts—does not depend at all upon the amount of paper in circulation as currency; but solely upon the fact whether, on the one hand, it be issued by those who have property with which to redeem it, and can be made to redeem it; or whether, on the other hand, it be issued by those who cannot redeem it, and cannot be made to redeem it.

When the people shall understand these simple, manifest truths, they will soon put an end to the monopoly, [20] extortion, fraud, and tyranny of the existing “National” system.

The “National” system, so called, is, in reality, no national system at all; except in the mere facts that it is called the national system, and was established by the national government. It is, in truth, only a private system; a mere privilege conferred upon a few, to enable them to control prices, property, and labor; and thus to swindle, plunder, and oppress all the rest of the people.

[21]

CHAPTER III.: NO INFLATION OF PRICES.

Section 1.

In reality there is no such thing as an inflation of prices, relatively to gold. There is such a thing as a depreciated paper currency. That is to say, there is such a thing as a paper currency, that is called by the same names as gold—to wit, money, dollars, &c.—but that cannot be redeemed in full; and therefore has not the same value as gold. Such a currency does not circulate at its nominal, but only at its real, value. And when such a currency is in circulation, and prices are measured by it, instead of gold, they are said to be inflated, relatively to gold. But, in reality, the prices of property are not thereby inflated at all relatively to gold. It is only the measuring of prices by a currency, that is called by the same names as gold, but that is really inferior in value to gold, that causes the apparent, not real, inflation of prices, relatively to gold.

To measure prices by a currency that is called by the same names as gold, but that is really inferior in value to gold, and then—because those prices are nominally higher than gold prices—to say that they are inflated, relatively to gold, is a perfect absurdity.

[22]

If we were to call a foot measure a yard, and were then to say that all cloth measured by it became thereby stretched to three times its length, relatively to a true yard-stick, we should simply make ourselves ridiculous. We should not thereby prove that the foot measure had really stretched the cloth, but only that it had taxed our brains beyond their capacity.

It is only irredeemable paper—irredeemable in whole or in part,—that ever appears to inflate prices, relatively to gold. But that it really causes no inflation of prices, relatively to gold, is proved by the fact that it no more inflates the prices of other property, than it does the price of gold itself. Thus we say that irredeemable paper, that is worth but fifty cents on the dollar, inflates the prices of commodities in general to twice their real value. By this we mean, that they are inflated to twice their value relatively to gold. And why do we say this? Solely because it takes twice as many of these irredeemable paper dollars to buy any commodity,—a barrel of flour for example,—as it would if the paper were equal in value to gold. But it also takes twice as many of these irredeemable paper dollars to buy gold itself, as it would if the paper were equal in value to gold. There is, therefore, just as much reason for saying that the paper inflates the price of gold, as there is for saying that it inflates the price of flour. It inflates neither. It is, itself, worth but fifty cents on the dollar; and it, therefore, takes twice as much of it to buy either flour or gold, as it would if the paper were of equal value with gold.

[23]

The value of the coins—in any nation that is open to free commerce with the rest of the world—is fixed by their value in the markets of the world; and can neither be reduced below that value, in that nation, by any possible amount of paper currency, nor raised above that value, by the entire disuse of a paper currency. Any increase of the currency, therefore, by means of paper representing other property than the coins—but having an equal value with the coins—is an absolute bona fide increase of the currency to that extent; and not a mere depreciation of it, as so many are in the habit of asserting.

Practically and commercially speaking, a dollar is not necessarily a specific thing, made of silver, or gold, or any other single metal, or substance. It is only such a quantum of market value as exists in a given piece of silver or gold. And it is the same quantum of value, whether it exist in gold, silver, houses, lands, cattle, horses, wool, cotton, wheat, iron, coal, or any other commodity that men desire for use, and buy and sell in the market.

Every dollar’s worth of vendible property in the world is equal in value to a dollar in gold. And if it were possible that every dollar’s worth of such property, in the world, could be represented, in the market, by a contract on paper, promising to deliver it on demand; and if every dollar’s worth could be delivered on demand, in redemption of the paper that represented it, the world could then have an amount of currency equal to the entire property of the world. And yet clearly every dollar of paper would be equal in value [24] to a dollar of gold; specie payments—or the literal fulfilment of contracts—could forever be maintained; and yet there could be no inflation of prices, relatively to gold. Such a currency would no more inflate the price of one thing, than of another. It would as much inflate the price of gold, as of any thing else. Gold would stand at its true and natural value as a metal; and all other things would also stand at their true and natural values, for their respective uses.

On this principle, if every dollar’s worth of vendible property in the United States could be represented by a paper currency; and if the property could all be delivered on demand, in redemption of the paper, such a currency would not inflate the prices of property at all, relatively to gold. Gold would still stand at its true and natural value as a metal, or at its value in the markets of the world. And all the property represented by the paper, would simply be measured by the gold, and would stand at its true and natural value, relatively to the gold.

We could then have some thirty thousand millions ($30,000,000,) of paper currency,—taking our property at its present valuation. And yet every dollar of it would be equal to a dollar of gold; and there could evidently be no inflation of prices, relatively to gold. No more of the currency could be kept in circulation, than should be necessary or convenient for the purchase and sale of property at specie prices.

It is probably not practicable to represent the entire property of the country by such contracts on paper as [25] would be convenient and acceptable as a currency. This is especially true of the personal property; although large portions even of this are being constantly represented by such contracts as bank notes, private promissory notes, checks, drafts, and bills of exchange; all of which are in the nature of currency; that is, they serve for the time as a substitute for specie; although some of them do not acquire any extensive, or even general, circulation.

But that it is perfectly practicable to represent nearly all the real estate of the country—including the railroads—by such contracts on paper as will be perfectly convenient and acceptable as a currency; and that every dollar of it can be kept always at par with specie throughout the entire country—that all this is perfectly practicable, the author offers the system already presented in proof.

Section 2.

To sustain their theory, that an abundant paper currency—though equal in value to gold—inflates prices, relatively to gold, its advocates assert that, for the time being, the paper depreciates the gold itself below its true value; or at least below that value which it had before the paper was introduced. But this is an impossibility; for in a country open to free commerce with the rest of the world, gold must always have the same value that it has in the markets of the world; neither more, nor less. No possible amount of [26] paper can reduce it below that value; as has been abundantly demonstrated in this country for the last ten years. Neither can any possible amount of paper currency reduce gold below its only true and natural value, viz.: its value as a metal, for uses in the arts. The paper cannot reduce the gold below this value, because the paper does not come at all in competition with it for those uses. We cannot make a watch, a spoon, or a necklace, out of the paper; and therefore the paper cannot compete with the gold for these uses.

That gold and silver now have, and can be made to have, no higher value, as a currency, than they have as metals for uses in the arts, is proved by the fact that doubtless not more than one tenth, and very likely not more than a twentieth, of all the gold and silver in the world (out of the mines), is in circulation as currency. In Asia, where these metals have been accumulating from time immemorial, and whither all the gold and silver of Europe and America—except what is caught up, and converted into plate, jewelry, &c.—is now going, and has been going for the last two thousand years, very little is in circulation as money. For the common traffic of the people, coins made of coarser metals, shells, and other things of little value, are the only currency. It is only for the larger commercial transactions, that gold and silver are used at all as a currency. The great bulk of these metals are used for plate, jewelry, for embellishing temples and palaces. Large amounts are also hoarded.

But that gold and silver coins now stand, and that they can be made to stand, as currency, only at their [27] true and natural values as metals, for uses in the arts; and that neither the use, nor disuse, of any possible amount of paper currency, in any one country—the United States, for example—can sensibly affect their values in that country, or raise them above, or reduce them below, their values in the markets of the world, the author hopes to demonstrate more fully at a future time, if it should be necessary to do so.

Section 3.

Another argument—or rather assertion—of those who say that any increase of the currency, by means of paper—though the paper be equal in value to gold—depreciates the value of the gold, or inflates prices relatively to gold, is this: They assert that, where no other circumstances intervene to affect the prices of particular commodities, such increase of the currency raises the prices of all kinds of property—relatively to gold—in a degree precisely corresponding with the increase of the currency.

This is the universal assertion of those who oppose a solvent paper currency; or a paper currency that is equal in value to gold.

But the assertion itself is wholly untrue. It is wholly untrue that an abundant paper currency—that is equal in value to gold—raises the prices of all commodities—relatively to gold—in a proportion corresponding to the increase of the currency. Instead of doing so, it causes a rise only in agricultural commodities, and real estate; while it causes a great fall in the prices of manufactures generally.

[28]

Thus the increased currency produces a directly opposite effect upon the prices of agricultural commodities and real estate, on the one hand, and upon manufactures, on the other.

The reasons are these:

Agriculture requires but very few exchanges, and can, therefore, be carried on with very little money. Manufactures, on the other hand, require a great many exchanges, and can, therefore, be carried on (except in a very feeble way), only by the aid of a great deal of money.

The consequence is, that the people of all those nations, that have but little money, are engaged mostly in agriculture. Very few of them are manufacturers. Being mostly engaged in agriculture, each one producing the same commodities with nearly all the others; and each one producing all he wants for his own consumption, there is no market, or very little market, for agricultural commodities; and such commodities, consequently, bear only a very small price.

Manufactured commodities, on the other hand, are very scarce and dear, for the sole reason that so few persons are engaged in producing them.

But let there be an increase of currency, and laborers at once leave agriculture, and become manufacturers.

As manufactured commodities usually bring much higher prices than agricultural, in proportion to the labor it costs to produce them, men usually leave agriculture, and go into manufacturing, to the full extent the increased currency will allow.

[29]

The consequence is that, under an abundant currency, manufactures become various, abundant, and cheap; where before they were scarce and dear.

But while, on the one hand, manufactures are thus becoming various, abundant, and cheap, agricultural commodities, on the other hand, are rising: and why? Not because the currency is depreciated, but simply because so many persons, who before—under a scanty currency—were engaged in agriculture, and produced all the agricultural commodities they needed, and perhaps more than they needed, for their own consumption, having now left agriculture, and become manufacturers, have become purchasers and consumers, instead of producers, of agricultural commodities.

Here the same cause—abundant currency—that has occasioned a rise in the prices of agricultural commodities, has produced a directly opposite effect upon manufactures. It has made the latter various, abundant, and cheap; where before they were scarce and dear.

On the other hand, when the currency contracts, manufacturing industry is in a great degree stopped; and the persons engaged in it are driven to agriculture as their only means of sustaining life. The consequence is, that manufactured commodities become scarce and dear, from non-production. At the same time, agricultural commodities become superabundant and cheap, from over-production and want of a market.

Thus an abundant currency, and a scanty currency, produce directly opposite effects upon the prices of [30] agricultural commodities, on the one hand, and manufactures, on the other.

The abundant currency makes manufactures various, abundant, and cheap, from increased production; while it raises the prices of agricultural commodities, by withdrawing laborers from the production of them, and also by creating a body of purchasers and consumers, to wit, the manufacturers.

On the other hand, a scanty currency drives men from manufactures into agriculture, and thus causes manufactures to become scarce and dear, from non-production; and, at the same time, causes agricultural commodities to fall in price, from over-production, and want of a market.

But whether, on the one hand, agricultural commodities are rising, and manufactured commodities are falling, under an abundant currency; or whether, on the other hand, manufactured commodities are rising, and agricultural commodities are falling, under a scanty currency, the value of the currency itself, dollar for dollar, remains the same in both cases.

The value of the currency, in either of these cases, is fixed, not at all by the amount in circulation, but by its value relatively to gold. And the value of gold, in any particular country, is fixed by its value as a metal, and its value in the markets of the world; and not at all by any greater or less quantity of paper that may be in circulation in that country.

[31]

Section 4.

But it is not alone agricultural products that rise in price under an abundant currency. Real estate also, of all kinds—agricultural, manufacturing, and commercial—rises under an abundant currency, and falls under a scanty currency. The reasons are these:

Agricultural real estate rises under an abundant currency, because agricultural products rise under such a currency, as already explained. Manufacturing real estate rises under an abundant currency, simply because—money being the great instrumentality of manufacturing industry—that industry is active and profitable under an abundant currency. Commercial real estate rises under an abundant currency, because, under such a currency, commerce, the exchange and distribution of agricultural and manufactured commodities, is active and profitable. Railroads, also, rise under an abundant currency, because, under such a currency, the transportation of freight and passengers is increased.

On the other hand, all kinds of real estate fall in price under a scanty currency, for these reasons, to wit: Agricultural real estate falls, because, manufactures having been in a great measure stopped, and the manufacturers driven into agriculture, there is little market for agricultural products, and those products bring only a small price. Manufacturing real estate falls, because, manufacturing industry having become impossible for lack of money, manufacturing real estate is lying dead, or unproductive. Commercial real estate falls, because [32] commerce, the exchange and distribution of agricultural and manufactured commodities, has ceased. Railroads fall in price, because, owing to the suspension of manufactures and commerce, there is little transportation of either freight or passengers.

Thus it will be seen that an abundant currency creates a great rise in agricultural products, and in all kinds of real estate—agricultural, manufacturing, and commercial, (including railroads); and, at the same time, causes manufactured commodities to become various, abundant, and cheap. While, on the other hand, a scanty currency causes agricultural commodities, and all kinds of real estate, to fall in price; and, at the same time, makes manufactured commodities scarce and dear.

It is a particularly noticeable fact, that those who claim that an abundant paper currency inflates the prices of all commodities, relatively to gold, never find it convenient to speak of the variety, abundance, and cheapness of manufactures, that exist under an abundant currency; but only of the high prices of agricultural commodities, and real estate.

The whole subject of prices—a subject that is very little understood, and that has been forever misrepresented, in order to justify restraints upon the currency, and keep it in a few hands—deserves a more extensive discussion; but the special purposes of this pamphlet do not admit of it here. But enough has probably now been said, to show that the great changes that take place in prices, under an abundant currency, on [33] the one hand, and a scanty currency, on the other, are not occasioned at all by any change in the value of the currency itself—dollar for dollar—provided the currency be equal in value to coin.

Enough, also, it is hoped, has been said, to show to all holders of either agricultural, manufacturing, or commercial real estate (including railroads), that the greater or less value of their property depends almost wholly upon the abundance or scarcity of currency; and that, inasmuch as, under the system proposed, they have the power, in their own hands, of creating probably all the currency that can possibly be used in manufactures and commerce, they have no one but themselves to blame, if they suffer the value of their property to be destroyed by any such narrow and tyrannical systems of currency and credit as those that now prevail, or those that have always heretofore prevailed.

By using their real estate as banking capital, they can not only get an income from it, in the shape of interest on money, but by supplying capital to mechanics and merchants, they create a large class who will pay high prices for agricultural products, and high prices and rents for manufacturing and commercial real estate; and who will also supply them, in return, with manufactured commodities of the greatest variety, abundance, and cheapness.

It is, therefore, mere suicide for the holders of real estate, who have the power of supplying an indefinite amount of capital for mechanics and merchants—and [34] who can make themselves and everybody else rich by supplying it—to suffer that power to be usurped by any such small body of men as those who now monopolize it, through mere favoritism, corruption, and tyranny, on the part of the government, and not because they have any claim to it.

[35]

CHAPTER IV.: SECURITY OF THE SYSTEM.

Supposing the property mortgaged to be ample, the system, as a system, is absolutely secure. The currency would be absolutely incapable of insolvency; for there could never be a dollar of the currency in circulation, without a dollar of capital (Productive Stock) in bank, which must be transferred in redemption of it, unless redemption be made in specie.

The capital alone, be it observed—independently of the notes discounted—must always be sufficient to redeem the entire circulation; for the circulation can never exceed the capital (Productive Stock). But the notes discounted are also holden by the trustees, and the proceeds of them must be applied to the redemption of the circulation. Supposing, therefore, the capital to be sufficient, and the notes discounted to be solvent, the redemption of the circulation is doubly secured.

What guarantee, then, have the public, for the sufficiency of the mortgages? They have these, viz.:

1. The mortgages, composing the capital of a bank, will be matters of public record, and everybody, in the neighborhood, will have the means of judging for himself of the sufficiency of the property holden. If the [36] property should be insufficient, the bank would be discredited at once; for the abundance of solvent currency would be so great, that no one would have any inducement to take that which was insolvent or doubtful.

2. By the Articles of Association, all the mortgages that make up the capital of a bank, are made mutually responsible for each other; because, if any one mortgage proves insufficient, no dividend can afterwards be paid to any of the bankers (mortgagors), until that deficiency shall have been made good by the company. The effect of this provision will be, to make all the founders of a bank look carefully to the sufficiency of each other’s mortgages; because no man will be willing to put in a good mortgage of his own, on equal terms with a bad mortgage of another man’s, when he knows that his own mortgage will have to contribute to making good any deficiency of the other. The result will be, that the mortgages, that go to make up the capital of any one bank, will be either all good, or all bad. If they are all good, the solvency of the bank will be apparent to all in the vicinity; and the credit of the bank will at once be established at home. If the mortgages are all bad, that fact, also, will be apparent to everybody in the vicinity, and the bank is at once discredited at home.

From the foregoing considerations, it is evident that nothing is easier than for a good bank to establish its credit, at home; and that nothing is more certain than that a bad bank would be discredited, at home, from the outset, and could get no circulation at all.

[37]

It is also evident that a bank, that has no credit at home, could get none abroad. There is, therefore, no danger of the public being swindled by bad banks.

A bank that is well founded, and that has established its credit at home, has so many ways of establishing its credit abroad, that there is no need that they be all specified here. The mode that seems most likely to be adopted, is the following, viz.:

When the capital shall consist of mortgages, it will be very easy for all the banks, in any one State, to make their solvency known to each other. There would be so many banks, that some system would naturally be adopted for this purpose.

Perhaps this system would be, that a standing committee, appointed by the banks, would be established in each State, to whom each bank in the State would be required to produce satisfactory evidence of its solvency, before its bills should be received by the other banks of the State.

When the banks, or any considerable number of the banks, of any particular State—Massachusetts, for instance,—shall have made themselves so far acquainted with each other’s solvency, as to be ready to receive each other’s bills, they will be ready to make a still further arrangement for their mutual benefit, viz: To unite in establishing one general agency in Boston, another in New York, and others in Philadelphia, Baltimore, Cincinnati, Chicago, St. Louis, New Orleans, San Francisco, &c., &c., where the bills of all these Massachusetts banks would be redeemed, either [38] from a common fund contributed for the purpose, or in such other way as might be found best. And thus the bills of all the Massachusetts banks would be placed at par at all the great commercial points.

Each bank, belonging to the association, might print on the back of its bills, “Redeemable at the Massachusetts Agencies in Boston, New York, Philadelphia, &c.”

In this way, all the banks of each State might unite to establish a joint agency in every large city, throughout the country, for the redemption of all their bills. In doing so, they would not only certify, but make themselves responsible for, the solvency of each other’s bills.

The banks might safely make permanent arrangements of this kind with each other; because the permanent solvency of all the banks might be relied on.

The permanent solvency of all the banks might be relied on, because, under this system, a bank (whose capital consists of mortgages), once solvent, is necessarily forever solvent, unless in contingencies so utterly improbable as not to need to be taken into account. In fact, in the ordinary course of things, every bank would be growing more and more solvent; because, in the ordinary course of things, the mortgaged property would be constantly rising in value, as the wealth and population of the country should increase. The exceptions to this rule would be so rare as to be unworthy of notice.

There is, therefore, no difficulty in putting the currency, furnished by each State, at par throughout the United States.

[39]

At the general agencies, in the great cities, the redemption would, doubtless, so far as necessary, be made in specie, on demand; because, at such points, especially in cities on the sea-board, there would always be an abundance of specie in the market as merchandise; and it would, therefore, be both for the convenience and interest of the banks to redeem in specie, on demand, rather than transfer a portion of their capital, and then pay interest on that capital until it should be redeemed, or bought back, with specie.

Often, however, and very likely even in the great majority of cases, a man from one State—as California, for example,—presenting Massachusetts bills for redemption at a Massachusetts agency—either in Boston, New York, or elsewhere—would prefer to have them redeemed with bills from his own State, California, rather than with specie.

If the system were adopted throughout the United States, the banks of each State would be likely to have agencies of this kind in all the great cities. Each of these agencies would exchange the bills of every other State for the bills of its own State; and thus the bills of each State would find their way home, without any demand for their redemption in specie having ever been made.

Where railroads were used as capital, all the banks in the United States could form one association, of the kind just mentioned, to establish agencies at all the great commercial points, for the redemption of their bills.

[40]

Of course each railroad would receive the bills of all other roads, for fare and freight.

Thus all railroad currency, under this system, would be put at par throughout the United States.

[41]

CHAPTER V.: THE SYSTEM AS A CREDIT SYSTEM.

Section 1.

Perhaps the merits of the system, as a credit system, cannot be better illustrated than by comparing the amount of loanable capital it is capable of supplying, with the amount which the present “National” banks (so called) are capable of supplying.

If we thus compare the two systems, we shall find that the former is capable of supplying more than fifty times as much credit as the latter.

Thus the entire circulation authorized by all the “National” banks,* is but three hundred and fifty-four millions of dollars ($354,000,000).

But the real estate and railroads of the country are probably worth twenty thousand millions of dollars ($20,000,000,000). This latter sum is fifty-six times greater than the former; and is all capable of being loaned in the form of currency.

Calling the population of the country forty millions (40,000,000), the “National” system is capable of supplying not quite nine dollars ($9) of loanable capital [42] to each individual of the whole population. The system proposed is capable of supplying five hundred dollars ($500) of loanable capital to each individual of the whole population.

Supposing one half the population (male and female) to be sixteen years of age and upwards, and to be capable of producing wealth, and to need capital for their industry, the “National” system would furnish not quite eighteen dollars ($18) for each one of them, on an average. The other system is capable of furnishing one thousand dollars $1,000) for each one of them, on an average.

Supposing the adults (both male and female) of the country to be sixteen millions (16,000,000), the “National” system is capable of furnishing only twenty-two dollars and twelve and a half cents ($22.12½) to each one of these persons, on an average. The system proposed is capable of furnishing twelve hundred and fifty dollars ($1,250) to each one, on an average.

Supposing the number of male adults in the whole country to be eight millions (8,000,000), the “National” system is capable of furnishing only forty-four dollars and twenty-five cents ($44.25) to each one. The other system is capable of furnishing twenty-five hundred dollars ($2,500) to each one.

The present number of “National” banks is little less than two thousand (2,000). Calling the number two thousand (2,000), and supposing the $354,000,000 of circulation to be equally divided between them, each bank would be authorized to issue $177,000.

[43]

Under the proposed system, the real estate and railroads of the country are capable of furnishing one hundred thousand (100,000) banks, having each a capital of two hundred thousand dollars ($200,000); or it is capable of furnishing one hundred and twelve thousand nine hundred and ninety-four (112,994) banks, having each a capital ($177,000), equal, on an average, to the capital of the present “National” banks. That is, this system is capable of furnishing fifty-six times as many banks as the “National” system, having each the same capital, on an average, as the “National” banks.

Calling the number of the present “National” banks two thousand (2,000), and the population of the country forty millions (40,000,000), there is only one bank to 20,000 people, on an average; each bank being authorized to issue, on an average, a circulation of $177,000.

Under the proposed system, we could have one bank for every five hundred (500) persons; each bank being authorized to issue $200,000; or $23,000 each more than the “National” banks.

These figures give some idea of the comparative capacity of the two systems to furnish credit.

Under which of these two systems, now, would everybody, who needs credit, and deserves it, be most likely to get it? And to get all he needs to make his industry most productive? And to get it at the lowest rates of interest?

The proposed system is as much superior to the old specie paying system (so called)—in respect to the [44] amount of loanable capital it is capable of supplying—as it is to the present “National” system.

Section 2.

But the proposed system has one other feature, which is likely to be of great practical importance, and which gives it a still further superiority—as a credit system—over the so-called specie paying system. It is this:

The old specie paying system (so called) could add to the loanable capital of the country, only by so much currency as it could keep in circulation, over and above the amount of specie that it was necessary to keep on hand for its redemption. But the amount of loanable capital which the proposed system can supply, hardly depends at all upon the amount of its currency that can be kept in circulation. It can supply about the same amount of loanable capital, even though its currency should be returned for redemption immediately after it is issued. It can do this, because the banks, by paying interest on the currency returned for redemption—or, what is the same thing, by paying dividends on the Productive Stock transferred in redemption of the currency—can postpone the payment of specie to such time as it shall be convenient for them to pay it.

All that would be necessary to make loans practicable on this basis, would be, that the banks should receive a higher rate of interest on their loans than they would have to pay on the currency returned for [45] redemption; that is, on the Productive Stock transferred in redemption of the currency.

The rate of interest received by the banks, on the loans made by them, would need to be so much higher than that paid by them, on currency returned for redemption, as to make it an object for them to loan more of their currency than could be kept in circulation. Subject to this condition, the banks could loan their entire capitals, whether much or little of it could be kept in circulation.

For example, suppose the banks should pay six per cent. interest on currency returned for redemption—(or as dividends on the Productive Stock transferred in redemption of such currency)—they could then loan their currency at nine per cent. and still make three per cent. profits, even though the currency loaned should come back for redemption immediately after it was issued.

But this is not all. Even though the banks should pay, on currency returned for redemption, precisely the same rate of interest they received on loans—say six per cent.—they could still do business, if their currency should, on an average, continue in circulation one half the time for which it was loaned; for then the banks would get three per cent. net on their loans, and this would make their business a paying one.

But the banks would probably do much better than this; for bank credits would supersede all private credits; and the diversity and amount of production would be so great that an immense amount of currency [46] would be constantly required to make the necessary exchanges. And whatever amount should be necessary for making these exchanges, would, of course, remain in circulation. However much currency, therefore, should be issued, it is probable that, on an average, it would remain in circulation more than half the time for which it was loaned.

Or if the banks should pay six per cent. interest on currency returned for redemption; and should then loan money, for six months, at eight per cent. interest; and this currency should remain in circulation but one month; the banks would then get eight per cent. for the one month, and two per cent. net for the other five months; which would be equal to three per cent. for the whole six months. Or if the currency should remain in circulation two months, the banks would then get eight per cent. for the two months, and two per cent. net for the other four months; which would be equal to four per cent. for the whole six months. Or if the currency should remain in circulation three months, the banks would then get eight per cent. for three months, and two per cent. net for the other three months; which would be equal to five per cent. for the whole six months. Or if the currency should remain in circulation four months, the banks would then get eight per cent. for the four months, and two per cent. net for the other two months; which would be equal to six per cent. for the whole six months. Or if the currency should remain in circulation five months, the banks would then get eight per cent. for the five [47] months, and two per cent. net for the other month; which would be equal to seven per cent. for the whole six months.

The banks would soon ascertain, by experiment, how long their currency was likely to remain in circulation; and what rate of interest it was therefore necessary for them to charge to make their business a paying one. And that rate, whatever it might be, the borrowers would have to pay. Subject to this condition, the banks could always loan their entire capitals.

[48]

CHAPTER VI.: AMOUNT OF CURRENCY NEEDED.

It is of no use to say that we do not need so much currency as the proposed system would supply; because, first, if we should not need it, we shall not use it. Every dollar of paper will represent specific property that can be delivered on demand in redemption of it, and that will have the same market value as gold. The paper dollar, therefore, will have the same market value as the gold dollar, or as a dollar’s worth of any other property; and no one will part with it, unless he gets in exchange for it something that will serve his particular wants better; and no one will accept it, unless it will serve his particular wants better than the thing he parts with. No more paper, therefore, can circulate, than is wanted for the purchase and sale of commodities at their true and natural values, as measured by gold.

Secondly, we do not know at all how much currency we do need. That is something that can be determined only by experiment. We know that, heretofore, whenever currency has been increased, industry and traffic have increased to a corresponding extent. And they would unquestionably increase to an extent far beyond any thing the world has ever seen, if only [49] they were aided and permitted by an adequate currency.

We, as yet, know very little what wealth mankind are capable of creating. It is only within a hundred years, or a little more, that any considerable portion of them have really begun to invent machinery, and learned that it is only by machinery that they can create any considerable wealth. But they have not yet learned—at least, they profess not to have learned—that money is indispensable to the practical employment of machinery; that it is as impossible to operate machinery without money, as it is to operate it without wind, water, or steam. When they shall have learned, and practically accepted, this great fact, and shall have provided themselves with money, wealth will speedily become universal. And it is only those who would deplore such a result, or those who are too stupid to see the palpable and necessary connection between money and manufacturing industry, who resist the indefinite increase of money.

It is scarcely a more patent fact that land is the indispensable capital for agricultural industry, than it is that money is the indispensable capital for manufacturing industry. Practically, everybody recognizes this fact, and virtually acknowledges it; although, in words, so many deny it. Men as deliberately and accurately calculate the amount of machinery that a hundred dollars in money will operate, as they do the amount of machinery that a ton of coal, or a given amount of water, will operate. They calculate much [50] more accurately the amount of manufactured goods a hundred dollars will produce, than they do the amount of grain, grass, or vegetables an acre of land will produce. They no more expect to see mechanics carrying on business for themselves without money, than they do to see agricultural laborers carrying on farming without land, or than they do to see sailors going to sea without ships. They know that all mechanical, as well as agricultural, laborers, who have not the appropriate capital for their special business, must necessarily stand idle, or become mere wage-laborers for others, at such particular employments as the latter may dictate, and at such prices as the latter may see fit to pay.

All these things attest the perfect knowledge that men have, that a money capital is indispensable to manufacturing industry; whatever assertions they may make to the contrary.

They know, therefore, that prohibitions upon money are prohibitions upon industry itself; that there can be no such thing as freedom of industry, where there is not freedom to lend and hire capital for such industry.

Every one knows, too—who knows any thing at all on such a subject—that it is, intrinsically, as flagrant a tyranny, as flagrant a violation of men’s natural rights, for a government to forbid the lending and hiring of money for manufacturing industry, as it is to forbid the lending and hiring of land, or agricultural implements, for agricultural industry, or the lending [51] and hiring of ships for maritime industry. They know that it is as flagrant a tyranny, as flagrant a violation of men’s natural rights, to forbid one man to lend another money for mechanical industry, as it would be to forbid the former to lend the latter a house to live in, a shop to work in, or tools to work with.

It is, therefore, a flagrant, manifest tyranny, a flagrant, manifest violation of men’s natural rights, to lay any conditions or restrictions whatever upon the business of banking—that is, upon the lending and hiring of money—except such as are laid upon all other transactions between man and man, viz.: the fulfilment of contracts, and restraints upon force and fraud.

A man who is without capital, and who, by prohibitions upon banking, is practically forbidden to hire any, is in a condition elevated but one degree above that of a chattel slave. He may live; but he can live only as the servant of others; compelled to perform such labor, and to perform it at such prices, as they may see fit to dictate. And a government, which, at this day, subjects the great body of the people—or even any portion of them—to this condition, is as fit an object of popular retribution as any tyranny that ever existed.

To deprive mankind of their natural right and power of creating wealth for themselves, is as great a tyranny as it is to rob them of it after they have created it. And this is done by all laws against honest banking.

All these things are so self-evident, so universally known, that no man, of ordinary mental capacity, can [52] claim to be ignorant of them. And any legislator, who disregards them, should be taught, by a discipline short, sharp, and decisive, that his power is wholly subordinate to the natural rights of mankind.

It is, then, one of man’s indisputable, natural rights to lend and hire capital in any and every form and manner that is intrinsically honest. And as money, or currency, is the great, the indispensable instrumentality in the production and distribution of wealth; as it is the capital, the motive power, that sets all other instrumentalities in motion; as it is the one thing, without which all the other great agencies of production—such as science, skill, and machinery—are practically paralyzed; to say that we need no more of it, and shall have no more of it, than we now have, is to say that we need no more wealth, and shall have no more wealth, and no more equal or equitable distribution of wealth, than we now have. It is to say that the mass of mankind—the laborers, the producers of wealth—need not to produce, and shall not be permitted to produce, wealth for themselves, but only for others.

For a government to limit the currency of a people, and to designate the individuals (or corporations) who shall have the control of that currency, is, manifestly, equivalent to saying there shall be but so much industry and wealth in the nation, and that these shall be under the special control, and for the special enjoyment, of the individuals designated; and, of course, that all other persons shall be simply their dependants and servants; receiving only such prices for their property, [53] and such compensation for their labor, as these few holders of the currency shall see fit to give for them.

The effect of these prohibitions upon money, and consequently upon industry, are everywhere apparent in the poverty of the great body of the people.

At the present time, the people of this country certainly do not produce one third, very likely not one fifth, of the wealth they might produce. And the little they do produce is all in the hands of a few. All this is attributable to the want of currency and credit, and to the consequent want of science, skill, machinery, and working capital.

Of the twenty million persons, male and female, of sixteen years of age and upwards—capable of producing wealth—certainly not one in five has the science, skill, implements, machinery, and capital necessary to make his or her industry most effective; or to secure to himself or herself the greatest share in the products of his or her own industry. A very large proportion of these persons—nearly all the females, and a great majority of the males—persons capable of running machinery, and of producing each three, five, or ten dollars of wealth per day, are now without science, skill, machinery, or capital, and are either producing nothing, or working only with such inferior means, and at such inferior employments, as to make their industry of scarcely any value at all, either to themselves or others, beyond the provision of the coarsest necessaries of a hard and coarse existence. [54] And this is all owing to the lack of money; or rather to the lack of money and credit.

There are, doubtless, in the country, ten million (10,000,000) persons, male and female—sixteen years of age and upwards—who are naturally capable of creating from three to five dollars of wealth per day, if they had the science, skill, machinery, and capital which they ought to have, and might have; but who, from the want of these, are now creating not more than one dollar each per day, on an average; thus occasioning a loss to themselves and the country of from twenty to forty millions of dollars per day, for three hundred days in a year; a sum equal to from six to twelve thousand millions per annum; or three to six times the amount of our entire national debt.

And there are another ten million of persons—better supplied, indeed, with capital, machinery, &c., than the ten million before mentioned—but who, nevertheless, from the same causes, are producing far less than they might.

The aggregate loss to the country, from these causes, is, doubtless, equal to from ten to fifteen thousand millions per year; or five, six, or seven times the amount of the entire national debt.

In this estimate no account is taken of the loss suffered from our inability—owing simply to a want of money—to bring to this country, and give employment to, the millions of laborers, in Europe and Asia, who desire to come here, and add the products of their labor to our national wealth.

[55]

It is, probably, no more than a reasonable estimate to suppose that the nation, as a nation, is losing twenty thousand millions of dollars ($20,000,000,000) per annum—about ten times the amount of our national debt—solely for the want of money to give such employment as they need, to the population we now have, and to those who desire to come here from other countries.

Among the losses we suffer, from the causes mentioned, the non-production of new inventions is by no means the least. As a general rule, new inventions are made only where money and machinery prevail. And they are generally produced in a ratio corresponding with the amount of money and machinery. In no part of the country are the new inventions equal in number to what they ought to be, and might be. In three fourths of the country very few are produced. In some, almost none at all. The losses from this cause cannot be estimated in money.

The government, in its ignorance, arrogance, and tyranny, either does not see all this, or, seeing it, does not regard it. While these thousands of millions are being lost annually, from the suppression of money, and consequently of industry, and while three fourths of the laborers of the country are either standing idle, or, for the want of capital, are producing only a mere fraction of what they might produce, a two-pence-ha’-penny Secretary of the Treasury can find no better employment for his faculties, than in trying, first, to reduce the rate of interest on the public debt one per [56] cent.—thereby saving twenty millions a year, or fifty cents for each person, on an average! And, secondly, in paying one hundred millions per annum of the principal; that is, two and a half dollars for each person, on an average! And he insists that the only way to achieve these astounding results, is to deprive the people at large of money! To destroy, as far as possible, their industry! To deprive them, as far as possible, of all power to manufacture for themselves! And to compel them to pay, to the few manufacturers it has under its protection, fifty or one hundred per cent. more for their manufactures than they are worth!

He has been tugging at this tremendous task four years, or thereabouts. And he confidently believes that if he can be permitted to enforce this plan for a sufficient period of years, in the future, he will ultimately be able to save the people, annually, fifty cents each, on an average, in interest! and also continue to pay, annually, two dollars and a half for each person, on an average, of the principal, of the national debt!

He apparently does not know, or, if he knows, it is, in his eyes, a matter of comparatively small moment, that this saving of $20,000,000 per annum in interest, and this payment of $100,000,000 per annum of principal, which he proposes to make on behalf of the people, are not equal to what two days—or perhaps even one day—of their industry would amount to, if they were permitted to enjoy their natural rights of lending and hiring capital, and producing such wealth as they please for themselves.

[57]

He apparently does not know, or, if he knows, it is with him a small matter, that if the people were permitted to enjoy their natural freedom in currency and credit, and consequently their natural freedom in industry, they could pay the entire national debt three, four, or a half dozen times over every year, more easily than they can save the $20,000,000, and pay the $100,000,000, annually, by the process that he adopts for saving and paying them.

And yet this man, and his policy, represent the government and its policy. The president keeps him in office, and Congress sustain him in his measures.

In short, the government not only does not offer, but is apparently determined not to suffer, any such thing as freedom in currency and credit, or, consequently, in industry. It is, apparently, so bent upon compelling the people to give more for its few irredeemable notes than they are worth; and so bent upon keeping all wealth, and all means of wealth, in the hands of the few—upon whose money and frauds it relies for support—that it is determined, if possible, to perpetuate this state of things indefinitely. And it will probably succeed in perpetuating it indefinitely—under cover of such false pretences as those of specie payments, inflation of prices, reducing the interest, and paying the principal, of the national debt, &c.—unless the people at large shall open their eyes to the deceit and robbery that are practised upon them; and, by establishing [58] freedom in currency and credit—and thereby freedom in industry and commerce—end at once and forever the tyranny that impoverishes and enslaves them.

[59]

CHAPTER VII.: IMPORTANCE OF THE SYSTEM TO MASSACHUSETTS.

Section 1.

The tariffs, by means of which a few monied men of Massachusetts have so long plundered the rest of the country, and on which they have so largely relied for their prosperity, will not much longer be endured. The nation at large has no need of tariffs. Money is the great instrumentality for manufacturing. And the nation needs nothing but an ample supply of money—in addition to its natural advantages—to enable our people to manufacture for themselves much more cheaply than any other people can manufacture for us.

To say nothing of the many millions who, if we had the money necessary to give them employment, might be brought here from Europe and Asia, and employed in manufactures, more than half the productive power of our present population—in the South and West much more than half—is utterly lost for the want of money, and the consequent want of science, skill, and machinery. And yet those few, who monopolize the present stock of money, insist that they must have tariffs to enable them to manufacture at all. And the nation is duped by these false pretences.

[60]

To give bounties to encourage manufactures, and at the same time forbid all but a favored few to have money to manufacture with, is just as absurd as it would be to give bounties to encourage manufactures, and at the same time forbid all but a favored few to have machinery of any kind to manufacture with. It is just as absurd as it would be to give bounties to encourage agriculture, and at the same time forbid all but a favored few to own land, or have cattle, horses, seed corn, seed wheat, or agricultural implements. It is just as absurd as it would be to give bounties to encourage navigation, and at the same time forbid all but a favored few to have ships.

The whole object of such absurdities and tyrannies is to commit the double wrong of depriving the mass of the people of all power to manufacture for themselves, and at the same time compel them to pay extortionate prices to the favored few who are permitted to manufacture.

When tariffs shall be abolished, Massachusetts will have no means of increasing her prosperity, nor even of perpetuating such poor prosperity as she now has,* except by a great increase of money; such an increase of money as will enable her skilled laborers and enterprising young men to get capital for such industries and enterprises as they may prefer to engage in here, rather than go elsewhere.

Even if Massachusetts were willing to manufacture [61] for the South and West, without a tariff, she could hope to do so only until the South and West should supply themselves with money. So soon as they shall supply themselves with money, they will be able to manufacture for themselves more cheaply than Massachusetts can manufacture for them. Their natural advantages for manufacturing are greatly superior to those of Massachusetts. They have the cheap food, coal, iron, lead, copper, wool, cotton, hides, &c., &c. They lack only money to avail themselves of these advantages. And, under the system proposed, their lands and railroads are capable of supplying all the money they need. And they will soon adopt that, or some other system. And they will then not only be independent of Massachusetts, but will be able to draw away from her her skilled laborers, and enterprising young men, unless she shall first supply them with the money capital necessary for such industries and enterprises as may induce them to remain. They will, of course, go where they can get capital, instead of staying where they can get none.

So great are the natural advantages of the South and West over those of Massachusetts, that it is doubtful how many of these men can be persuaded to remain, by all the inducements that capital can offer. But without such inducements it is certain they will all go.

And Massachusetts has no means of supplying this needed money, except by using her real estate as banking capital.

[62]

It is, therefore, plainly a matter of life or death to the holders of real estate in Massachusetts to use it for that purpose; for their real estate will be worth nothing when the skilled labor and the enterprising young men of Massachusetts shall have deserted her.

All this is so manifest as to need no further demonstration. And Massachusetts will do well to look the facts in the face before it is too late.

Section 2.

What prospect has Massachusetts under the present “National” system?

The Comptroller of the Currency, in his last annual report, says, that of the $354,000,000 of circulation authorized by law, Massachusetts has now $58,506,686. He says, further, that this is more than four times as much as she would be entitled to, if the currency were apportioned equally among the States, according to population; more than twice as much as she would be entitled to, if the circulation were apportioned among the States, according to their wealth; and three times as much as she is entitled to upon an apportionment made—as apportionments are now professedly made—half upon population, and half upon wealth.

The Comptroller further says, that a law of Congress, passed July 12, 1870, requiring him to withdraw circulation from those States having more than their just proportion, and to distribute it among those now having less than their just proportion, will require him to [63] withdraw “from thirty-six banks in the City of Boston, $11,403,000; [and] from fifty-three country banks of Massachusetts, $2,997,000.”

Thus the law requires $14,400,000 to be withdrawn from the present banks of Massachusetts.

When this shall have been done, she will have but $44,106,686 left. And as this will be more than three times her just proportion on a basis of population, and nearly twice her just share on a basis of wealth, there is no knowing how soon the remaining excess over her just share may be withdrawn.*

By the census of 1870, Massachusetts had a population of 1,457,351. She has now, doubtless, a population of 1,500,000. Calling her population 1,500,000, the $58,506,686 of circulation which she now has, is equal to $39 for each person, on an average. When $14,400,000 of this amount shall have been withdrawn, as the law now requires it to be, the circulation will be reduced to less than $30 for each person, on an average. If the circulation should be reduced to the proportion to which Massachusetts is entitled, on the basis of wealth—that is, to $25,098,600—she will then have less than $17 for each person, on an average. If the circulation should be reduced to the proportion to which Massachusetts is entitled on a basis of population—that is to $13,879,778—she will then have a trifle less than $9 for each person, on an average.

For years the industry of Massachusetts has been [64] greatly crippled for the want of bank credits, although her banks have been authorized to issue their notes to the amount of $58,506,686; or $39 to each person, on an average. What will her industry be when her banks shall be authorized to issue only $44,106,686, or $30 for each person, on an average? What will it be, if her bank issues shall be reduced to her proportion on a basis of wealth, to wit, $25,098,600; or less than $17 for each person, on an average? Or what will it be, if her bank circulation shall be reduced to her proportion on a basis of population, to wit, to $13,379,778; or less than $9 for each person, on an average?

In contrast with such contemptible sums as these, Massachusetts, under the system proposed, could have nine hundred millions ($900,000,000) of bank loans;* that is, $600 for every man, woman, and child, on an average; or $1,500 to each adult, male and female, on an average; or $3,000 to each male adult, on an average.

Which, now, of these two systems is most likely to secure and increase the prosperity of Massachusetts? Which is most likely to give to every deserving man and woman in the State, the capital necessary to make their industry most productive to themselves individually, and to the State? Which system is most likely to induce the skilled laborers and enterprising young men of Massachusetts to remain here? And which is most likely to drive them away?

[65]

Section 3.

But the whole is not yet told. The present “National” system is so burdened with taxes and other onerous conditions, that no banking at all can be done under it, except at rates of interest that are two or three times as high as they ought to be; or as they would be under the system proposed.

The burdens imposed on the present banks are probably equal to from six to eight per cent. upon the amount of their own notes that they are permitted to issue.

In the first place, they are required, for every $90 of circulation, to invest $100 in five or six per cent. government bonds.* This alone is a great burden to all that class of persons who want their capital for active business. It amounts to actual prohibition upon all whose property is in real estate, and therefore not convertible into bonds. And this is a purely tyrannical provision, inasmuch as real estate is a much safer and better capital than the bonds. Let us call this a burden of two per cent. on their circulation.

Next, is the risk as to the permanent value of the bonds. Any war, civil or foreign, would cause them to [66] drop in value, as the frost causes the mercury to drop in the thermometer. Even any danger of war would at once reduce them in value. Let us call this risk another burden of one per cent. on the circulation.

Next, every bank in seventeen or eighteen of the largest cities—Boston among the number—are required to keep on hand, at all times, a reserve—in dead capital (legal tenders)—“equal to at least twenty-five per centum,” and all other banks a similar reserve “equal to at least fifteen per centum,” “of the aggregate amount of their notes in circulation, and of their deposits.”

Doubtless, two thirds—very likely three fourths—of all the bank circulation and deposits are in the seventeen cities named. And as these city banks are required to keep a reserve of dead capital equal to twenty-five per cent., and all others a similar reserve equal to fifteen per cent., both on their circulation and deposits, this average burden on all the banks is, doubtless, equal to two per cent. on their circulation.

Next, the banks are required to pay to the United States an annual tax of one per cent. on their average circulation, and half of one per cent. on the amount of their deposits.

Here is another burden equal to at least one and a half per cent. on their circulation.

Then the capitals of the banks—the United States bonds—are made liable to State taxes to any extent, “not at a greater rate than is assessed upon the monied capital in the hands of individual citizens of such [67] State.” This tax is probably equal to one per cent. on their circulation.

Here, then, are taxes and burdens equal to seven and a half per cent. on their circulation.

Next, the banks are required to make at least five reports annually, to the Comptroller of the Currency, of their “resources and liabilities.” Also reports of “the amount of each dividend declared by the association.”

Then, too, the banks are restricted as to the rates of interest they are permitted to take.

Then “Congress may at any time alter, amend, or repeal this act;” and thus impose upon the banks still further taxes, conditions, restrictions, returns, and reports. Or it may at pleasure abolish the banks altogether.

All these taxes, burdens, and liabilities, cannot be reckoned at less than eight or nine per cent. on the circulation of the banks; a sum two or three times as great as the rate of interest ought to be; and two or three times as great as it would be under the system proposed.

And yet the banks must submit to all these burdens as a condition of being permitted to loan money at all. And they must make up—in their rates of interest—for all these burdens. Under this system, therefore, the rate of interest must always be two or three times as high as it ought to be.

The objections to the system, then, are, first, that it furnishes very little loanable capital; and, second, that [68] it necessarily raises the interest on that little to two or three times what it ought to be.

Such a system, obviously, could not be endured at all, but for these reasons, viz.: first, that, being a monopoly, those holding it are enabled to make enormous extortions upon borrowers; and, secondly, that these borrowers—most of whom are the bankers themselves—employ the money in the manufacture and sale of goods that are protected, by tariffs, from foreign competition, and for which they are thus enabled to get, say, fifty per cent. more than they are worth.

In this way, these bank extortions and tariff extortions are thrown ultimately upon the people who consume the goods which the bank capital is employed in producing and selling.

Thus the joint effect of the bank system and the tariff is, first, to deprive the mass of the people of the money capital that would enable them to manufacture for themselves; and, secondly, to compel them to pay extortionate prices for the few manufactures that are produced.

Under the system proposed, all these things would be done away. The West and the South, that are now relied on to pay all these extortions, would manufacture for themselves. Their lands and railroads would enable them to supply all the manufacturing capital that could be used. And they could supply it at one half, or one third, the rates now required by the “National” banks. Of course, Massachusetts could not—under [69] the “National” system—manufacture a dollar’s worth for the South and West. She could not keep her manufacturing laborers. They would all go where they could get cheap capital, cheap supplies, and good markets. And then the manufacturing industry of Massachusetts, and with it the value of her real estate, will have perished from the natural and legitimate effect of her meanness, extortion, and tyranny.

Looking to the future, then, there is no State in the Union—certainly none outside of New England—that has a greater interest in supplying her mechanics with the greatest possible amount of capital; or in supplying it at the lowest possible rates of interest. And this can be done only by using her real estate as banking capital.

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CHAPTER VIII.: THE TRUE CHARACTER OF THE “NATIONAL” SYSTEM.

Section 1.

Under the “National” system there are less than 2,000 banks. But let us call them 2,000.

Calling the population of the country forty millions, there is but one bank to 20,000 people.

And this one bank is, in law, a person; and only a single person. In lending money, it acts, and can act, only as a unit. Its several stockholders cannot act separately, as so many individuals, in lending money.

So far, therefore, as this system is concerned, there is but one money lender for twenty thousand people!

Of these 20,000 people, ten thousand (male and female) are sixteen years of age and upwards, capable of creating wealth, and requiring capital to make their labor most productive.

Yet, so far as this system is concerned, there is but one person authorized to lend money to, or for, these ten thousand, who wish to borrow.

And this one money lender is one who, proverbially “has no soul.” It is not a natural human being. It is a legal, an artificial, and not a natural, person. It is neither masculine nor feminine. It has not the ordinary [71] human sympathies, and is not influenced by the ordinary human motives of action. It is no father, who might wish to lend money to his children, to start them in life. It is no neighbor, who might wish to assist his neighbor. It is no citizen, who might wish to promote the public welfare. It is simply a nondescript, created by law, that wants money, and nothing else.

Moreover, it has only $177,000 to lend to these 10,000 borrowers; that is, a fraction less than $18, on an average, for each one!

What chance of borrowing capital have these ten thousand persons, who are forbidden to borrow, except from this one soulless person, who has so little to lend?

If money lenders must be soulless—as, perhaps, to some extent, they must be—it is certainly of the utmost importance that there be so many of them, and that they may have so much money to lend, as that they may be necessitated, by their own selfishness, to compete with each other, and thus save the borrowers from their extortions.

But the “National” system says, not only that the money lender shall be a soulless person, and one having only a little money to lend, but that he shall also have the whole field—a field of 10,000 borrowers—entirely to himself!

It says that this soulless person shall have this whole field to himself, notwithstanding he has so little money to lend, and notwithstanding there are many other persons standing by, having, in the aggregate, fifty times [72] as much money to lend as he; and desiring to lend it at one half, or one third, the rates he is demanding, and extorting!

It says, too, that he shall have this whole field to himself, notwithstanding that ninety-nine one-hundredths of those who desire to borrow, are sent away empty! and are thereby condemned—so far as such a system can condemn them—to inevitable poverty!

Section 2.

But further. Each one of these 2,000 legal, or artificial, persons, who alone are permitted to lend money, is made up of, say, fifty actual, or natural, persons, to whom alone, it is well known, that this legal person will lend it!

These 2,000 legal persons, then, who alone are permitted to lend money, are made up of 100,000 actual persons, who alone are to borrow it.

These 100,000 actual persons, who compose the legal persons, do not, then, become bankers because they have money to lend to others, but only because they themselves want to borrow!

Thus when the system says that they alone shall lend, it virtually says that they alone shall borrow; because it is well known that, in practice, they will lend only to themselves.

In short, it says that only these 100,000 men—or one in four hundred of the population—shall have liberty either to lend, or borrow, capital! Such capital [73] as is indispensable to every producer of wealth, if he would control his own industry, or make his labor most productive.

Consequently, it says, practically—so far as it is in its power to say—that only one person in four hundred of the population shall be permitted to have capital; or, consequently, to labor directly for himself; and that all the rest of the four hundred shall be compelled to labor for this one, at such occupations, and for such wages, as he shall see fit to dictate.

In short, the system says—as far as it can say—that only 100,000 persons—only one person in four hundred of the population—shall be suffered to have any money! And, consequently, that all the property and labor of the thirty-nine million nine hundred thousand (39,900,000) persons shall be under the practical, and nearly absolute, control of these 100,000 persons! It says that thirty-nine million nine hundred thousand (39,900,000) persons shall be in a state of industrial and commercial servitude (to the 100,000), elevated but one degree above that of chattel slavery.

And this scheme is substantially carried out in practice. These 100,000 men call themselves “the business men” of the country. By this it is meant, not that they are the producers of wealth, but only that they alone handle the money! Other persons are permitted to sell only to them! to buy only of them! to labor only for them! and to sell to, buy of, and labor for, them, only at such prices as these 100,000 shall dictate.

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These 100,000 so called “business men,” not only own the government, but they are the government. Congress is made up of them, and their tools. And they hold all the other departments of the government in their hands. Their sole purpose is power and plunder; and they suffer no constitutional or natural law to stand in the way of their rapacity.

How many times, during the last presidential canvass, were we told that “the business men” of the country wished things to remain as they were? Having gathered all power into their own hands, having subjected all the property and all the labor of the country to their service and control, who can wonder that they were content with things as they were? That they did not desire any change? And their money and their frauds being omnipotent in carrying elections, there was no change.

These 100,000 “business men,” having secured to themselves the control of all bank credits, and thereby the control of all business depending on bank loans; having also obtained control of the government, enact that foreigners shall not be permitted to compete with them, by selling goods in our markets, except under a disadvantage of fifty to one hundred per cent.

And this is the industrial and financial system which the “National” bank system establishes—so far as it can establish it. And this is the scheme by means of which these 100,000 men cripple, and more than half paralyze, the industry of forty millions of people, and secure to themselves so large a portion of the proceeds of such industry as they see fit to permit.

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CHAPTER IX.: AMASA WALKER’S OPINION OF THE AUTHOR’S SYSTEM

As Mr. Amasa Walker is considered the highest authority in the country, in opposition to all paper currency that does not represent gold or silver actually on hand, it will not be impertinent to give his opinion of the system now proposed.

He reviewed it in a somewhat elaborate article, entitled “Modern Alchemy,” published in the Bankers Magazine (N. Y.) for December, 1861.

That he had no disposition to do any thing but condemn the system to the best of his ability, may be inferred from the following facts.

After describing the efforts of the old alchemists to transmute the baser metals into gold, he represents all attempts to make a useful paper currency as attempts “to transmute paper into gold.” He says that the idea that paper can be made to serve the purposes of money is “a perfectly cognate idea” with that of the old alchemists, that the baser metals can be transmuted into gold. (p. 407.)

He also informs us that—

“It is perfectly impracticable to transmute paper into gold to any extent or degree whatever, and that all attempts to do so (beneficially to the trade and [76] commerce of the world) are as absurd and futile as the efforts of the old alchemists to change the baser metals into the most precious.” (p. 415).

These extracts are given to show the spirit and principle of his article, and the kind of arguments he employs against all paper that represents other property than coin; even though that property have equal value with coin in the market.

Yet he says:—

“One thing we cheerfully accord to Mr. Spooner’s system—it is an honest one. Here is no fraud, no deception. It makes no promise that it cannot fulfil. It does not profess to be convertible into specie [on demand]. It is the best transmutation project we have seen.” (p. 413).

When he says that “it is the best transmutation project he has seen,” the context shows that he means to say that it comes nearer to transmuting paper into gold, than any other system he has seen.

This admission, coming from so violent an opponent of paper currency, may reasonably be set down as the highest commendation that he could be expected to pay to any paper system.

He also says:—

“Many schemes of the same kind have, at different times, been presented to the world; but none of them have been more complete in detail, or more systematically arranged, than that of Mr. Spooner. (p. 414).

But by way of condemning the system as far as possible, he says:—

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“Mr. Spooner, however, can, we think, make no claim to originality, so far as the general principle is concerned. The famous bank of John Law, in France, was essentially of the same character.” (p. 413.)

No, it was not essentially of the same character. One difference—to say nothing of twenty others—between the two systems was this: that Law’s bank issued notes that it had no means to redeem; whereas Mr. Walker himself admits that “Mr. Spooner’s system makes no promises that it cannot fulfil.” That is to say, it purports to represent nothing except what it actually represents, viz.: property that is actually on hand, and can always be delivered, on demand, in redemption of the paper. Is not this difference an “essential” one? If Mr. Walker thinks it is not, he differs “essentially” from the rest of mankind. What fault was ever found with John Law’s bank, except that it could not redeem its paper? Will Mr. Walker inform us?

Endnotes

*

By the State valuation of May, 1871, the real estate of Boston is estimated at $395,214,950.

†

By the State valuation of May, 1871, the real estate of the Commonwealth is estimated at $991,196,803.

‡

The amount of circulation now authorized by the present “National” banks of Massachusetts, is $58,506,686, as appears by the recent report of the Comptroller of the Currency.

*

There would always be a plenty of specie for sale, in the seaports, as merchandise.

*

Exclusive of the so called “gold” banks, which are too few to be worthy of notice.

*

I say “poor prosperity,” because the present prosperity of Massachusetts is not only a dishonest prosperity, but is also only the prosperity of the few, and not of the many.

*

If the excess mentioned in the text should not be withdrawn, it will be only because the system is so villainous in itself, that other parts of the country will not accept the shares to which they are entitled.

*

Since the notes on page fifth were printed, the Boston Journal, of Jan. 11, 1873, says that, by the valuation of 1872, the real estate of Massachusetts is $1,131,306,347.

*

At first they were required to invest only in six per cent. bonds. But more recently they have been coerced or “persuaded” to invest sixty-five millions ($65,000,000) in five per cent. bonds. And very lately it has been announced that “The Comptroller of the Currency will not hereafter change United States bonds, deposited as security for circulating notes of national banks, except upon condition of substituting the new five per cents. of the loan of July 14, 1870, and January 20, 1872.”—Boston Daily Advertiser of February 5, 1873.

From this it is evident that all the banks are to be “persuaded” into investing their capitals in five per cent. bonds.

T.27 Vices are Not Crimes: A Vindication of Moral Liberty (1875).↩

Title

[27.] Vices are Not Crimes: A Vindication of Moral Liberty in Dio Lewis, Prohibition a Failure, Or, The True Solution of the Temperance Question (Boston: J.R. Osgood and Company, 1875), pp. 107-46.

- also online Shorter Works, vol. 2: </titles/2292#lf1531-02_head_038>

Text

VICES ARE NOT CRIMES. A VINDICATION OF MORAL LIBERTY.

I.

VICES are those acts by which a man harms himself or his property.

Crimes are those acts by which one man harms the person or property of another.

Vices are simply the errors which a man makes in his search after his own happiness. Unlike crimes, they imply no malice toward others, and no interference with their persons or property.

In vices, the very essence of crime—that is, the design to injure the person or property of another—is wanting.

It is a maxim of the law that there can be no crime without a criminal intent; that is, without the intent to invade the person or property of another. But no one ever practises a vice with any such criminal intent. He practises his vice for his own happiness solely, and not from any malice toward others.

Unless this clear distinction between vices and crimes be made and recognized by the laws, there can be on earth no such thing as individual right, liberty, or property; no such things as the right of one man to the control of his own person and property, and the corresponding and co-equal rights of another man to the control of his own person and property.

[2]

For a government to declare a vice to be a crime, and to punish it as such, is an attempt to falsify the very nature of things. It is as absurd as it would be to declare truth to be falsehood, or falsehood truth.

II.

EVERY voluntary act of a man’s life is either virtuous or vicious. That is to say, it is either in accordance, or in conflict, with those natural laws of matter and mind, on which his physical, mental, and emotional health and well-being depend. In other words, every act of his life tends, on the whole, either to his happiness, or to his unhappiness. No single act in his whole existence is indifferent.

Furthermore, each human being differs in his physical, mental, and emotional constitution, and also in the circumstances by which he is surrounded, from every other human being. Many acts, therefore, that are virtuous, and tend to happiness, in the case of one person, are vicious, and tend to unhappiness, in the case of another person.

Many acts, also, that are virtuous, and tend to happiness, in the case of one man, at one time, and under one set of circumstances, are vicious, and tend to unhappiness, in the case of the same man, at another time, and under other circumstances.

III.

TO know what actions are virtuous, and what vicious,—in other words, to know what actions tend, on the whole, to happiness, and what to unhappiness,—in the [3] case of each and every man, in each and all the conditions in which they may severally be placed, is the profoundest and most complex study to which the greatest human mind ever has been, or ever can be, directed. It is, nevertheless, the constant study to which each and every man—the humblest in intellect as well as the greatest—is necessarily driven by the desires and necessities of his own existence. It is also the study in which each and every person, from his cradle to his grave, must necessarily form his own conclusions; because no one else knows or feels, or can know or feel, as he knows and feels, the desires and necessities, the hopes, and fears, and impulses of his own nature, or the pressure of his own circumstances.

IV.

IT is not often possible to say of those acts that are called vices, that they really are vices, except in degree. That is, it is difficult to say of any actions, or courses of action, that are called vices, that they really would have been vices, if they had stopped short of a certain point. The question of virtue or vice, therefore, in all such cases, is a question of quantity and degree, and not of the intrinsic character of any single act, by itself. This fact adds to the difficulty, not to say the impossibility, of any one’s—except each individual for himself—drawing any accurate line, or anything like any accurate line, between virtue and vice; that is, of telling where virtue ends, and vice begins. And this is another reason why this whole question of virtue and vice should be left for each person to settle for himself.

[4]

V.

VICES are usually pleasurable, at least for the time being, and often do not disclose themselves as vices, by their effects, until after they have been practised for many years; perhaps for a lifetime. To many, perhaps most, of those who practise them, they do not disclose themselves as vices at all during life. Virtues, on the other hand, often appear so harsh and rugged, they require the sacrifice of so much present happiness, at least, and the results, which alone prove them to be virtues, are often so distant and obscure, in fact, so absolutely invisible to the minds of many, especially of the young, that, from the very nature of things, there can be no universal, or even general, knowledge that they are virtues. In truth, the studies of profound philosophers have been expended—if not wholly in vain, certainly with very small results—in efforts to draw the lines between the virtues and the vices.

If, then, it be so difficult, so nearly impossible, in most cases, to determine what is, and what is not, vice; and especially if it be so difficult, in nearly all cases, to determine where virtue ends, and vice begins; and if these questions, which no one can really and truly determine for anybody but himself, are not to be left free and open for experiment by all, each person is deprived of the highest of all his rights as a human being, to wit: his right to inquire, investigate, reason, try experiments, judge, and ascertain for himself, what is, to him, virtue, and what is, to him, vice; in other words. what, on the whole, conduces to his happiness, and what, on the whole, tends to his unhappiness. If this great right is not to be left free and open to all, then each man’s whole right, as [5] a reasoning human being, to “liberty and the pursuit of happiness,” is denied him.

VI.

WE all come into the world in ignorance of ourselves, and of everything around us. By a fundamental law of our natures we are all constantly impelled by the desire of happiness, and the fear of pain. But we have everything to learn, as to what will give us happiness, and save us from pain. No two of us are wholly alike, either physically, mentally, or emotionally; or, consequently, in our physical, mental, or emotional requirements for the acquisition of happiness, and the avoidance of unhappiness. No one of us, therefore, can learn this indispensable lesson of happiness and unhappiness, of virtue and vice, for another. Each must learn it for himself. To learn it, he must be at liberty to try all experiments that commend themselves to his judgment. Some of his experiments succeed, and, because they succeed, are called virtues; others fail, and, because they fail, are called vices. He gathers wisdom from his failures, as well as from his successes; from his so-called vices, as from his so-called virtues. He gathers wisdom as much from his failures as from his successes; from his so-called vices, as from his so-called virtues. Both are necessary to his acquisition of that knowledge—of his own nature, and of the world around him, and of their adaptations or non-adaptations to each other—which shall show him how happiness is acquired, and pain avoided. And, unless he can be permitted to try these experiments to his own satisfaction, he is restrained from the acquisition of knowledge, and, consequently, from pursuing the great purpose and duty of his life.

[6]

VII.

A MAN is under no obligation to take anybody’s word, or yield to anybody’s authority, on a matter so vital to himself, and in regard to which no one else has, or can have, any such interest as he. He cannot, if he would, safely rely upon the opinions of other men, because he finds that the opinions of other men do not agree. Certain actions, or courses of action, have been practised by many millions of men, through successive generations, and have been held by them to be, on the whole, conducive to happiness, and therefore virtuous. Other men, in other ages or countries, or under other conditions, have held, as the result of their experience and observation, that these actions tended, on the whole, to unhappiness, and were therefore vicious. The question of virtue or vice, as already remarked in a previous section, has also been, in most minds, a question of degree; that is, of the extent to which certain actions should be carried; and not of the intrinsic character of any single act, by itself. The questions of virtue and vice have therefore been as various, and, in fact, as infinite, as the varieties of mind, body, and condition of the different individuals inhabiting the globe. And the experience of ages has left an infinite number of these questions unsettled. In fact, it can scarcely be said to have settled any of them.

VIII.

IN the midst of this endless variety of opinion, what man, or what body of men, has the right to say, in regard to any particular action, or course of action, “We [7] have tried this experiment, and determined every question involved in it? We have determined it, not only for ourselves, but for all others? And, as to all those who are weaker than we, we will coerce them to act in obedience to our conclusion? We will suffer no further experiment or inquiry by any one, and, consequently, no further acquisition of knowledge by anybody?”

Who are the men who have the right to say this? Certainly there are none such. The men who really do say it, are either shameless impostors and tyrants, who would stop the progress of knowledge, and usurp absolute control over the minds and bodies of their fellow-men; and are therefore to be resisted instantly, and to the last extent; or they are themselves too ignorant of their own weaknesses, and of their true relations to other men, to be entitled to any other consideration than sheer pity or contempt.

We know, however, that there are such men as these in the world. Some of them attempt to exercise their power only within a small sphere, to wit, upon their children, their neighbors, their townsmen, and their countrymen. Others attempt to exercise it on a larger scale. For example, an old man at Rome, aided by a few subordinates, attempts to decide all questions of virtue and vice; that is, of truth or falsehood, especially in matters of religion. He claims to know and teach what religious ideas and practices are conducive, or fatal, to a man’s happiness, not only in this world, but in that which is to come. He claims to be miraculously inspired for the performance of this work; thus virtually acknowledging, like a sensible man, that nothing short of miraculous inspiration would qualify him for it. This miraculous inspiration, however, has been ineffectual to enable him to settle more than a very few questions. The most important of these are, first, that the highest religious virtue [8] to which common mortals can attain, is an implicit belief in his (the pope’s) infallibility! and, secondly, that the blackest vices of which they can be guilty are to believe and declare that he is only a man like the rest of them!

It required some fifteen or eighteen hundred years to enable him to reach definite conclusions on these two vital points. Yet it would seem that the first of these must necessarily be preliminary to his settlement of any other questions; because, until his own infallibility is determined, he can authoritatively decide nothing else. He has, however, heretofore attempted or pretended to settle a few others. And he may, perhaps, attempt or pretend to settle a few more in the future, if he shall continue to find anybody to listen to him. But his success, thus far, certainly does not encourage the belief that he will be able to settle all questions of virtue and vice, even in his peculiar department of religion, in time to meet the necessities of mankind. He, or his successors, will undoubtedly be compelled, at no distant day, to acknowledge that he has undertaken a task to which all his miraculous inspiration was inadequate; and that, of necessity, each human being must be left to settle all questions of this kind for himself. And it is not unreasonable to expect that all other popes, in other and lesser spheres, will some time have cause to come to the same conclusion. No one, certainly, not claiming supernatural inspiration, should undertake a task to which obviously nothing less than such inspiration is adequate. And, clearly, no one should surrender his own judgment to the teachings of others, unless he be first convinced that these others have something more than ordinary human knowledge on this subject.

If those persons, who fancy themselves gifted with both the power and the right to define and punish other men’s vices, would but turn their thoughts inwardly, they would [9] probably find that they have a great work to do at home; and that, when that shall have been completed, they will be little disposed to do more towards correcting the vices of others, than simply to give to others the results of their experience and observation. In this sphere their labors may possibly be useful; but, in the sphere of infallibility and coercion, they will probably, for well-known reasons, meet with even less success in the future than such men have met with in the past.

IX.

IT is now obvious, from the reasons already given, that government would be utterly impracticable, if it were to take cognizance of vices, and punish them as crimes. Every human being has his or her vices. Nearly all men have a great many. And they are of all kinds; physiological, mental, emotional; religious, social, commercial, industrial, economical, &c., &c. If government is to take cognizance of any of these vices, and punish them as crimes, then, to be consistent, it must take cognizance of all, and punish all impartially. The consequence would be, that everybody would be in prison for his or her vices. There would be no one left outside to lock the doors upon those within. In fact, courts enough could not be found to try the offenders, nor prisons enough built to hold them. All human industry in the acquisition of knowledge, and even in acquiring the means of subsistence, would be arrested; for we should all be under constant trial or imprisonment for our vices. But even if it were possible to imprison all the vicious, our knowledge of human nature tells us that, as a general rule, they would be far more vicious in prison than they ever have been out of it.

[10]

X.

A GOVERNMENT that shall punish all vices impartially is so obviously an impossibility, that nobody was ever found, or ever will be found, foolish enough to propose it. The most that any one proposes is, that government shall punish some one, or at most a few, of what he esteems the grossest of them. But this discrimination is an utterly absurd, illogical, and tyrannical one. What right has any body of men to say, “The vices of other men we will punish; but our own vices nobody shall punish? We will restrain other men from seeking their own happiness, according to their own notions of it; but nobody shall restrain us from seeking our own happiness, according to our own notions of it? We will restrain other men from acquiring any experimental knowledge of what is conducive or necessary to their own happiness; but nobody shall restrain us from acquiring an experimental knowledge of what is conducive or necessary to our own happiness?”

Nobody but knaves or blockheads ever thinks of making such absurd assumptions as these. And yet, evidently, it is only upon such assumptions that anybody can claim the right to punish the vices of others, and at the same time claim exemption from punishment for his own.

XI.

SUCH a thing as a government, formed by voluntary association, would never have been thought of, if the object proposed had been the punishment of all vices, impartially; because nobody wants such an institution, [11] or would voluntarily submit to it. But a government, formed by voluntary association, for the punishment of all crimes, is a reasonable matter; because everybody wants protection for himself against all crimes by others, and also acknowledges the justice of his own punishment, if he commits a crime.

XII.

IT is a natural impossibility that a government should have a right to punish men for their vices; because it is impossible that a government should have any rights, except such as the individuals composing it had previously had, as individuals. They could not delegate to a government any rights which they did not themselves possess. They could not contribute to the government any rights, except such as they themselves possessed as individuals. Now, nobody but a fool or an impostor pretends that he, as an individual, has a right to punish other men for their vices. But anybody and everybody have a natural right, as individuals, to punish other men for their crimes; for everybody has a natural right, not only to defend his own person and property against aggressors, but also to go to the assistance and defence of everybody else, whose person or property is invaded. The natural right of each individual to defend his own person and property against an aggressor, and to go to the assistance and defence of every one else whose person or property is invaded, is a right without which men could not exist on the earth. And government has no rightful existence, except in so far as it embodies, and is limited by, this natural right of individuals. But the idea that each man has a natural right to sit in judgment on all his neighbor’s actions, and [12] decide what are virtues, and what are vices,—that is, what contribute to that neighbor’s happiness, and what do not,—and to punish him for all that do not contribute to it, is what no one ever had the impudence or folly to assert. It is only those who claim that government has some rightful power, which no individual or individuals ever did, or ever could, delegate to it, that claim that government has any rightful power to punish vices.

It will do for a pope or a king—who claims to have received direct authority from Heaven, to rule over his fellow-men—to claim the right, as the vicegerent of God, to punish men for their vices; but it is a sheer and utter absurdity for any government, claiming to derive its power wholly from the grant of the governed, to claim any such power; because everybody knows that the governed never would grant it. For them to grant it would be an absurdity, because it would be granting away their own right to seek their own happiness; since to grant away their right to judge of what will be for their happiness, is to grant away all their right to pursue their own happiness.

XIII.

WE can now see how simple, easy, and reasonable a matter is a government for the punishment of crimes, as compared with one for the punishment of vices. Crimes are few, and easily distinguished from all other acts; and mankind are generally agreed as to what acts are crimes. Whereas vices are innumerable; and no two persons are agreed, except in comparatively few cases, as to what are vices. Furthermore, everybody wishes to be protected, in his person and property, against the aggressions of other men. But nobody wishes [13] to be protected, either in his person or property, against himself; because it is contrary to the fundamental laws of human nature itself, that any one should wish to harm himself. He only wishes to promote his own happiness, and to be his own judge as to what will promote, and does promote, his own happiness. This is what every one wants, and has a right to, as a human being. And though we all make many mistakes, and necessarily must make them, from the imperfection of our knowledge, yet these mistakes are no argument against the right; because they all tend to give us the very knowledge we need, and are in pursuit of, and can get in no other way.

The object aimed at in the punishment of crimes, therefore, is not only wholly different from, but it is directly opposed to, that aimed at in the punishment of vices.

The object aimed at in the punishment of crimes is to secure, to each and every man alike, the fullest liberty he possibly can have—consistently with the equal rights of others—to pursue his own happiness, under the guidance of his own judgment, and by the use of his own property. On the other hand, the object aimed at in the punishment of vices, is to deprive every man of his natural right and liberty to pursue his own happiness, under the guidance of his own judgment, and by the use of his own property.

These two objects, then, are directly opposed to each other. They are as directly opposed to each other as are light and darkness, or as truth and falsehood, or as liberty and slavery. They are utterly incompatible with each other; and to suppose the two to be embraced in one and the same government, is an absurdity, an impossibility. It is to suppose the objects of a government to be to commit crimes, and to prevent crimes; to destroy individual liberty, and to secure individual liberty.

[14]

XIV.

FINALLY, on this point of individual liberty: Every man must necessarily judge and determine for himself as to what is conducive and necessary to, and what is destructive of, his own well-being; because, if he omits to perform this task for himself, nobody else can perform it for him. And nobody else will even attempt to perform it for him, except in very few cases. Popes, and priests, and kings will assume to perform it for him, in certain cases, if permitted to do so. But they will, in general, perform it only in so far as they can minister to their own vices and crimes, by doing it. They will, in general, perform it only in so far as they can make him their fool and their slave. Parents, with better motives, no doubt, than the others, too often attempt the same work. But in so far as they practise coercion, or restrain a child from anything not really and seriously dangerous to himself, they do him a harm, rather than a good. It is a law of Nature that to get knowledge, and to incorporate that knowledge into his own being, each individual must get it for himself. Nobody, not even his parents, can tell him the nature of fire, so that he will really know it. He must himself experiment with it, and be burnt by it, before he can know it.

Nature knows, a thousand times better than any parent, what she designs each individual for, what knowledge he requires, and how he must get it. She knows that her own processes for communicating that knowledge are not only the best, but the only ones that can be effectual.

The attempts of parents to make their children virtuous are generally little else than attempts to keep them [15] in ignorance of vice. They are little else than attempts to teach their children to know and prefer truth, by keeping them in ignorance of falsehood. They are little else than attempts to make them seek and appreciate health, by keeping them in ignorance of disease, and of everything that will cause disease. They are little else than attempts to make their children love the light, by keeping them in ignorance of darkness. In short, they are little else than attempts to make their children happy, by keeping them in ignorance of everything that causes them unhappiness.

In so far as parents can really aid their children in the latter’s search after happiness, by simply giving them the results of their (the parents’) own reason and experience, it is all very well, and is a natural and appropriate duty. But to practise coercion in matters of which the children are reasonably competent to judge for themselves, is only an attempt to keep them in ignorance. And this is as much a tyranny, and as much a violation of the children’s right to acquire knowledge for themselves, and such knowledge as they desire, as is the same coercion when practised upon older persons. Such coercion, practised upon children, is a denial of their right to develop the faculties that Nature has given them, and to be what Nature designs them to be. It is a denial of their right to themselves, and to the use of their own powers. It is a denial of their right to acquire the most valuable of all knowledge, to wit, the knowledge that Nature, the great teacher, stands ready to impart to them.

The results of such coercion are not to make the children wise or virtuous, but to make them ignorant, and consequently weak and vicious; and to perpetuate through them, from age to age, the ignorance, the superstitions, the vices, and the crimes of the parents. This is proved by every page of the world’s history.

[16]

Those who hold opinions opposite to these, are those whose false and vicious theologies, or whose own vicious general ideas, have taught them that the human race are naturally given to evil, rather than good; to the false, rather than the true; that mankind do not naturally turn their eyes to the light; that they love darkness, rather than light; and that they find their happiness only in those things that tend to their misery.

XV.

BUT these men, who claim that government shall use its power to prevent vice, will say, or are in the habit of saying, “We acknowledge the right of an individual to seek his own happiness in his own way, and consequently to be as vicious as he pleases; we only claim that government shall prohibit the sale to him of those articles by which he ministers to his vice.”

The answer to this is, that the simple sale of any article whatever—independently of the use that is to be made of the article—is legally a perfectly innocent act. The quality of the act of sale depends wholly upon the quality of the use for which the thing is sold. If the use of anything is virtuous and lawful, then the sale of it, for that use, is virtuous and lawful. If the use is vicious, then the sale of it, for that use, is vicious. If the use is criminal, then the sale of it, for that use, is criminal. The seller is, at most, only an accomplice in the use that is to be made of the article sold, whether the use be virtuous, vicious, or criminal. Where the use is criminal, the seller is an accomplice in the crime, and punishable as such. But where the use is only vicious, the seller is only an accomplice in the vice, and is not punishable.

[17]

XVI.

BUT it will be asked, “Is there no right, on the part of government, to arrest the progress of those who are bent on self-destruction?”

The answer is, that government has no rights whatever in the matter, so long as these so-called vicious persons remain sane, compos mentis, capable of exercising reasonable discretion and self-control; because, so long as they do remain sane, they must be allowed to judge and decide for themselves whether their so-called vices really are vices; whether they really are leading them to destruction; and whether, on the whole, they will go there or not. When they shall become insane, non compos mentis, incapable of reasonable discretion or self-control, their friends or neighbors, or the government, must take care of them, and protect them from harm, and against all persons who would do them harm, in the same way as if their insanity had come upon them from any other cause than their supposed vices.

But because a man is supposed, by his neighbors, to be on the way to self-destruction, from his vices, it does not, therefore, follow that he is insane, non compos mentis, incapable of reasonable discretion and self-control, within the legal meaning of those terms. Men and women may be addicted to very gross vices, and to a great many of them,—such as gluttony, drunkenness, prostitution, gambling, prize-fighting, tobacco-chewing, smoking, and snuffing, opium-eating, corset-wearing, idleness, waste of property, avarice, hypocrisy, &c., &c.,—and still be sane, compos mentis, capable of reasonable discretion and self-control, within the meaning of the law. And so long as they are sane, they must be permitted to control [18] themselves and their property, and to be their own judges as to where their vices will finally lead them. It may be hoped by the lookers-on, in each individual case, that the vicious person will see the end to which he is tending, and be induced to turn back. But, if he chooses to go on to what other men call destruction, he must be permitted to do so. And all that can be said of him, so far as this life is concerned, is, that he made a great mistake in his search after happiness, and that others will do well to take warning by his fate. As to what may be his condition in another life, that is a theological question with which the law, in this world, has no more to do than it has with any other theological question, touching men’s condition in a future life.

If it be asked how the question of a vicious man’s sanity or insanity is to be determined? the answer is, that it is to be determined by the same kinds of evidence as is the sanity or insanity of those who are called virtuous; and not otherwise. That is, by the same kinds of evidence by which the legal tribunals determine whether a man should be sent to an asylum for lunatics, or whether he is competent to make a will, or otherwise dispose of his property. Any doubt must weigh in favor of his sanity, as in all other cases, and not of his insanity.

If a person really does become insane, non compos mentis, incapable of reasonable discretion or self-control, it is then a crime, on the part of other men, to give to him or sell to him, the means of self-injury.* And such a crime is to be punished like any other crime.

There are no crimes more easily punished, no cases in which juries would be more ready to convict, than those [19] where a sane person should sell or give to an insane one any article with which the latter was likely to injure himself.

XVII.

BUT it will be said that some men are made, by their vices, dangerous to other persons; that a drunkard, for example, is sometimes quarrelsome and dangerous toward his family or others. And it will be asked, “Has the law nothing to do in such a case?”

The answer is, that if, either from drunkenness or any other cause, a man be really dangerous, either to his family or to other persons, not only himself may be rightfully restrained, so far as the safety of other persons requires, but all other persons—who know or have reasonable grounds to believe him dangerous—may also be restrained from selling or giving to him anything that they have reason to suppose will make him dangerous.

But because one man becomes quarrelsome and dangerous after drinking spirituous liquors, and because it is a crime to give or sell liquor to such a man, it does not follow at all that it is a crime to sell liquors to the hundreds and thousands of other persons, who are not made quarrelsome or dangerous by drinking them. Before a man can be convicted of crime in selling liquor to a dangerous man, it must be shown that the particular man, to whom the liquor was sold, was dangerous; and also that the seller knew, or had reasonable grounds to suppose, that the man would be made dangerous by drinking it.

The presumption of law is, in all cases, that the sale is innocent; and the burden of proving it criminal, in any particular case, rests upon the government. And that particular case must be proved criminal, independently of all others.

[20]

Subject to these principles, there is no difficulty in convicting and punishing men for the sale or gift of any article to a man, who is made dangerous to others by the use of it.

XVIII.

BUT it is often said that some vices are nuisances (public or private), and that nuisances can be abated and punished.

It is true that anything that is really and legally a nuisance (either public or private) can be abated and punished. But it is not true that the mere private vices of one man are, in any legal sense, nuisances to another man, or to the public.

No act of one person can be a nuisance to another, unless it in some way obstructs or interferes with that other’s safe and quiet use or enjoyment of what is rightfully his own.

Whatever obstructs a public highway, is a nuisance, and may be abated and punished. But a hotel where liquors are sold, a liquor store, or even a grog-shop, so called, no more obstructs a public highway, than does a dry goods store, a jewelry store, or a butcher’s shop.

Whatever poisons the air, or makes it either offensive or unhealthful, is a nuisance. But neither a hotel, nor a liquor store, nor a grog-shop poisons the air, or makes it offensive or unhealthful to outside persons.

Whatever obstructs the light, to which a man is legally entitled, is a nuisance. But neither a hotel, nor a liquor store, nor a grog-shop, obstructs anybody’s light, except in cases where a church, a school-house, or a dwelling-house would have equally obstructed it. On this ground, therefore, the former are no more, and no less, nuisances than the latter would be.

[21]

Some persons are in the habit of saying that a liquor-shop is dangerous, in the same way that gunpowder is dangerous. But there is no analogy between the two cases. Gunpowder is liable to be exploded by accident, and especially by such fires as often occur in cities. For these reasons it is dangerous to persons and property in its immediate vicinity. But liquors are not liable to be thus exploded, and therefore are not dangerous nuisances, in any such sense as is gunpowder in cities.

But it is said, again, that drinking-places are frequently filled with noisy and boisterous men, who disturb the quiet of the neighborhood, and the sleep and rest of the neighbors.

This may be true occasionally, though not very frequently. But whenever, in any case, it is true, the nuisance may be abated by the punishment of the proprietor and his customers, and if need be, by shutting up the place. But an assembly of noisy drinkers is no more a nuisance than is any other noisy assembly. A jolly or hilarious drinker disturbs the quiet of a neighborhood no more, and no less, than does a shouting religious fanatic. An assembly of noisy drinkers is no more, and no less, a nuisance than is an assembly of shouting religious fanatics. Both of them are nuisances when they disturb the rest and sleep, or quiet, of neighbors. Even a dog that is given to barking, to the disturbance of the sleep or quiet of the neighborhood, is a nuisance.

XIX.

BUT it is said, that for one person to entice another into a vice, is a crime.

This is preposterous. If any particular act is simply a vice, then a man who entices another to commit it, is [22] simply an accomplice in the vice. He evidently commits no crime, because the accomplice can certainly commit no greater offence than the principal.

Every person who is sane, compos mentis, possessed of reasonable discretion and self-control, is presumed to be mentally competent to judge for himself of all the arguments, pro and con, that may be addressed to him, to persuade him to do any particular act; provided no fraud is employed to deceive him. And if he is persuaded or induced to do the act, his act is then his own; and even though the act prove to be harmful to himself, he cannot complain that the persuasion or arguments, to which he yielded his assent, were crimes against himself.

When fraud is practised, the case is, of course, different. If, for example, I offer a man poison, assuring him that it is a safe and wholesome drink, and he, on the faith of my assertion, swallows it, my act is a crime.

Volenti non fit injuria, is a maxim of the law. To the willing no injury is done. That is, no legal wrong. And every person who is sane, compos mentis, capable of exercising reasonable discretion in judging of the truth or falsehood of the representations or persuasions to which he yields his assent, is “willing,” in the view of the law; and takes upon himself the entire responsibility for his acts, when no intentional fraud has been practised upon him.

This principle, that to the willing no injury is done, has no limit, except in the case of frauds, or of persons not possessed of reasonable discretion for judging in the particular case. If a person possessed of reasonable discretion, and not deceived by fraud, consents to practise the grossest vice, and thereby brings upon himself the greatest moral, physical, or pecuniary sufferings or losses, he cannot allege that he has been legally wronged. To illustrate this principle, take the case of rape. To have [23] carnal knowledge of a woman, against her will, is the highest crime, next to murder, that can be committed against her. But to have carnal knowledge of her, with her consent, is no crime; but at most, a vice. And it is usually holden that a female child, of no more than ten years of age, has such reasonable discretion, that her consent, even though procured by rewards, or promises of reward, is sufficient to convert the act, which would otherwise be a high crime, into a simple act of vice.*

We see the same principle in the case of prize-fighters. If I but lay one of my fingers upon another man’s person, against his will, no matter how lightly, and no matter how little practical injury is done, the act is a crime. But if two men agree to go out and pound each other’s faces to a jelly, it is no crime, but only a vice.

Even duels have not generally been considered crimes, because each man’s life is his own, and the parties agree that each may take the other’s life, if he can, by the use of such weapons as are agreed upon, and in conformity with certain rules that are also mutually assented to.

And this is a correct view of the matter, unless it can be said (as it probably cannot), that “anger is a madness” that so far deprives men of their reason as to make them incapable of reasonable discretion.

Gambling is another illustration of the principle that to the willing no injury is done. If I take but a single cent of a man’s property, without his consent, the act is a crime. But if two men, who are compos mentis, possessed [24] of reasonable discretion to judge of the nature and probable results of their act, sit down together, and each voluntarily stakes his money against the money of another, on the turn of a die, and one of them loses his whole estate (however large that may be), it is no crime, but only a vice.

It is not a crime, even, to assist a person to commit suicide, if he be in possession of his reason.

It is a somewhat common idea that suicide is, of itself, conclusive evidence of insanity. But, although it may ordinarily be very strong evidence of insanity, it is by no means conclusive in all cases. Many persons, in undoubted possession of their reason, have committed suicide, to escape the shame of a public exposure for their crimes, or to avoid some other great calamity. Suicide, in these cases, may not have been the highest wisdom, but it certainly was not proof of any lack of reasonable discretion.* And being within the limits of reasonable discretion, it was no crime for other persons to aid it, either by furnishing the instrument or otherwise. And if, in such cases, it be no crime to aid a suicide, how absurd to say that it is a crime to aid him in some act that is really pleasurable, and which a large portion of mankind have believed to be useful?

[25]

XX.

BUT some persons are in the habit of saying that the use of spirituous liquors is the great source of crime; that “it fills our prisons with criminals;” and that this is reason enough for prohibiting the sale of them.

Those who say this, if they talk seriously, talk blindly and foolishly. They evidently mean to be understood as saying that a very large percentage of all the crimes that are committed among men, are committed by persons whose criminal passions are excited, at the time, by the use of liquors, and in consequence of the use of liquors.

This idea is utterly preposterous.

In the first place, the great crimes committed in the world are mostly prompted by avarice and ambition.

The greatest of all crimes are the wars that are carried on by governments, to plunder, enslave, and destroy mankind.

The next greatest crimes committed in the world are equally prompted by avarice and ambition; and are committed, not on sudden passion, but by men of calculation, who keep their heads cool and clear, and who have no thought whatever of going to prison for them. They are committed, not so much by men who violate the laws, as by men who, either by themselves or by their instruments, make the laws; by men who have combined to usurp arbitrary power, and to maintain it by force and fraud, and whose purpose in usurping and maintaining it is, by unjust and unequal legislation, to secure to themselves such advantages and monopolies as will enable them to control and extort the labor and properties of other men, and thus impoverish them, in order to minister to their own wealth and aggrandizement.* The robberies and [26] wrongs thus committed by these men, in conformity with the laws,—that is, their own laws,—are as mountains to molehills, compared with the crimes committed by all other criminals, in violation of the laws.

But, thirdly, there are vast numbers of frauds, of various kinds, committed in the transactions of trade, whose perpetrators, by their coolness and sagacity, evade the operation of the laws. And it is only their cool and clear heads that enable them to do it. Men under the excitement of intoxicating drinks are little disposed, and utterly unequal, to the successful practice of these frauds. They are the most incautious, the least successful, the least efficient, and the least to be feared, of all the criminals with whom the laws have to deal.

Fourthly. The professed burglars, robbers, thieves, forgers, counterfeiters, and swindlers, who prey upon society, are anything but reckless drinkers. Their business is of too dangerous a character to admit of such risks as they would thus incur.

Fifthly. The crimes that can be said to be committed under the influence of intoxicating drinks are mostly assaults and batteries, not very numerous, and generally not very aggravated. Some other small crimes, as petty thefts, or other small trespasses upon property, are sometimes [27] committed, under the influence of drink, by feebleminded persons, not generally addicted to crime. The persons who commit these two kinds of crime are but few. They cannot be said to “fill our prisons;” or, if they do, we are to be congratulated that we need so few prisons, and so small prisons, to hold them.

The State of Massachusetts, for example, has a million and a half of people. How many of these are now in prison for crimes—not for the vice of intoxication, but for crimes—committed against persons or property under the instigation of strong drink? I doubt if there be one in ten thousand, that is, one hundred and fifty in all; and the crimes for which these are in prison are mostly very small ones.

And I think it will be found that these few men are generally much more to be pitied than punished, for the reason that it was their poverty and misery, rather than any passion for liquor, or for crime, that led them to drink, and thus led them to commit their crimes under the influence of drink.

The sweeping charge that drink “fills our prisons with criminals” is made, I think, only by those men who know no better than to call a drunkard a criminal; and who have no better foundation for their charge than the shameful fact that we are such a brutal and senseless people, that we condemn and punish such weak and unfortunate persons as drunkards, as if they were criminals.

The legislators who authorize, and the judges who practise, such atrocities as these, are intrinsically criminals; unless their ignorance be such—as it probably is not—as to excuse them. And, if they were themselves to be punished as criminals, there would be more reason in our conduct.

A police judge in Boston once told me that he was in the habit of disposing of drunkards (by sending them to [28] prison for thirty days—I think that was the stereotyped sentence) at the rate of one in three minutes! and sometimes more rapidly even than that; thus condemning them as criminals, and sending them to prison, without mercy, and without inquiry into circumstances, for an infirmity that entitled them to compassion and protection, instead of punishment. The real criminals in these cases were not the men who went to prison, but the judge, and the men behind him, who sent them there.

I recommend to those persons, who are so distressed lest the prisons of Massachusetts be filled with criminals, that they employ some portion, at least, of their philanthropy in preventing our prisons being filled with persons who are not criminals. I do not remember to have heard that their sympathies have ever been very actively exercised in that direction. On the contrary, they seem to have such a passion for punishing criminals, that they care not to inquire particularly whether a candidate for punishment really be a criminal. Such a passion, let me assure them, is a much more dangerous one, and one entitled to far less charity, both morally and legally, than the passion for strong drink.

It seems to be much more consonant with the merciless character of these men to send an unfortunate man to prison for drunkenness, and thus crush, and degrade, and dishearten him, and ruin him for life, than it does for them to lift him out of the poverty and misery that caused him to become a drunkard.

It is only those persons who have either little capacity, or little disposition, to enlighten, encourage, or aid mankind, that are possessed of this violent passion for governing, commanding, and punishing them. If, instead of standing by, and giving their consent and sanction to all the laws by which the weak man is first plundered, oppressed, and disheartened, and then punished as a [29] criminal, they would turn their attention to the duty of defending his rights and improving his condition, and of thus strengthening him, and enabling him to stand on his own feet, and withstand the temptations that surround him, they would, I think, have little need to talk about laws and prisons for either rum-sellers or rum-drinkers, or even any other class of ordinary criminals. If, in short, these men, who are so anxious for the suppression of crime, would suspend, for a while, their calls upon the government for aid in suppressing the crimes of individuals, and would call upon the people for aid in suppressing the crimes of the government, they would show both their sincerity and good sense in a much stronger light than they do now. When the laws shall all be so just and equitable as to make it possible for all men and women to live honestly and virtuously, and to make themselves comfortable and happy, there will be much fewer occasions than now for charging them with living dishonestly and viciously.

XXI.

BUT it will be said, again, that the use of spirituous liquors tends to poverty, and thus to make men paupers, and burdensome to the tax-payers; and that this is a sufficient reason why the sale of them should be prohibited.

There are various answers to this argument.

1. One answer is, that if the fact that the use of liquors tends to poverty and pauperism, be a sufficient reason for prohibiting the sale of them, it is equally a sufficient reason for prohibiting the use of them; for it is the use, and not the sale, that tends to poverty. The seller is, at [30] most, merely an accomplice of the drinker. And it is a rule of law, as well as of reason, that if the principal in any act is not punishable, the accomplice cannot be.

2. A second answer to the argument is, that if government has the right, and is bound, to prohibit any one act—that is not criminal—merely because it is supposed to tend to poverty, then, by the same rule, it has the right, and is bound, to prohibit any and every other act—though not criminal—which, in the opinion of the government, tends to poverty. And, on this principle, the government would not only have the right, but would be bound, to look into every man’s private affairs, and every person’s personal expenditures, and determine as to which of them did, and which of them did not, tend to poverty; and to prohibit and punish all of the former class. A man would have no right to expend a cent of his own property, according to his own pleasure or judgment, unless the legislature should be of the opinion that such expenditure would not tend to poverty.

3. A third answer to the same argument is, that if a man does bring himself to poverty, and even to beggary,—either by his virtues or his vices,—the government is under no obligation whatever to take care of him, unless it pleases to do so. It may let him perish in the street, or depend upon private charity, if it so pleases. It can carry out its own free will and discretion in the matter; for it is above all legal responsibility in such a case. It is not, necessarily, any part of a government’s duty to provide for the poor. A government—that is, a legitimate government—is simply a voluntary association of individuals, who unite for such purposes, and only for such purposes, as suits them. If taking care of the poor—whether they be virtuous or vicious—be not one of those purposes, then the government, as a government, has no more right, and is no more bound, to take care of [31] them, than has or is a banking company, or a railroad company.

Whatever moral claims a poor man—whether he be virtuous or vicious—may have upon the charity of his fellow-men, he has no legal claims upon them. He must depend wholly upon their charity, if they so please. He cannot demand, as a legal right, that they either feed or clothe him. And he has no more legal or moral claims upon a government—which is but an association of individuals—than he has upon the same, or any other individuals, in their private capacity.

Inasmuch, then, as a poor man—whether virtuous or vicious—has no more or other claims, legal or moral, upon a government, for food or clothing, than he has upon private persons, a government has no more right than a private person to control or prohibit the expenditures or actions of an individual, on the ground that they tend to bring him to poverty.

Mr. A, as an individual, has clearly no right to prohibit any acts or expenditures of Mr. Z, through fear that such acts or expenditures may tend to bring him (Z) to poverty, and that he (Z) may, in consequence, at some future unknown time, come to him (A) in distress, and ask charity. And if A has no such right, as an individual, to prohibit any acts or expenditures on the part of Z, then government, which is a mere association of individuals, can have no such right.

Certainly no man, who is compos mentis, holds his right to the disposal and use of his own property, by any such worthless tenure as that which would authorize any or all of his neighbors,—whether calling themselves a government or not,—to interfere, and forbid him to make any expenditures, except such as they might think would not tend to poverty, and would not tend to ever bring him to them as a supplicant for their charity.

[32]

Whether a man, who is compos mentis, come to poverty, through his virtues or his vices, no man, nor body of men, can have any right to interfere with him, on the ground that their sympathy may some time be appealed to in his behalf; because, if it should be appealed to, they are at perfect liberty to act their own pleasure or discretion as to complying with his solicitations.

This right to refuse charity to the poor—whether the latter be virtuous or vicious—is one that governments always act upon. No government makes any more provision for the poor than it pleases. As a consequence, the poor are left, to a great extent, to depend upon private charity. In fact, they are often left to suffer sickness, and even death, because neither public nor private charity comes to their aid. How absurd, then, to say that government has a right to control a man’s use of his own property, through fear that he may sometime come to poverty, and ask charity.

4. Still a fourth answer to the argument is, that the great and only incentive which each individual man has to labor, and to create wealth, is that he may dispose of it according to his own pleasure or discretion, and for the promotion of his own happiness, and the happiness of those whom he loves.*

Although a man may often, from inexperience or want of judgment, expend some portion of the products of his labor injudiciously, and so as not to promote his highest welfare, yet he learns wisdom in this, as in all other matters, by experience; by his mistakes as well as by his successes. And this is the only way in which he can learn wisdom. When he becomes convinced that he has made one foolish expenditure, he learns thereby not to make [33] another like it. And he must be permitted to try his own experiments, and to try them to his own satisfaction, in this as in all other matters; for otherwise he has no motive to labor, or to create wealth at all.

Any man, who is a man, would rather be a savage, and be free, creating or procuring only such little wealth as he could control and consume from day to day, than to be a civilized man, knowing how to create and accumulate wealth indefinitely, and yet not permitted to use or dispose of it, except under the supervision, direction, and dictation of a set of meddlesome, superserviceable fools and tyrants, who, with no more knowledge than himself, and perhaps with not half so much, should assume to control him, on the ground that he had not the right, or the capacity, to determine for himself as to what he would do with the proceeds of his own labor.

5. A fifth answer to the argument is, that if it be the duty of government to watch over the expenditures of any one person,—who is compos mentis, and not criminal,—to see what ones tend to poverty, and what do not, and to prohibit and punish the former, then, by the same rule, it is bound to watch over the expenditures of all other persons, and prohibit and punish all that, in its judgment, tend to poverty.

If such a principle were carried out impartially, the result would be, that all mankind would be so occupied in watching each other’s expenditures, and in testifying against, trying, and punishing such as tended to poverty, that they would have no time left to create wealth at all. Everybody capable of productive labor would either be in prison, or be acting as judge, juror, witness, or jailer. It would be impossible to create courts enough to try, or to build prisons enough to hold, the offenders. All productive labor would cease; and the fools that were so intent on preventing poverty, would not only all come to [34] poverty, imprisonment, and starvation themselves, but would bring everybody else to poverty, imprisonment, and starvation.

6. If it be said that a man may, at least, be rightfully compelled to support his family, and, consequently, to abstain from all expenditures that, in the opinion of the government, tend to disable him to perform that duty, various answers might be given. But this one is sufficient, viz.: that no man, unless a fool or a slave, would acknowledge any family to be his, if that acknowledgment were to be made an excuse, by the government, for depriving him, either of his personal liberty, or the control of his property.

When a man is allowed his natural liberty, and the control of his property, his family is usually, almost universally, the great paramount object of his pride and affection; and he will, not only voluntarily, but as his highest pleasure, employ his best powers of mind and body, not merely to provide for them the ordinary necessaries and comforts of life, but to lavish upon them all the luxuries and elegancies that his labor can procure.

A man enters into no moral or legal obligation with his wife or chidren to do anything for them, except what he can do consistently with his own personal freedom, and his natural right to control his own property at his own discretion.

If a government can step in and say to a man,—who is compos mentis, and who is doing his duty to his family, as he sees his duty, and according to his best judgment, however imperfect that may be,—“We (the government) suspect that you are not employing your labor to the best advantage for your family; we suspect that your expenditures, and your disposal of your property, are not so judicious as they might be, for the interest of your family; and therefore we (the government) [35] will take you and your property under our special surveillance, and prescribe to you what you may, and may not do, with yourself and your property; and your family shall hereafter look to us (the government), and not to you, for support”—if a government can do this, all a man’s pride, ambition, and affection, relative to his family, would be crushed, so far as it would be possible for human tyranny to crush them; and he would either never have a family (whom he would publicly acknowledge to be his), or he would risk both his property and his life in overthrowing such an insulting, outrageous, and insufferable tyranny. And any woman who would wish her husband—he being compos mentis—to submit to such an unnatural insult and wrong, is utterly undeserving of his affection, or of anything but his disgust and contempt. And he would probably very soon cause her to understand that, if she chose to rely on the government, for the support of herself and her children, rather than on him, she must rely on the government alone.

XXII.

STILL another and all-sufficient answer to the argument that the use of spirituous liquors tends to poverty, is that, as a general rule, it puts the effect before the cause. It assumes that it is the use of the liquors that causes the poverty, instead of its being the poverty that causes the use of the liquors.

Poverty is the natural parent of nearly all the ignorance, vice, crime, and misery there are in the world.*

[36]

Why is it that so large a portion of the laboring people of England are drunken and vicious? Certainly not because they are by nature any worse than other men. But it is because their extreme and hopeless poverty keeps them in ignorance and servitude, destroys their courage and self-respect, subjects them to such constant insults and wrongs, to such incessant and bitter miseries of every kind, and finally drives them to such despair, that the short respite that drink or other vice affords them, is, for the time being, a relief. This is the chief cause of the drunkenness and other vices that prevail among the laboring people of England.

If those laborers of England, who are now drunken and vicious, had had the same chances and surroundings in life as the more fortunate classes have had; if they had been reared in comfortable, and happy, and virtuous homes, instead of squalid, and wretched, and vicious ones; if they had had opportunities to acquire knowledge and property, and make themselves intelligent, comfortable, happy, independent, and respected, and to secure to themselves all the intellectual, social, and domestic enjoyments which honest and justly rewarded industry could enable them to secure,—if they could have had all this, instead of being born to a life of hopeless, unrewarded toil, with a certainty of death in the workhouse, they would have been as free from their present vices and weaknesses as those who reproach them now are.

It is of no use to say that drunkenness, or any other vice, only adds to their miseries; for such is human nature—the weakness of human nature, if you please—that men can endure but a certain amount of misery, before their hope and courage fail, and they yield to almost anything that promises present relief or mitigation; though at the cost of still greater misery in the future. To preach morality or temperance to such wretched persons, [37] instead of relieving their sufferings, or improving their conditions, is only insulting their wretchedness.

Will those who are in the habit of attributing men’s poverty to their vices, instead of their vices to their poverty,—as if every poor person, or most poor persons, were specially vicious,—tell us whether all the poverty and want that, within the last year and a half,* have been brought so suddenly—as it were in a moment—upon at least twenty millions of the people of the United States, were brought upon them as a natural consequence, either of their drunkenness, or of any other of their vices? Was it their drunkenness, or any other of their vices, that paralyzed, as by a stroke of lightning, all the industries by which they lived, and which had, but a few days before, been in such prosperous activity? Was it their vices that turned the adult portion of those twenty millions out of doors without employment, compelled them to consume their little accumulations, if they had any, and then to become beggars,—beggars for work, and, failing in this, beggars for bread? Was it their vices that, all at once, and without warning, filled the homes of so many of them with want, misery, sickness, and death? No. Clearly it was neither the drunkenness, nor any other vices, of these laboring people, that brought upon them all this ruin and wretchedness. And if it was not,what was it?

This is the problem that must be answered; for it is one that is repeatedly occurring, and constantly before us, and that cannot be put aside.

In fact, the poverty of the great body of mankind, the world over, is the great problem of the world. That such extreme and nearly universal poverty exists all over the world, and has existed through all past generations, [38] proves that it originates in causes which the common human nature of those who suffer from it, has not hitherto been strong enough to overcome. But these sufferers are, at least, beginning to see these causes, and are becoming resolute to remove them, let it cost what it may. And those who imagine that they have nothing to do but to go on attributing the poverty of the poor to their vices, and preaching to them against their vices, will ere long wake up to find that the day for all such talk is past. And the question will then be, not what are men’s vices, but what are their rights?

Endnotes

*

To give an insane man a knife, or any other weapon, or thing, by which he is likely to injure himself, is a crime.

*

The statute book of Massachusetts makes ten years the age at which a female child is supposed to have discretion enough to part with her virtue. But the same statute book holds that no person, man or woman, of any age, or any degree of wisdom or experience, has discretion enough to be trusted to buy and drink a glass of spirits, on his or her own judgment! What an illustration of the legislative wisdom of Massachusetts!

*

Cato committed suicide to avoid falling into the hands of Cæsar. Who ever suspected that he was insane? Brutus did the same. Colt committed suicide only an hour or so before he was to be hanged. He did it to avoid bringing upon his name and his family the disgrace of having it said that he was hanged. This, whether a really wise act or not, was clearly an act within reasonable discretion. Does any one suppose that the person who furnished him with the necessary instrument was a criminal?

*

An illustration of this fact is found in England, whose government, for a thousand years and more, has been little or nothing else than a band of robbers, who have conspired to monopolize the land, and, as far as possible, all other wealth. These conspirators, calling themselves kings, nobles, and freeholders, have, by force and fraud, taken to themselves all civil and military power; they keep themselves in power solely by force and fraud, and the corrupt use of their wealth; and they employ their power solely in robbing and enslaving the great body of their own people, and in plundering and enslaving other peoples. And the world has been, and now is, full of examples substantially similar. And the governments of our own country do not differ so widely from others, in this respect, as some of us imagine.

*

It is to this incentive alone that we are indebted for all the wealth that has ever been created by human labor, and accumulated for the benefit of mankind.

*

Except those great crimes, which the few, calling themselves governments, practise upon the many, by means of organized, systematic extortion and tyranny. And it is only the poverty, ignorance, and consequent weakness of the many, that enable the combined and organized few to acquire and maintain such arbitrary power over them.

*

That is, from September 1, 1873, to March 1, 1875.

T.28 Our Financiers: Their Ignorance, Usurpations, and Frauds (1877).↩

Title

[28.] Our Financiers: Their Ignorance, Usurpations, and Frauds. Reprinted from “The Radical Review” (Boston: A. Williams & Co., 1877).

- also online Shorter Works, vol. 2: </titles/2292#lf1531-02_head_040>

Text

OUR FINANCIERS: THEIR IGNORANCE, USURPATIONS, AND FRAUDS.

Our Financiers:

THEIR IGNORANCE, USURPATIONS, AND FRAUDS.

By LYSANDER SPOONER.

REPRINTED FROM “THE RADICAL REVIEW.”

BOSTON:

SOLD BY A. WILLIAMS AND COMPANY,

283 Washington Street.

1877.

[2] [3]

I.

THE great battle in Ohio for more money,—by which is here meant the political canvass for the year 1875,—in which the whole country participated, is still worthy of notice, not only because there is doubtless a widespread determination to fight it over again, but also because it affords a ludicrous, but much needed, illustration, as well as an irrefutable proof, of the prevailing ignorance on the subject of money.

That that violent, but ridiculous, contest may serve as a caution to the people against being drawn into the same, or any similar one, in future, is one purpose of this article. Its other purposes are to expose the usurpations and frauds by which the people are deprived of money, and to vindicate, as far as its limits will permit, the right of the people, by the use of their own property and credit, to supply themselves with such money as they can, and as much of it as they please, free of all dictation or interference from the government.

The question at issue in Ohio, in 1875, was the 3.65 interconvertible bond scheme; a scheme, of the practical operation of which the writers and speakers, on neither side, seemed to have the least real knowledge whatever. It would have had neither the good effects which its friends expected, nor the bad effects which its enemies predicted. That is to say, it would neither have provided “a currency equal to the wants of trade,” as claimed by its friends, nor would it have flooded the country with a depreciated currency, as predicted by its opposers. As a system for furnishing a permanent currency, either good or bad, it would have fallen utterly dead. Worse than that, instead of furnishing a permanent currency in place of that we now have, [4] it would have deprived us of the one we now have, without furnishing any substitute at all.

That such would have been its effect is evident from these considerations, namely:—

It is a settled principle that a paper currency depends, for its true and natural market value, wholly upon the redemption that is provided for it. It has, and it can have, no more true or natural market value than the property with which it is to be redeemed. A paper currency, therefore, that has no other redemption than that of being convertible into interest-bearing bonds, can be worth no more in the market than are the bonds themselves, and, consequently, no more than it is worth for conversion into the bonds. And it is worth nothing for conversion into bonds, unless there are some one or more persons who wish thus to convert it. In other words, it is this demand for the bonds, as investments, that alone gives the currency any value in the market. A convertible note of this kind, therefore, circulates as money only because some one or more persons want it for conversion. And it circulates only until it falls into the hands of such a person. When it falls into his hands, he converts it, and thus takes it out of circulation.

The destiny, therefore, of all such convertible paper, that is in circulation as money, is finally to be converted into bonds, and thus taken out of circulation. And there is then an end of it, so far as its being currency is concerned.

We saw the operation of this principle so long as the greenbacks were convertible into bonds. The conversion went on so rapidly that we should soon have had no greenbacks at all in circulation, had not the conversion of them into bonds been stopped by law. And our greenbacks now remain in circulation only because they are not convertible into bonds.

For the reasons now given, if our whole national debt were today in circulation as currency, having no other redemption than that of being convertible into 3.65 bonds, it would be worth for circulation no more than it would be worth for such conversion; and, as a natural consequence, it would rapidly, though not instantly, be converted, and thus taken out of circulation; and we should then have entirely lost it as a currency. And, as the scheme [5] proposes to prohibit all other currency, we should then be left with no currency at all.

The 3.65 bond scheme, therefore, instead of being a scheme for providing the country with a currency, is perfectly suicidal, so far as furnishing a currency is concerned. It is simply a scheme for providing a paper currency for circulation by withdrawing all such currency from circulation! It is absurdity run mad.

II.

But the advocates of the scheme will say that it provides that these bonds may be reconverted into currency. Yes, it does indeed provide that they may, but not that they must, be thus reconverted. And it offers no inducements whatever for such reconversion; because, if reconverted, the currency will then be worth no more in the market than the bonds are worth as investments; since all that will give the currency any value at all in the market will then, as before, be the simple fact that it (the currency) is convertible back into the same bonds from which it has just been reconverted!

The bonds are to be holden by men who preferred the bonds to the currency, when both had the same value in the market. And now the scheme contemplates that the country will go without any currency at all, until these same bondholders shall change their minds, and prefer the currency to the bonds, when both have still the same value in the market! Who can tell when the bondholders will do that? The bonds are their estates, their investments, on which they rely for their daily bread. They are the estates which they have preferred to all others, as a means of living. To presume that they will reconvert them into currency, is just as absurd as it would be to presume that a man who has just bought a farm, and relies upon it for his living; will sell it for money that will enable him to do nothing else so good for himself as to buy back the same farm that he parts with.

III.

But General Butler, who, I believe, claims to have been the author of this scheme, says that, “in case of a scarcity of money,” [6] “a demand for money by a high rate of interest will call forth these bonds.”1

He means by this that, in times of “scarcity of money,” “a high rate of interest”—that is, a higher rate than the bonds themselves bear—will induce a holder of these bonds to reconvert them into legal tender notes, in order to lend them!

This is certainly furnishing “more money” with a vengeance. The real value of the notes corresponds precisely to the value of a 3.65 interest-bearing bond, and General Butler would allow the people to have no money at all, except in some rare emergency, when the “scarcity” is so great as to induce them to give a higher rate of interest than the money is really worth,—enough higher to induce the bondholder to surrender his investments, and become a money lender instead.

This is equivalent to saying that nobody shall be permitted to borrow money, except in those emergencies when he will submit to be fleeced for the sake of getting it!

And to make it impossible for any body to borrow money, except at this extortionate rate, he would “prohibit by the severest penalties every other person, corporation, or institution from issuing any thing that might appear in the semblance of money!”

And this proposition comes from a man who proposes to furnish the people with “more money,” and thus save them from the extortions of the present money dealers!

However such an extortion might occasionally relieve an individual, who was so sorely pressed as to consent to be fleeced, it would do nothing towards supplying the people at large with money; because the money thus issued to an individual would not continue in circulation, unless it should constantly pass from hand to hand at a price beyond its true value; that is, at a price beyond its value for conversion. The result would be that the people could have no money at all, except upon the condition of their constantly giving more for the money than it was worth!

[7]

IV.

Another device of General Butler, by which he appears to think he could keep at least some of the currency in circulation, is this: He would make it “the legal tender of the United States for all debts due to or by the government or individuals.”

But this would add nothing at all to its real value; and it would have no appreciable, or certainly no important, effect in preventing the conversion of the currency into bonds; or, what is the same thing, in preventing a withdrawal of the currency from circulation; for the currency would still have no more real or true value for circulation than it would for conversion.

General Butler’s plan, therefore, amounts practically to this: He would allow the people no money at all, except on rare occasions, when, as he thinks, the “scarcity” would be so severe as to induce them to pay an extortionate price for it!

But, under such a system, there would really be no such thing as a rare and occasional “scarcity;” there would be nothing but constant, perpetual, and utter destitution. At least such would be the case, so soon as all the notes should have been converted into bonds.

The idea of allowing the people no money at all, except occasionally in times of “scarcity,” corresponds to one that should forbid the people to have any food at all, except occasionally in times of famine. Under such a system, it is plain there would never be a rare or occasional famine; but there would be, instead of it, a constant and perpetual one. So, under Butler’s scheme, there would never be any rare or occasional “scarcity of money;” but there would be a constant and perpetual destitution of it.

Yet he calls it a scheme for providing the people with more money! In reality, it is merely a scheme for depriving them of money altogether.

V.

Such being the real character of this 3.65 scheme, we are enabled to see the true character of the late battle in Ohio for and against it. And it is important to consider that, although the [8] battle was nominally fought in Ohio, the whole country took part in it. The whole country took part in it, because it was considered that the result in Ohio would very likely decide the result in the whole country.

Thus we had the ludicrous and humiliating spectacle of forty millions of people fighting a fierce and bitter contest for and against a scheme, of the real nature of which neither party knew any thing! One party thought it was a scheme for furnishing the money really needed for industry and trade. The other party thought it was a scheme for overwhelming the country with a depreciated currency. In reality, it was a scheme to deprive the country of money altogether!

If any body had any thing to fear from this system, it was the very party that advocated it; for they wanted more money and not less. And if any body had any thing to hope from the system, it was the party that opposed it; for they wanted less money and not more.

Here, then, were two opposing armies, each fighting with all fury against itself, under the belief that it was fighting its antagonist!

VI.

The question now arises: If all the statesmen (so-called), all the financiers and bankers, all the editors, all the violent writers and speakers, who took part in this contest, know no more about finance than to take such parts as they did either for or against this ridiculous and absurd scheme, how much do they know about the system which the industry and prosperity of the country really require?

And if we shall conclude that they do not know any thing, perhaps we may conclude that they should not quite so arrogantly assume to dictate to us what, or how much, money we shall, or shall not, have; nor, consequently, to decide (as it is their purpose to do) what, or how much, money all other property shall be sold for.

Perhaps we may even conclude that men who have demonstrated their ignorance beyond all cavil or controversy, as they have, and who, by their ignorance, or something worse, have brought upon forty millions of people such ruin and misery as [9] they have, ought to be exceedingly modest for the rest of their lives, especially on the subject of money.

Perhaps we may conclude that to paralyze the industry of the country for four, five, or six years together, at a loss of three, four, or five thousand millions of dollars per annum,—say, twenty thousand millions in all,—under pretence that it is necessary in order to raise, by five, ten, or fifteen per cent., the market value of eight hundred millions,—that is, to raise their value, say, one hundred millions in all,—perhaps, I say, we may conclude that to thus impoverish a people to the extent of twenty thousand millions, under pretence of saving or giving to somebody one hundred millions, is neither good financiering, good morals, nor good government; and that it indicates that there is something a great deal worse than sheer ignorance at work in the plans of the government.

Perhaps we may conclude that a dollar, in order to be a standard of value, must have something like a fixed value itself, which it will maintain against all competition; that, if it has any thing like such a fixed value, then ten, a hundred, a thousand, or a million of dollars must necessarily have ten, a hundred, a thousand, or a million times more value than one dollar has; and to say that, by the prohibition of all other money, one dollar can be made to have as much “purchasing power” as ten, a hundred, a thousand, or a million dollars, is only to say that, by the prohibition of all other money, the holder of the one dollar will be enabled to extort, in exchange for it, ten, a hundred, a thousand, or a million times more of other men’s property than the money is worth.

Perhaps we may conclude that the holders of the present stock of money, whose cardinal financial principle is that, by the prohibition of all other money, any small amount becomes invested with a “purchasing power” indefinitely greater than its true and natural market value, and who openly avow that that is their reason for insisting that all money shall be suppressed, except that small amount which they themselves hold, thereby virtually proclaim their purpose to be to so use their money as to extort, in exchange for it, an indefinite amount more of other men’s property than the money is worth. And perhaps we may conclude that a government which, on this [10] ground, as avowed by its most conspicuous members and partisans, maintains a hard monopoly of money, thereby virtually acknowledges itself to be a mere instrument in the hands of these extortioners, for accomplishing the purposes they have in view.

Perhaps we may conclude that it is indispensable to all honest and equitable traffic that the money that is paid for any other property should have the same amount of true and natural market value as the property that is given in exchange for it; and that the moment this principle is acknowledged, all justification for the interference of the government ceases; since it is the sole right of the parties to contracts to decide for themselves, in each case, what money, and what amount of money, is, and is not, a bona fide equivalent for the property that is to be given in exchange for it.

Perhaps, also, we may conclude that the notes of private persons or private companies, who have property with which to pay their notes, and who can be sued and compelled to pay them, with interest and costs from the time of demand, are quite as likely to give us a specie-paying currency, and are quite as deserving of the name of “honest money,” as are the notes of a government that has no property to pay with; that cannot be sued or compelled to pay; and that has no intention of paying, unless, or until, it can do so without relaxing the monopoly it is determined to maintain.

Perhaps we may conclude that a government, which, for ten years together, prohibits, by a ten per cent. tax, all specie-paying notes, and at the same time, by the grossest usurpation, makes its own irredeemable, depreciated, non-specie-paying notes a legal tender in payment of all private debts, cannot reasonably be credited (however loud may be its professions) with any burning desire either for “specie payments,” or for “honest money.”

Perhaps we may conclude that any privileged money whatever, whether issued by a government or by individuals, is necessarily a dishonest money; just as a privileged man is necessarily a dishonest man; and just as any other privileged thing is necessarily a dishonest thing. For this reason we may perhaps conclude that a government that constantly cries out for “honest money,” when it all the while means and maintains, and insists [11] upon maintaining, a privileged money, acts the part only of a blockhead or a cheat.

Perhaps we may conclude that, when the fraudulent pretences by which the monopoly of money has been thus far maintained, and the fraudulent purposes for which it has been maintained, have been so fully demonstrated that they can no longer be concealed or denied, and after the effects of the monopoly have been to impoverish the country to an amount at least twenty times greater than the whole amount of the privileged money,—perhaps we may conclude that, after all these results, the responsibility of the authors of the monopoly is not to be evaded, nor their motives justified, by any such mock freedom in banking as is offered to us, provided we will use only government bonds as banking capital, and come under all such regulations and conditions as the government may prescribe, and thus give up all right to bank upon any portion of the thirty thousand millions of other property which we have (or once had, and may have again); at least twenty thousand millions of which are better banking capital than any government bonds can be; and which we have a perfect right to use as banking capital, without asking any permission of the government, or coming under any of its regulations or conditions.

Perhaps we may conclude that this attempt of the government to delude us into the idea that we can have perfect freedom in banking, while deprived of our right to use the twenty or thirty thousand millions of banking capital we already have, and while restricted to the contemptible amount of capital we can have, or can afford to have, under the system proposed by the government, is very much like a proposal to establish perfect freedom in farming by requiring men to give up all the farms they now have, and buy some of the government lands in Oregon or Alaska, and there come under all such regulations and conditions as the government may prescribe.

Perhaps we may conclude that the establishment of a monopoly of money is equivalent to the establishment of monopolies in all the businesses that are carried on by means of money,—to wit, all businesses that are carried on at all in civilized society; and that to establish such monopolies as these is equivalent to condemning all persons, except those holding the [12] monopolies, to the condition of tributaries, dependents, servants, paupers, beggars, or slaves. Perhaps we may conclude that the establishment of a monopoly of money is also equivalent to a prohibition upon all businesses, except such as the monopolists of money may choose to license. And perhaps we may conclude that, if government were to prohibit directly all businesses, except such as it should choose to license, and, by direct grants, were to make all these licensed businesses subjects of monopoly, its acts, in so doing, would be no more flagrant tyrannies, and no more flagrant violations of men’s natural rights, than are its acts in establishing the single monopoly of money.

Perhaps, after we shall have been insulted and impoverished by a few more such cheats as the “specie payment” cheat, the “honest money” cheat, the “free banking” cheat, and all the other cheats to which the government has resorted, for the one sole purpose of maintaining that monopoly of money on which the last administration relied for its support, and which the present administration is evidently determined to maintain, we may conclude that it is time for the people to take the matter of money into their own hands, and assert their right to provide their own money, in their own way, free of all dictation or interference from the government.

Perhaps we may conclude that the right to live, and to provide ourselves with food, clothing, shelter, and all the other necessaries and comforts of life, necessarily includes the right to provide ourselves with money; inasmuch as, in civilized life, money is the immediate and indispensable instrumentality for procuring all these things. Hence we may perhaps conclude that a people who surrender their natural right to provide themselves with money, practically surrender their right to provide for their own subsistence; and that a government that demands such a surrender, or attempts to take from them that right, and give it as a monopoly to a few, is as necessarily and as plainly the mere instrument of that few, as it would be if it were to require the people to surrender their right to follow their occupations as farmers, mechanics, and merchants, and give all these occupations as monopolies into the hands of the same few to whom it now gives the monopoly of money.

[13]

Perhaps we may conclude that we want no special laws whatever, either of license, prohibition, or regulation, on the subject of banking; that bankers, like other men, should be free to make their own contracts, and then, like other men, be compelled to fulfil them; and that their private property, like the private property of all other men, should be holden to pay their debts.

Perhaps we may conclude that it is the natural right of every man, who has a dollar’s worth of property that can be taken by legal process and applied to the payment of a promissory note, to offer his note for that amount in the market; and that it is the natural right of every body that pleases, to accept that note in exchange for other property; and that it is also a natural right of every subsequent holder of that note to offer it again in the market, and exchange it for other property with whomsoever may choose to accept it.

And since, in this way, it is not only theoretically possible, but absolutely practicable, that, to say the least, a very large amount of the material property of the country should be represented by promissory notes, and thus made to aid in furnishing a solvent and legitimate currency; and since nobody can be required to accept such a currency unless he pleases; and since nobody who chooses to accept it can either say that he is wronged, or be said to wrong any body else, by accepting it,—perhaps we may conclude that such a currency as this—if the people, or any portion of them, prefer it to any other that is offered them—can not rightfully be prohibited.

Perhaps we may conclude that no considerable accumulations of coin are necessary to maintain specie payments; that, where banking is free, and the private property of the bankers is holden for the debts of the banks, the business of banking naturally and necessarily falls into the hands of men of known wealth, whose notes challenge the scrutiny, and command the confidence, of the whole community; that, as these men, if permitted to do it, are always ready to supply the market with the greatest amount of notes that can be kept in circulation, the public have no temptation to accept any doubtful notes, and doubtful notes can consequently get no circulation; that, when the public are thus satisfied of the solvency of the notes they hold, they prefer them to coin, and the bankers rarely have any occasion to redeem them otherwise [14] than by receiving them in payment of the notes they discount; that, as all the bank notes issued are wanted to pay the notes discounted, and are, at short intervals after their issue,—say in two, three, or four months, on an average,—returned to the banks in payment of notes discounted, the bankers, as a general rule, have no need to provide for any other redemption; and that, consequently, coin, unless in very small amounts, is merely dead capital, for which the bankers have no use whatever.

And, if the practicability or utility of this system should be doubted, perhaps we may refer the doubters to the example of Scotland, where, for eighty years,—from 1765 to 1845,—all the banks of Scotland, with two or three exceptions, stood upon the principle of the individual liability of their stockholders; enjoying perfect freedom in the issue of their notes, subject only to these restrictions, namely, that they should issue no notes below one pound, and none except those made payable on demand.1 The result was that Scotland had the best system of banks, or at least the best association of banks, for solvency, stability, and utility, that was ever known in Europe.2 During all that period of eighty years, while the banks of England were failing by the hundreds, and many of them proving utterly rotten, and while all that did not prove rotten repeatedly suspended specie payments,—at one time for more than twenty years,—the banks of Scotland never suspended specie payments, and their notes were always equal to coin. And, by introducing manufactures, they raised Scotland, within that period, from a miserable poverty-stricken condition (the effect of her cold climate and barren soil) to a condition of prosperity and wealth second to that of no other people in Europe. These facts, and others that cannot here be enumerated at length, demonstrate that, where banks rest upon the individual liability of stockholders, or upon any other basis that gives to the public an absolute guarantee of the solvency of the banks, banking may be made perfectly free, and the amount of currency as great as can be kept in circulation, and yet that it will always be equal to coin. And they prove also that all the [15] arguments that are now used to justify restraints upon banking, and limitations upon the amount of currency, in order to maintain specie payments, proceed wholly from gross ignorance or fraud.1

Perhaps we may conclude that money is simply property that is cut up, or divided, into such pieces or parcels as are convenient and acceptable to be given and received in exchange for other property; and that any man who has any property whatever that can be cut up, or divided, into such pieces or parcels, has a perfect legal and moral right thus to cut it up, and then freely offer it in the market, in competition with all other money, and in exchange for any other commodity, that may there be offered in competition with, or in exchange for, it. Perhaps we may conclude that the simple fact of these pieces or parcels being called money, or not called money,—of their bearing the stamp or license of the government, or not bearing it,—has nothing to do with his right to offer them in the market, or to sell them, or lend them, or exchange them, on such terms as the parties to the contracts may mutually agree upon; that the simple facts that they are property,—property that is naturally vendible,—and that they are his property, entitle him to sell them, or lend them, to whomsoever may wish to buy, or to borrow, them; and to do all this on such terms as the parties, free of all interference from the government, may agree upon. And perhaps we may conclude that these pieces or parcels may as rightfully be bought, sold, and exchanged (if the parties so agree) by means of contracts on paper—notes, checks, drafts, bills of exchange, or whatever else—promising to deliver them on demand, or at times agreed on, as by actual delivery of the parcels themselves, at the time of the contract.

Perhaps we may conclude that, instead of Congress having the right, in General Butler’s phrase, to “prohibit, by the severest penalties, every other person, corporation, or institution [than the government itself, or those whom it licenses] from issuing any [16] thing that might appear in the semblance of money,” it has no such right whatever, nor any semblance of such a right; that it has no color of right in the matter, beyond the simple “power to provide for the punishment of counterfeiting the securities and current coin of the United States;” that, so far from their having any such right, it is one of the first and most sacred of all the duties of any and every government (that has any duties at all) to protect every man in his natural right to offer in the market every vendible or loanable commodity he has to sell, or to lend; and to sell it, or lend it, to any and every man who wishes to buy it, or borrow it; and that it is the duty of the government to protect him in his liberty to do this by any and every possible form of contract—whether check, note, draft, bill of exchange, or whatever else—that is naturally and intrinsically just and obligatory.

Perhaps we may conclude that it is as much the duty of government to protect each and every man, who has any thing deserving the name of money, or that men may choose to call money, in his right to sell or lend it to any and every other man who may choose to accept it as money, as it is to protect him in his right to sell or lend any other property whatever, which he may wish to sell or lend, and which other men may wish to buy or borrow.

Perhaps we may conclude that the simple fact that men may, or may not, choose to call any particular commodity money, makes no difference whatever in the nature, character, quality, or value of the commodity itself; and therefore cannot affect the right of men to buy, or sell, or lend, or borrow it; or to give it in exchange for any other property, on such terms as the parties (without fraud) may mutually agree upon.

Perhaps we may conclude that all men, who are presumed competent to make reasonable and obligatory contracts, must also be presumed to be just as competent to judge of the value of any money that may be offered them, as the men who offer it are to judge of the value of the commodities they are to receive in exchange for it.

Perhaps, in short, we may conclude that it is one of the natural rights of men to sell their property for such money, and as [17] much of it, as is offered to them for it, and as they choose to accept.

Perhaps we may also conclude that the idea of providing the people with money by prohibiting all money except such as the government itself may specially provide or license, is just as absurd, preposterous, and tyrannical as would be the idea of providing the people with food, clothing, or shelter, by prohibiting all food, clothing, or shelter, except such as the government itself may specially provide or license.

Perhaps we may conclude that, as it is with all other commodities, so it is with money, namely, that free competition in producing it and offering it in the market is the sure, and only sure, way of guaranteeing to us the greatest supply, the best article, and on the best terms; that, inasmuch as banking is but a very recent invention,—but one on which all industry and all other inventions depend mainly for their efficiency,—it is just as absurd to suppose that we have already attained perfection in it, as it would be to suppose we had attained perfection in any or all the other arts by which industry is carried on; that it is, therefore, just as absurd and suicidal to prohibit all new experiments and inventions in banking, as it would be to prohibit all new experiments and inventions in agriculture, mechanics, or any of the other arts of life; and that, to be consistent, those who would prohibit all new experiments and inventions in banking ought also to insist that the patent office be closed, and that all new experiments and inventions in any and every art and science whatsoever be prohibited.

Perhaps we may conclude that, however much money, or however many kinds of money, may be offered in the market, there is no danger that the holders will give any more of it in exchange for other men’s property or labor, than such property or labor is worth; and that, therefore, there is no danger that the prices of either property or labor will ever be too high; or, what is the same thing, that property or labor will ever bring any more money than it is worth.

Perhaps we may conclude that it is time that those men who claim that gold and silver coins, by the monopoly now given to them as money, are kept at a price far above their true and [18] natural value as metals, and who claim that they should still be kept at that price by restrictions upon all other money, were taught that all honest and equitable commerce requires that each and every commodity that may be sold at all—whether it be called money, or by any other name—should be sold only at the price it will bear in free and open market, and subject to the free competition of every other commodity that may there be offered in competition with, or in exchange for, it; that the free and open market is as much the true and only test of the true and natural market value of every thing that can be called money, as it is of the true and natural market value of every thing that is exchanged for money.

Perhaps we may conclude that, since industry is an animal, so to speak, that feeds and lives on money; since its strength, activity, and growth depend mainly upon the amount of money that is furnished to it; since we as yet know of no limits to its increase in power, except the limits set by the money that is supplied to it; since, when it is fully supplied with money, it will create two, five, ten, a hundred, often thousands, sometimes millions, and even hundreds and thousands of millions, of dollars of wealth, for every dollar that it consumes,1 but, when stinted or deprived of money, necessarily languishes or dies; and since, when it languishes or dies, mankind languish or die with it,—perhaps, in view of these facts, we may conclude that to stint or deprive it of money is not merely bad economy, but fatuity and suicide.2

And, finally, perhaps we may conclude that a government [19] that sacrifices a million of lives to maintain its power, and then uses that power to trample in the dust all the natural rights of the survivors, and to cheat, plunder, and starve them, for the mere profit of the holders of eight hundred millions of money, is not a government that should be tolerated for any great length of time.

Lysander Spooner.

Endnotes

1

See his speech in New York, October 14, 1875, reported in the New York “Daily Graphic” of October 15.

1

The first of these restrictions only impaired the usefulness of the banks, without adding any thing to their solvency.

2

And better than any ever known in the United States, unless, possibly, those in Rhode Island and one or two other States.

1

We can have a much better system even than the Scotch; better than the system of promissory notes; one that will furnish more money (if more can be used), and be more easy and convenient for the bankers and better for the public. But freedom to make experiments with any and all systems that men may choose to experiment with is what is necessary to give assurance, at all times, that we have the best possible system.

1

The estimate in the text is no extravagance. Suppose we could ascertain the precise number of dollars and cents, or of pounds, shillings, and pence, expended by such men as Watt, and Arkwright, and Stephenson, and Morse, and Whitney, and Fulton, and Woodworth, and Hoe, and McCormick, and so many others, in making and perfecting their inventions,—what proportion would those figures bear to those that should even attempt to measure the immeasurable value of the inventions themselves? And what must we think of the folly, absurdity, and tyranny of that dearth of money which our monopolists of money would have maintained if they could; which would have made these inventions impossible; and which now withholds them from four-fifths, perhaps from nine-tenths, of mankind?

2

We have all heard of the bumpkin who tried an experiment to ascertain upon how little food his horse could be made to subsist. His experiment succeeded to his entire satisfaction, until, from some cause he could not understand, his horse happened to die. Stupid as he was, he may possibly have suspected it was from a want of food; for we do not hear that he ever tried the experiment again. But our financial bumpkins (or something worse) persist in trying the same experiment over and over again. The industry upon which they try it invariably dies; but they learn no wisdom, or caution (or honesty) from the results.

T.29 The Law of Prices: A Demonstration of the Necessity for an Indefinite Increase of Money (1877).↩

Title

[29.] The Law of Prices: A Demonstration of the Necessity for an Indefinite Increase of Money. Reprinted from “The Radical Review” (Boston: A. Williams & Co., 1877).

- also online Shorter Works, vol. 2: </titles/2292#lf1531-02_head_042>

Text

THE LAW OF PRICES:

A DEMONSTRATION OF THE NECESSITY FOR AN INDEFINITE INCREASE OF MONEY.

THE

LAW OF PRICES:

a demonstration of

THE NECESSITY FOR AN INDEFINITE INCREASE OF MONEY.

by

LYSANDER SPOONER.

reprinted from “the radical review.”

BOSTON:

A. WILLIAMS AND COMPANY,

283 Washington Street.

1877.

[2] [3]

I.

THE writers on money seem never to have obtained the first glimpse of the fundamental law which governs prices, and which necessitates a constant and indefinite increase in the volume of money. That law may be illustrated in this manner:

Suppose an island cut off from all communication with the rest of the world, and inhabited by one hundred men. Suppose that these hundred men know no industry except the production of wheat; that they produce annually one thousand bushels, each man producing ten bushels, which is enough for his own consumption. Suppose further that these hundred men have money to the amount of five dollars each in gold, silver, and copper coins, and that these coins are valued by them as highly as similar coins are now by us. What will be the price of wheat among these men, compared with the coins? Plainly, it will bear no price at all. Each man producing for himself all he can eat, no one has any occasion to buy. Therefore none can be sold at any price.

But suppose that one after another of these hundred men leave wheat-growing and engage in the production of other commodities,—each producing a different commodity from all the others,—until there shall be a hundred different commodities produced; only one man being left to produce wheat. And suppose that this one man has increased his product from ten bushels to one thousand. There is now just as much wheat as there was when all were employed in producing it. The only differences are, first, that the whole amount is produced now by one man, where [4] before it was produced by a hundred men; and, secondly, that the ninety-nine men have each engaged in the production of some commodity different from that produced by any other, but of which, we will suppose, all the others wish to purchase each his proportionate share for consumption.

There is now a hundred times as much wealth produced as when all produced wheat and nothing else. But each kind has only a single producer, while it finds a hundred consumers. And each man’s product, we will suppose, has the same value with every other man’s product.

What, now, will be the price of wheat among these hundred men, relatively to the coins? Doubtless a dollar a bushel. When the first man abandoned wheat-growing, and betook himself to some other occupation, he created a demand for ten bushels of wheat, which he still wanted for consumption as before. This demand for ten bushels would doubtless be sufficient to give wheat the price of one cent per bushel where it had no price before. When a second man of the hundred abandoned wheat-growing, he created a demand for ten bushels more; making twenty bushels in all. This increased demand would doubtless be sufficient to raise the market price of wheat to two cents a bushel. When a third man of the hundred left wheat-growing for some other pursuit, his demand for ten bushels would raise the market price another cent; and so on, until by the time the ninety-nine had left wheat-growing, the continually increasing demand would have raised the price to ninety-nine cents a bushel; for convenience of round numbers, say a dollar a bushel.

Here, then, wheat has been raised from no price at all to a dollar a bushel, not because there is any less wheat produced, or any more consumed, than before, but solely because the whole thousand bushels are now produced by one man, instead of being produced, ten bushels each, by the hundred different men who were to consume it; and because, further, each of the ninety-nine men who have left wheat-growing is able to purchase wheat, inasmuch as he has been producing some other commodity which brings him as good a price as the wheat brings to the man who still produces wheat.

Under this new state of things, then, the man who continues to produce wheat produces a thousand bushels, worth a dollar a [5] bushel; that is, a thousand dollars’ worth in all. Each of the other ninety-nine produces an equal amount of market value in some other commodity. The whole hundred men, then, produce wealth that has now a market value of one hundred thousand dollars, where originally they had produced nothing that had any market value at all.

This change in the price of wheat has been produced, then, solely by reason of the diversity of industry and production that has taken place among these hundred men. And the market prices of all the other ninety-nine commodities have been affected by the same law, and to the same extent, as has been the price of wheat.

Here, then, is a hundred thousand dollars’ worth of commodities produced, each man producing a thousand dollars’ worth.

As each man retains a hundredth part of his product—that is, ten dollars’ worth—for his own consumption, he has nine hundred and ninety dollars’ worth for sale. The whole hundred men, therefore, have one hundred times nine hundred and ninety dollars’ worth for sale, which is equal to ninety-nine thousand dollars in all; for convenience of round numbers, say one hundred thousand dollars.

The hundred men, having each five dollars in coins, have in the aggregate five hundred dollars. To make the purchases and sales of these hundred thousand dollars’ worth of commodities will require each of these five hundred dollars to be exchanged for commodities, on an average, two hundred times. That is, in carrying on the commerce of these hundred men for a year, their whole stock of money must be exchanged, on an average, once in a little less than two days. Or if we reckon but three hundred business days in a year, we shall find that the whole stock of money must be exchanged, on an average, once in every day and a half.

Such rapidity of exchange would be practicable enough if the holders of the coins should all part with them readily at their true and natural value, instead of holding them back in the hope of getting for them more than they were really worth. But where there was so active a demand for the coins as to require that the whole stock be sold, on an average, once in every day and a half, it is natural to suppose that the holders of the coins [6] would hold them back, in order to get more for them than their true and natural value. And in so far as they should do so, they would obstruct trade, and by obstructing trade obstruct and discourage production, and thus obstruct the natural increase of wealth.

II.

But suppose, now, that the number of men on this island be increased from one hundred to one thousand, and that they are all engaged in producing wheat only; each man producing ten bushels, which is all he wants for his own consumption. And suppose that each man has five dollars in gold, silver, and copper coins. What will be the price of wheat among these men, relatively to the coins? Clearly, it will have no market price at all, any more than it had when there were but a hundred men.

But suppose that nine hundred and ninety-nine of these thousand men leave wheat-growing, and engage each in the production of a commodity different from that produced by any one of the others. And suppose that the one who still continues to produce wheat is able, from his increased science, skill, and machinery, to produce ten thousand bushels—ten bushels for each of the thousand men—where before he produced only ten bushels for himself.

There is now just as much wheat produced as there was before. But it is now all produced by one man—nine hundred and ninety-nine thousandths of it being produced for sale—instead of being produced by a thousand men, each producing ten bushels for his own consumption.

What, now, will be the price of wheat among these thousand men? Why, being governed by the same law that has already been illustrated in the case of the hundred men, it will go on rising one cent at a time as each man leaves wheat-growing for some other pursuit, until, when nine hundred and ninety-nine shall have left wheat-growing, and shall have become purchasers of wheat, instead of producers, the price will be nine hundred and ninety-nine cents a bushel—for convenience of round numbers, say ten dollars a bushel—where before it bore no price at all.

In this state of things, then, the man who still continues to [7] produce wheat will produce ten thousand bushels; worth, in the market, ten dollars a bushel, or a hundred thousand dollars in all.

Here, then, we have the price of a hundred thousand dollars for ten thousand bushels of wheat, which, when produced by a thousand different men, each producing ten bushels for his own consumption, had no market value at all. And the other nine hundred and ninety-nine men, we will suppose, produce each a different commodity from all the others; the whole annual produce of each having the same market value as the wheat-grower’s crop of wheat. The market value, then, of all the products of the whole thousand men will be one thousand times one hundred thousand dollars—that is, one hundred million dollars—where before, when they were all producing wheat and nothing else, their whole products had no market price at all.

When we consider that each producer retains for his own consumption but a thousandth part of his products (a hundred dollars’ worth), and that, consequently, nine hundred and ninety-nine parts of all these products are not only to be sold, but to be sold twice, as they would now have to be,—that is, once by the producer to the merchant, and once by the merchant to the consumer,—we see that there will be sales to the amount of one hundred and ninety-nine million eight hundred thousand dollars—for convenience of round numbers, say two hundred million dollars—where before, when all were producing wheat, there was no such thing as a sale of a cent’s worth of any thing.

These thousand men, we have supposed, had each five dollars in coins—making five thousand dollars in all—with which to make these purchases and sales of two hundred millions. How many times over will all these coins, on an average, have to be bought and sold, in order to effect these exchanges? Dividing two hundred millions by five thousand, we have the answer; namely, forty thousand times! Dividing this number by three hundred,—which we will suppose to be the number of business days in a year,—we find that, in order to make their exchanges, their whole stock of money must be bought and sold, on an average, one hundred and thirty-three times every day!

Thus we see that one thousand men, with such a diversity and amount of production as we have supposed, would have two thousand times as many purchases and sales to make as the one hundred [8] men. And in making these purchases and sales, we see that their whole stock of money would have to be bought and sold two hundred times oftener than would the whole stock of money of the one hundred men in making their purchases and sales of one hundred thousand dollars. We see, too, that, if we call eight hours a day,—that being the usual number of business hours,—their whole stock of money would have to be bought and sold, on an average, sixteen times over every hour, or once in every four minutes; whereas the whole stock of money of the one hundred men would have to be bought and sold only once in a day and a half; or—calling eight hours a day—once in twelve hours.

Such, let it be specially noticed, is the difference in the rapidity required in the purchase and sale of money in making the exchanges among a thousand men, on the one hand, and a hundred men, on the other, although the thousand men have the same amount of money, man for man, as the hundred men; the thousand men having five thousand dollars, and the hundred having but five hundred dollars.

This illustration gives some idea of the effect produced upon prices by the expansion of industry and the diversity of production. And yet the writers on money tell us that a large number of men need no more money, man for man, than a small number; that, if a hundred men need but five hundred dollars of money, a thousand men will, by the same rule, need but five thousand dollars.

In the case already supposed,—of the one thousand men,—how far would their five thousand dollars avail as money towards making their exchanges of two hundred million dollars? Plainly, they would avail nothing. The holders of them, seeing the necessities of the people for money, would hold back their coins, and demand so much more than their true and natural value as to put a stop substantially to all production, except of such few things as could be exchanged by barter, or as each one could produce for his own consumption.

The obvious truth is that, in order to carry on their commerce with money at its true and natural value, and consequently without obstruction or extortion from the money holders, it is necessary that these thousand men, with their increased diversity and [9] amount of production, should have two hundred times as much money, man for man,—and two thousand times as much in the aggregate,—as was necessary for the one hundred men, as before supposed.

In other words, the thousand men have two hundred million dollars of sales to make, where the hundred men had but one hundred thousand. Dividing two hundred million by one hundred thousand, we find that the thousand men, with such diversity and amount of production as we have supposed, have two thousand times as many sales to make as the one hundred had, and consequently that they require two thousand times as much money as did the one hundred.

III.

But to show still further the ratio in which diversity of industry tends to increase the prices of commodities, relatively to any fixed standard, let us suppose that the number of men on this island be still further increased from one thousand to ten thousand. And suppose that all these ten thousand are engaged in producing wheat alone; each producing ten bushels for his own consumption, that being all he wants. And suppose they have each five dollars in gold, silver, and copper coins. What will be the price of wheat, relatively to the coins? Clearly, it will have no price at all, not even so much as one cent a bushel.

But suppose that all but one of these ten thousand men should leave wheat-growing, and engage in other industries; each one producing a different commodity from all the others. And suppose that the one who still continues wheat-growing has acquired such science, skill, and machinery, that he is now able to produce a hundred thousand bushels—that is, ten bushels each for ten thousand men—where before he only produced ten bushels for himself.

What will now be the price of wheat among these ten thousand men? Why, by the same law that has been already illustrated it will be ninety-nine dollars and ninety-nine cents a bushel—for convenience of round numbers, say one hundred dollars a bushel—where before it had no market value at all.

And yet there is just as much wheat produced as there was [10] before, and every man gets just as much wheat to eat as he had before, when all were producing wheat.

In this state of things, the one hundred thousand bushels of wheat produced by one man at a hundred dollars a bushel—which will then be its market value—are worth one hundred thousand times one hundred dollars; that is, ten million dollars. And suppose that all the other nine thousand nine hundred and ninety-nine men are each engaged in an industry as profitable as that of the remaining wheat-grower. The aggregate production of the whole ten thousand men will now have a market value equal to ten thousand times ten million dollars; that is, one hundred thousand million dollars.

And if we suppose that all these commodities are to be sold1 three times over,—that is, once by the producer to the wholesale dealer, once by the wholesale dealer to the retailer, and once by the retailer to the consumer,—we shall see that there are to be sales equal to three hundred thousand million dollars, where before, when all were producing wheat and nothing else, there was no sale of a cent’s worth of any thing, and no market value at all for any thing.

Now suppose that the coins which these men had have remained fixed at the same value they had when the men were all producing wheat. How many times over, then, must they necessarily be bought and sold in the course of a year, in order to effect the purchase and sale of these three hundred thousand millions—or one hundred thousand millions three times over—of property that are to be exchanged?

There are ten thousand men, each having five dollars in coins; that is, fifty thousand dollars in all. Dividing three hundred thousand millions by fifty thousand, we find that the whole of these fifty thousand dollars in coins must be bought and sold six million times! Six million times annually, to effect the exchanges of the products of ten thousand men!

Dividing six million by three hundred (which we will suppose to be the number of business days in a year), we find that, on an average, their whole stock of money must be bought and sold [11] twenty thousand times over every day. Or supposing the business day to be eight hours, the coins would all have to be bought and sold twenty-five hundred times over every hour; equal to forty-one and two-thirds times every minute.

And this happens, too, when the ten thousand men have the same amount of coin, man for man, as the one hundred and the one thousand men had in the cases before supposed.

Thus we see that, with such a diversity and amount of production as we have supposed, the exchanges of the ten thousand men would require that their whole stock of money should be bought and sold one hundred and fifty times oftener than the whole stock of the one thousand men, and thirty thousand times oftener than the whole stock of the one hundred men.

We also see that, in the cases supposed, the ten thousand men, having three hundred thousand millions of exchanges to make, have fifteen hundred times as many as the one thousand men, who had but two hundred millions; and that they have three million times as many exchanges to make as the one hundred men. Consequently the ten thousand men require fifteen hundred times as much money as the one thousand men, and three million times as much money as the one hundred men.

IV.

According to the foregoing calculations, the ratio of increase required in the volume of money is this: Supposing the diversity and amount of production to keep pace with the increase in the number of men, and supposing their commodities to be sold but once,—that is, directly from producer to consumer,—a hundred men would require a thousand times as much money as ten men; a thousand men would require a thousand times as much money as a hundred men; ten thousand men would require a thousand times as much money as a thousand men; and so on.

But inasmuch as, in the case of a thousand men, their commodities would have to be sold twice,—that is, once by the producer to the merchant, and once by the merchant to the consumer,—the thousand men would require two thousand times as much money as the hundred men. And inasmuch as, in the case of the ten thousand men, their commodities would have to be [12] sold three times over,—that is, once by the producer to the wholesale dealer, once by the wholesale dealer to the retailer, and once by the retailer to the consumer,—the amount of money required, instead of being either one thousand or two thousand times as much as in the case of the one thousand men (whose commodities were sold but twice), would be one and a half thousand times (as three sales are one and a half times as much as two)—that is, fifteen hundred times—as much as in the case of the one thousand men.

Stating the results of the preceding calculations in the simplest form, we find that different numbers of men, having a diversity and amount of production corresponding to their numbers, in making their exchanges with each other, require money in the following ratios, relatively to each other; namely,—

10 men require

$100

100 men require

100,000

1,000 men require

200,000,000

10,000 men require

300,000,000,000

But as the same money could be used many times over in the course of a year, they would not need an amount of money equal to the amount of their annual exchanges. If, then, we suppose the aggregate of their annual exchanges to be as above, and their whole stocks of money to be used three hundred times over in a year,—that is, once a day, calling three hundred the number of business days in a year,—we find that the stocks of money required would be as follows:—

10 men would require

$ .33⅓

100 men would require

333.33⅓

1,000 men would require

666,666.33⅓

10,000 men would require

1,000,000,000.00

Or, to state the case in still another form, supposing their aggregate annual exchanges to be as above, and supposing their whole stocks of money to be bought and sold three hundred times over in the year, the money required, per man, would be as follows:—

[13]

10 men would require

$ .03⅓ each.

100 men would require

3.33⅓ each.

1,000 men would require

666.66 each.

10,000 men would require

100,000.00 each.

If any body thinks he can dispute these figures, let him attempt it. If they cannot be disputed, they settle the law of prices.

V.

The foregoing suppositions are, first, that the ten thousand men came finally to have ten thousand different kinds of commodities where they originally had but one,—namely, wheat; secondly, that they finally came to have ten thousand times as much wealth, in quantity, as they had originally, when all were producing wheat; thirdly, that wheat, which at its first sales brought only one cent a bushel, came afterwards to sell for ten thousand cents a bushel,—although the amount of wheat produced, and the supply of wheat for each individual, were the same in the one case as in the other; fourthly, that the same effect is produced upon the prices of all the rest of the ten thousand different kinds of commodities as upon the price of wheat; and, fifthly, that the annual sales made by the ten thousand men amounted finally to three hundred thousand million dollars, where their first sales had amounted to but ten cents,—the amount which the first man who left wheat-growing paid for his yearly supply of ten bushels.

It is not necessary to suppose that such a diversity and amount of production will ever be realized in actual life, although that is not impossible. It is sufficient that these figures give the law that governs prices, and consequently demonstrate that a constant and enormous increase of money must be necessary to keep pace with the increase of population, wealth, and trade, if we wish to give free scope to diversity and amount of production.

Unless money should be increased so as to keep pace with this increased demand, the result would be, first, obstruction to trade; secondly, obstruction to, and discouragement of, industry; and thirdly, a corresponding obstruction to the increase of wealth.

In fact, unless the amount of money were increased, these [14] hundred men, thousand men, and ten thousand men, instead of having a hundred, a thousand, or ten thousand different kinds of commodities, would advance very little beyond the state they were in when all were producing wheat and nothing else. Some feeble attempts at other industries might possibly be made, but their money, like the shells and wampum of savages, would aid these attempts but slightly; and the men, unless they invented some other money, would either remain absolute savages, or attain only to a very low state of barbarism.

The practical question, then, is whether it is better that these ten thousand men should remain mere savages, scratching the earth with rude sticks and stones to produce each ten bushels of wheat, or whether it is better that they should all have the money—which stands in political economy for all the ingenuity, skill, science, machinery, and other capital which money can buy—that may be necessary to enable them to produce, in the greatest possible abundance, and of the greatest possible excellence, all the ten thousand commodities which will contribute to their happiness.

A full discussion of this subject would require much more space than can here be given to it. It may perhaps be continued at a future time, if that should be necessary. But enough has doubtless now been said to show the general law that governs prices, and consequently to show the necessity for an immense increase of money; an increase dependent upon the diversity and amount of production and the natural laws of trade applicable thereto; such an increase as no legislation can ascertain beforehand, or consequently prescribe.

Lysander Spooner.

Endnotes

1

All but ten millions—a ten thousandth part of the whole—would have to be sold, since each man would retain for his own consumption only a ten thousandth part of what he produced; namely, one thousand dollars’ worth.

T.30 Gold and Silver as Standards of Value: The Flagrant Cheat in Regard to Them (1878).↩

Title

[30.] Gold and Silver as Standards of Value: The Flagrant Cheat in Regard to Them. Reprinted from “The Radical Review” (Boston: A. Williams & Co., 1878).

- also online Shorter Works, vol. 2: </titles/2292#lf1531-02_head_044>

Text

GOLD AND SILVER AS STANDARDS OF VALUE:

THE FLAGRANT CHEAT IN REGARD TO THEM.

Gold and Silver

as

STANDARDS OF VALUE:

THE FLAGRANT CHEAT IN REGARD TO THEM.

By LYSANDER SPOONER.

reprinted from “the radical review.”

BOSTON:

A. WILLIAMS AND COMPANY,

283 Washington Street.

1878.

[2] [3]

ALL the usurpation, and tyranny, and extortion, and robbery, and fraud, that are involved in the monopoly of money are practised, and attempted to be justified, under the pretence of maintaining the standard of value. This pretence is intrinsically a false one throughout. And the whole motive for it is to afford some color of justification for such a monopoly of money as will enable the few holders of gold and silver coins (or of such other money as may be specially licensed and substituted for them) to extort, in exchange for them, more of other men’s property than the coins (or their substitutes) are naturally and truly worth. That such is the fact, it is the purpose of this article to prove.

In order to be standards by which to measure the values of other things, it is plain that these coins must have a fixed and definite—or, at least, something like a fixed and definite—value of their own; just as a yard-stick, in order to be a standard by which to measure the length of other things, must necessarily have a fixed and definite length of its own; and just as a pound weight, in order to be a standard by which to measure the weight of other things, must necessarily have a fixed and definite weight of its own. It is only because a yard-stick has a fixed and definite length of its own that we are enabled to measure the length of other things by it. It is only because a pound weight has a fixed and definite weight of its own that we are enabled to measure the weight of other things by it. For a like reason, unless gold and silver coins have fixed and definite—or, at least, something like fixed and definite—values of their own, they can serve no purpose as standards by which to measure the values of other things.

[4]

The first question, then, to be settled is this,—namely, what is that fixed or definite value (or something like a fixed or definite value) which gold and silver coins have, and which enables them to be used as standards for measuring the values of other things?

The answer is that the true and natural market value of gold and silver coins is that value, and only that value, which they have for use or consumption as metals,—that is, for plate, watches, jewelry, gilding, dentistry, and other ornamental and useful purposes. This is the value at which they now stand in the markets of the world, as is proved by the fact that doubtless not more than one-tenth, and very likely not more than one-twentieth, of all the gold and silver in the world (out of the mines) is in circulation as money. All the rest is in plate, watches, jewelry, and the like; except that in some parts of the world, where property in general is unsafe, large amounts of gold and silver are hoarded and concealed to prevent their being taken by rapacious governments, or public enemies, or private robbers. Leaving these hoards out of account, doubtless ninetenths, and very likely nineteen-twentieths, of all the gold and silver of the world are in other forms than coin.

And as fast as new gold and silver are taken out of the mines, they are first carried to the mints, and made into coins; then they are carried all over the world by the operations of commerce, and given in exchange for other commodities. Then the goldsmiths and silversmiths, in every part of the world (unless among savages), are constantly taking these coins and converting them into such articles of plate, jewelry, and the like as they have call for. In this way the annual crops of gold and silver that are taken from the mines are worked up into articles for use as regularly as the annual crops of breadstuffs are consumed as food, or as the annual crops of iron, and cotton, and silk, and wool, and leather are worked up into articles for use.

And when the coins have thus been wrought into articles for use, they for ever remain so, unless these articles become unfashionable, or for some other reason undesirable. In that case, they are sent again to the mint, and converted again into coin; then put into circulation again as money; then taken out of circulation again by the goldsmiths and silversmiths, and wrought [5] again into plate, jewelry, and the like, for use. They remain in circulation as money only while they are going from the mint to the goldsmiths and silversmiths. And this route is a very short and quick one. An old coin is rarely seen, unless it has been hoarded.1

Unless new gold and silver were being constantly taken from the mines, and old and unfashionable plate and jewelry were being constantly recoined, these metals would soon disappear altogether as money.

All this proves that they have no true or natural value as money beyond their value for use or consumption as metals. If they were worth more as money than they are for use or consumption as metals, they would, after being once coined, remain for ever in circulation as money, instead of being taken out of circulation and appropriated to these other uses.

In Asia, where these metals have been accumulating from time immemorial, and whither all the gold and silver of Europe and America—except so much as is caught up and converted into plate, watches, jewelry, etc.,—is now going, and has been going for the last two thousand years,2 very small amounts only are in circulation as money. Instead of using them as money, the people—or so many of them as are able—cover themselves with jewelry, fill their houses with plate, and their palaces and temples with gold and silver ornaments. Instead of investing their surplus wealth in fine houses, fine clothing, fine furniture, fine carriages, etc., as Europeans and Americans do, it is nearly all invested in gold, silver, and precious stones. In every thing else they are miserably poor. Even the rich are so poor that they cannot afford to indulge, as we do, in such luxuries as costly dwellings, clothing, furniture, and the like, which require frequent repairs, or quickly decay, or wear out with use. Hence their preference for ornaments of gold, silver, and precious stones, which never wear out, and retain their value for ever.

In China, which has at least a fourth, and perhaps a third, of all the population of the globe, gold and silver are not coined at [6] all by the Government. The only coin that is coined by the Government, and that is in circulation as money, is a small coin, of a base metal, worth no more than a fifth, sixth, or seventh of one of our cents. This coin is the common money of the people. And gold and silver are not in circulation at all as money, except some few foreign coins, and some plates, bars, or nuggets of gold and silver that pass by weight, and are generally weighed whenever they pass from one person to another.

In India, among two hundred millions of people, although the few rich have immense amounts of gold and silver plate and ornaments, very little gold and silver is in circulation as money. The mass of the people have either no money at all,—taking their pay for their labor in rice or other articles of food,—or have only certain shells, called cowries, of which it takes from fifty to a hundred to be worth one of our cents.1

In still other parts of Asia, gold and silver have little more circulation as money than in China and India. And yet Asia, I repeat, is the great and final market whither all the gold and silver of Europe and America—except what has been caught up and converted into plate, jewelry, and the like—is now going, and has been going for two thousand years, and whence they never return.

In Europe and America, the great increase of gold from the mines of California and Australia within the last thirty years has added only moderately to the amount of gold in circulation as money. But it has added very largely to the use of gold for plate, watches, jewelry, and the like. This greatly increased consumption of gold for ornamental purposes in England and America, and the increased flow of gold to Asia, to be there devoted to the same uses, account for the fact—which to many persons seems unaccountable—that the great amounts of gold taken from the mines have added so little to the amount in circulation as money.

And even though the amounts of gold and silver taken from the mines should hereafter be still greater—no matter how much greater—than they ever have been heretofore, they would all be disposed of in the same way; namely, first be converted [7] into coin and put into circulation as money, and then taken out of circulation and converted into plate, jewelry, and the like. They would exist in the form of money only while they were performing their short and predestined journey from the mint to the goldsmiths and silversmiths.

These facts—let it be emphatically repeated—prove beyond all color of doubt, or possibility of refutation, that the true and natural market value of gold and silver coins is that value, and only that value, which they have for use or consumption as metals. Consequently it is at that value, and only at that value, that they have the least claim to be considered standards by which to measure the value of any thing else. And any body who pretends to write about the value of money from any other basis than this is either an ignoramus or an impostor,—probably the latter.

II. But that gold and silver coins can have no true or natural market value as money beyond their value for use or consumption as metals will still more clearly appear when we consider why it is that they are in demand at all as money; why it is that they have a market value; and why it is that every man will accept them in exchange for any thing he has to sell.

The solution of these questions is that the original, primal source of all the demand for them as money—the essential and only reason why they have market value, and sell so readily in exchange for other commodities—is simply because they are wanted to be taken out of circulation, and converted into plate, jewelry, and other articles of use.

They are wanted for these purposes by all the people on the globe. Hence they are carried at once from the countries in which they are first obtained—the mining countries—to all the other countries of the world as articles of commerce, and given in exchange for such other commodities as the holders of them prefer for the gratification of their wants and desires.

If they were not wanted to be taken out of circulation and wrought into articles of use, they would have no market value as money, and could not circulate at all as money. No one would have any motive to buy them, and no one would give any thing of value in exchange for them.

The reason of this is that gold and silver, in the state of coin, [8] cannot be used.1 Consequently, in the state of coin, they produce nothing to the owner. A man cannot afford to keep them as an investment, because that would be equivalent to losing the use of his capital. He must, therefore, either exchange them for something he can use—something that will be productive and yield an income; or else he must convert them into plate, jewelry, etc., in which form he can use them and get an income from them.

It is, therefore, only when gold and silver coins have been wrought up into plate, watches, jewelry, etc., that they can be said to be invested; because it is only in that form that they can be used, be productive, or yield an income.

The income which they yield as investments—that is, the income which they yield when used in the form of plate, jewelry, etc.—is yielded mostly in the shape of a luxurious pleasure—the pleasure of gratified fancy, vanity, or pride.

This pleasure is the same as that which is derived from the use of ornaments generally; such as feathers, and ribbons, and laces, and precious stones, and many other things that have no value at all as food, clothing, or shelter, yet bring great prices in the market simply for their uses as ornaments.

The amount of this income we will suppose to be six per cent. per annum on their whole value. That is to say, a person who is able, and has tastes in that direction, will give six dollars a year for the simple pleasure of using one hundred dollars’ worth of plate, jewelry, etc.

This six dollars’ worth of pleasure, then, or six dollars’ worth of gratified fancy, vanity, or pride, is the annual income from an investment of one hundred dollars in gold and silver plate, jewelry, and the like.

This, be it noticed, is the only income that gold and silver are capable of yielding; because plate, jewelry, and the like are the only forms in which they can be used. So long as they remain [9] in coin, they cannot be used, and therefore cannot yield an income.

It is, then, only this six per cent. annual income, this six dollars’ worth of pleasure, which gold and silver yield as ornaments,—that is, as investments,—that is really the cause of all the demand for them in the market, and consequently of their being bought and sold as money.

By this it is not meant that every man who takes a gold or silver coin as money takes it because he himself wants a piece of gold or silver plate or jewelry; nor because he himself intends or wishes to work it into plate or jewelry,—for such is not the case probably with one man in a thousand, or perhaps one man in ten thousand, of those who take the coin. Each man takes it as money simply because he can sell it again. But he can sell it again solely because some other man wants it, or because some other man will want it, in order to convert it into articles for use. He can sell it solely because the goldsmith, the silversmith, the dentist, the gilder, etc., will sometime come along and buy it, take it out of circulation, and work it up into some article for consumption,—that is, for use.

This final consumption or use, then, is the main-spring that sets the coins in circulation, and keeps them in circulation, as money.

It is solely the consumption or use of them, in other forms than coin, that creates any demand for them in the market as money.

It is, then, only the value which gold and silver have as productive investments in articles of use,—in plate, watches, jewelry, and the like,—that creates any demand for them, or enables them to circulate as money.

And since this value which the coins have for use or consumption as metals is the only value that enables them to circulate at all as money, it is plain that it necessarily fixes and limits their true and natural value as money. Consequently any body who gives more for them as money than they are worth for use or consumption as metals gives more for them than they are worth for any purpose whatever,—more, in short, than their true and natural market value.

We all can understand that, if wheat were to circulate as [10] money, it could have no more true or natural market value as money than it had for use or consumption as food; since it would be its value for food alone that would induce anybody to accept it as money. All the wheat that should be in circulation as money would be destined to be taken out of circulation, and consumed as food; and if anybody should give more for it as money than it was worth for food, he, or some subsequent owner, would have to submit to a loss, whenever the wheat should come to be consumed as food.

For these reasons, the wheat as money could be no true or natural equivalent for any commodity that had more true or natural market value for use or consumption than the wheat.

So anybody can understand that, if silk, wool, cotton, and flax were to circulate as money, they could have no more true or natural market value as money than they had for use or consumption for clothing, or other analogous purposes. Their value for these other purposes would alone give them their value as money. Of course, then, their true and natural market value as money would be fixed and limited by their value for these other uses. They could plainly have no greater value as money than they had for clothing and other articles of use. As they would all be destined to be taken out of circulation, and converted into clothing or other articles of use, it is plain that, if anybody should give more for them as money than they were worth for clothing and other articles of use, he, or some subsequent owner, would have to submit to a loss whenever they should come to be converted into clothing, or any other article of use.

The same reasons that would apply to wheat, and silk, and wool, and cotton, and flax, if they were to circulate as money, and that would fix and limit their value as money, apply equally to gold and silver coins, and fix and limit their value as money.

We are brought, therefore, to the same conclusion as before,—namely, that the value which the coins have for use or consumption as metals is their only true and natural value as money. Consequently, this value which they have as metals is the value, and the only value, at which they can be said to be standards by which to measure the value of any thing else.

III. Assuming it now to be established that the true and natural market value of gold and silver coins as money is absolutely [11] fixed and limited by their value for use or consumption as metals, and that their value for use or consumption as metals is the only value at which they can be called standards for measuring the values of other things, we come to another proposition,—namely, that the use or circulation of any possible amount of paper money has no tendency whatever to reduce the coins below their true and natural market value as metals, or, consequently, to diminish their value as standards.

Plainly the paper can have no such power or tendency, because the paper does not come at all in competition with the coins for any of those uses which alone give them their value. We cannot make a watch, a spoon, a necklace, or an ear-ring out of the paper, and, therefore, the paper cannot compete with the coins for those uses. Consequently it cannot diminish their market value for those uses, or—what is the same thing—their value as standards.

If the coins were never used at all as money, they would have the same true and natural market value that they have now. Their use or circulation as money adds nothing to their true and natural market value as metals, and their entire disuse as money would take nothing from their true and natural market value as metals. Consequently it would not diminish their value as standards. In other words, it would not reduce the coins below their true and natural value as standards.

Every dollar’s worth of other vendible property in the world has precisely the same amount of true and natural market value as has a dollar in coin. And if every dollar’s worth of other vendible property was bought and sold as money in competition with the coins, the true and natural market value of the coins would not be lessened thereby. They would still have their true and natural amount of market value,—that is, their value for plate, jewelry, and the like,—the same as though all this other property were not bought and sold in competition with them. The coins and all other property would be bought and sold as money only at their true and natural market values, respectively, for their different uses. One dollar’s worth of any one kind of property would have the same amount of true and natural market value for its appropriate use that a coin, or any other dollar’s worth of property, would have for its appropriate use. But none of them would have any additional value on account of their being bought and sold as money.

[12]

Now, all the other vendible property of the world cannot be actually cut up into pieces or parcels, each capable of being carried about in the pocket, and each having the same amount of true and natural market value as a dollar in coin. But it is not only theoretically possible, but actually practicable, that nearly or quite all this other vendible property should be represented by contracts on paper,—such as certificates, notes, checks, drafts, and bills of exchange,—and that these contracts shall not only have the same value with the coins in the market as money, but that, as money, they generally shall be preferred to the coins.

These contracts are preferred to the coins as money not only because they are more convenient, but also because we can have so many times more of them.1

Every solvent piece of paper that can circulate as money—whether it be a certificate, note, check, draft, bill of exchange, or whatever else—represents property existing somewhere that is legally holden for the redemption or payment of the paper, and that can either be itself delivered in redemption of it, or be otherwise made available for its payment. And if every dollar’s worth of such property in the world could be represented in the market by a contract on paper promising to deliver it on demand, and if every dollar’s worth could be delivered on demand in redemption of the paper that represented it, the world then could have an amount of money equal to its entire vendible property. And yet clearly every dollar of paper would be equal in value to a dollar of gold or silver. Clearly, also, all this paper would do nothing towards reducing gold and silver coins below their true and natural market values,—that is, their values for use or consumption as metals.

The gold and silver coins would be good standards—as good perhaps as any that can be had—by which to measure the values of all this other property. But a gold dollar, or a silver dollar, would have no more true or natural market value than would each and every other dollar’s worth of property that was measured by it.2

[13]

Under such a system of currency as this, there could evidently be no inflation of prices, relatively to the true and natural market values of gold and silver. Such a currency would no more inflate the prices of one thing than of another. It would just as much inflate the prices of gold and silver themselves as of any thing else. Gold and silver would stand at their true and natural market values as metals; and all other things would also stand at their true and natural values for their respective uses.

No more of this currency could be kept in circulation than would be necessary or convenient for the purchase and sale of commodities at their true and natural market values, relatively to gold and silver; for if at any time the paper was not worth as much, or would not buy as much, in the market as gold or silver, it would be returned to the issuers for redemption in gold and silver, and thus be taken out of circulation.1

Thus we are brought again to the conclusion that it is only when gold and silver coins are suffered to stand at their true and natural values as metals—which are also their true and natural values as standards—that they can be said to measure truly the values of other things.

At their values as metals the coins serve as standards by which to measure the value of all other money, as well as of all other property. But at any other than their true and natural values as metals they will naturally and truly measure the value of nothing whatever,—neither of other money, nor of any thing else.

IV. We come now to still another proposition,—namely, that [14] no possible amount of paper money that can be put in circulation in any one country that is open to free commerce with the rest of the world can affect the true or natural market value of gold or silver coins in that country.

If the coins should be entirely excluded from circulation by the paper, they still would have the same true and natural market value as if they were the only money in circulation; for, in both cases alike, their true and natural market value in that country would be determined by their value in the markets of the world.

The coins can be carried from any one part of the world to any other part at so small an expense that they can have no appreciably greater market value in any one part than in any other. And their true and natural market value in all parts of the world depends upon the general consumption of them as metals, and not at all upon their circulation as money. They are everywhere simply merchandise in the market of the world, waiting for consumption, like any other merchandise.

This fact—that the disuse of the coins as money in any one country cannot reduce their value in that country below their value in the markets of the world—was fully tested in the United States for fourteen or fifteen years,—that is, from 1861, or 1862, to 1876. During the whole of that time gold and silver were wholly absent from general circulation as money. Yet they had the same value here as metals that they had in other parts of the world either as money or as metals. And they were as much used during that time for plate, watches, jewelry, and the like as they ever were.

The people of the United States comprise not more than a twenty-fifth—perhaps not more than a thirtieth—part of the population of the globe. And if they were to abandon the use of gold and silver entirely, not only for money, but for plate, watches, jewelry, and every other purpose whatever; if they were even to banish the metals themselves from the country,—they thereby would reduce their value in the markets of the world by not more than a twenty-fifth, or perhaps a thirtieth, of their present value. How absurd, then, to pretend that the simple disuse of them as money by one twenty-fifth, or one-thirtieth, part of the population of the globe can have any appreciable effect upon their market value the world over!

[15]

These facts prove that all restrictions imposed by law in any one country upon all other money than gold and silver coins, under pretence of maintaining the true standard of value in that country, are the merest farces, not to say the merest frauds; that they have no tendency of that kind whatever; that they only serve to derange the standard in that country by establishing a monopoly of money, and giving a monopoly and extortionate price to the coins in that country, instead of suffering them to stand at their true and natural value, both as metals and as standards, and also at the same value that they have in the markets of the world.

Furthermore, if any or all other nations have been wicked and tyrannical enough to give, or attempt to give, a monopoly and extortionate price to gold and silver coins by restrictions upon any or all other money, that is no reason why we should be guilty of the same crime. So far as such restrictions may have affected the price of the coins in the markets of the world, we may not be able to save either ourselves or the rest of mankind from the natural consequences of such a monopoly. But we are under no more obligation to follow the bad example of these nations in this matter than in any other. Because other nations enslave and impoverish their people by depriving them of all money and all credit by establishing a monopoly of money, that is no reason why we should do so. All our efforts in this direction do nothing towards making the coins better standards of value than they otherwise would be.

V. It is an utter absurdity to talk about gold and silver coins having any more true or natural value as money than they have for use or consumption as metals. To say that they have more true or natural market value as money than they have for use as metals is equivalent to saying that they have more true and natural value for being bought and sold than they have as commodities for use or consumption. And to say that they have more true or natural market value for being bought and sold than they have as commodities for use or consumption is just as absurd as it would be to say that houses, and lands, and cattle, and horses, and food, and clothing, have more true and natural market value for being bought and sold than they have as commodities for use

[16]

VI. Finally, the true and natural market value of any and every vendible thing whatever is that value, and only that value, which it will maintain in the market in competition with any and all other vendible things that can be brought into the market in competition with it. This is the only rule by which the true and natural market value of any vendible thing whatever can be ascertained; and this rule applies as much to gold and silver coins as to any other commodities whatever.

Tried by this rule, we know that the coins will bear no higher value in the market as money than they will for use or consumption as metals; because mankind have other money which they prefer to the coins, and which—if permitted to do so—they will always buy and sell as money rather than give more for the coins as money than they are worth for use or consumption as metals.

VII. To give color to the idea that solvent notes, promising to pay money on demand, tend to reduce the standard of value below that of the coins, the advocates of that idea are accustomed to say that such notes cost nothing, and have no value in themselves; and, consequently, that to suffer them to be bought and sold as money in the place of coin, and as if they were of equal value with coin, necessarily depreciates the market value of the coin at least for the time being; that, in other words, it reduces the standard of value for the time being.

The answer to this pretence is that nobody claims or supposes that a promissory note, simply as so much paper, has any value. But the contract written upon the paper—if the note be a solvent one—is in the nature of a lien upon so much material property of the maker of the note as is sufficient to pay the note, and as can be taken by legal process and sold for payment of the note.

Every solvent promissory note—whether it circulates as money, or not—is in the nature of a lien upon the property of the maker,—that is, upon the property that is legally holden for the payment of the note, and that can be taken by legal process, and applied to the payment of the note.

The value of the note, therefore, is not in the mere paper as paper, but in the property on which the contract written upon paper gives the holder a lien for the amount of the note.

[17]

In this respect, a banker’s note, circulating as money, is just like any other man’s note that is locked up in the desk or safe of the holder. The fact that it is bought and sold from hand to hand as money—that is, in exchange for other property—makes no change whatever in the character or value of the note.

In the case of a mortgage upon land, the value is not in the mere paper, as paper, upon which the mortgage is written, but in the land on which the mortgage gives the mortgagee a lien for the amount of his debt. So in the case of a note, if it be a solvent one, it is in the nature of a lien upon, or conditional title to, the property of the maker of the note,—property that is legally holden for the payment of the note, and that can be taken by legal process, and applied to the payment of the note.

To say that such a note has no value in itself is just as absurd as it would be to say that a mortgage on land has no value in itself. Everybody knows that neither the mortgage nor the note has any value as mere paper; that the value is in the land, or the property, that is holden, or liable to be taken, for the payment of the mortgage or note.

In every case where material property is represented by paper,—as in the case of a deed, mortgage, certificate of stock, certificate of deposit, check, note, draft, or whatever else,—the value is in the property represented, and not in the paper that represents it. The paper has no value, except as it contains the evidence of the right to the property represented by it. And this is as true in the case of what is called paper money as in all other cases where property is represented by paper. The value of the money is not in the paper as paper, but in the property represented by the paper, and to which, or on which, the contract written on the paper gives a title, claim, or lien. The property that is represented by the paper, and which constitutes the real money, is just as real substantial property as is gold, or silver, or any other money or property whatever. And it is really an incorrect and false use of the term to call such money paper money, as if the paper itself were the real money; or as if there were no money, and no value, outside of the paper. A dollar’s worth of land, wheat, iron, wool, or leather, is just as much a dollar in real value as is a dollar of gold or silver; and when represented by paper, it is just as real money, so far as value is concerned, as is gold and silver.

[18]

Every solvent promissory note is a mere representative of, or lien upon, or conditional title to, material property in the hands of the maker; property that has an equal value with coin; that is legally holden for the payment of coin; and that can be taken by legal process, and sold for coin, which must be applied to the payment of the note. When, therefore, a man sells a solvent promissory note, he sells a legal title to, or claim to, or lien upon, so much actual property in the hands of the maker of the note as is necessary to pay the note; property which men have just as much right to buy and sell from hand to hand as money, if they so please,—that is, in exchange for other property,—as they have to buy and sell coin, or any other money that can be invented.

And it matters not how many of these notes are in circulation as money, provided they are all solvent; since, in that case, each note represents a separate piece of property from all the others; each separate piece of property being equal in value to coin, and capable of insuring the payment of coin. If, therefore, all the material wealth of a country were thus represented by paper, the paper,—that is, the property represented by the paper—would all have the same value as the same nominal amount of coin; and the circulation of all this paper as money would do nothing towards reducing the coins below their true and natural value as metals, or below their value in the markets of the world. Consequently, it would do nothing towards depreciating the true and natural standard of value. All this other money would have the same value, dollar for dollar, as the coin; and the true and natural value of the coins as standards of value would not be changed.

There certainly can be no question that a solvent promissory note that circulates from hand to hand as money—which everybody is willing to accept in payment for other property—is just as legitimate a piece of paper, and has just as much value as a lien, or as evidence of a lien, upon the property that is holden for its payment, as any other promissory note whatever. If such a note be not legitimate, if it have no value, then no promissory note whatever is legitimate, or has value. And if the issue of such notes for circulation as money—that is, among those who voluntarily give and receive them in exchange for other property—be illegitimate, and ought to be suppressed, then all promissory [19] notes whatsoever are equally illegitimate, and ought to be suppressed. But if any one such note, which any one man, or company of men, can make, be legitimate, then any and every other similar note, which any other man, or company of men, can make, is equally legitimate.

VIII. But to hide the deception that is attempted to be practised under pretence of maintaining the standard of value, it is said that there is but a small amount of coin in comparison with the notes that can be put in circulation as money; and that it is therefore impossible that any great number of notes, promising to pay coin on demand, can be solvent; that the property that is nominally holden to pay the notes cannot be made to bring any more coin than there really is; and that, therefore, the notes, if more numerous than the coins, must be spurious; that they promise to pay something which the makers do not possess, and which they consequently are unable to pay, no matter how much other property they may have.

One answer to this argument is that, on this principle, no promissory note whatever—whether issued for circulation or not—could ever be considered solvent, unless the maker kept constantly on hand an equivalent amount of coin with which to redeem it. Whereas we know that all notes are considered solvent, provided the makers have sufficient property to bring the coin when it is likely to be called for. And this is the principle on which all ordinary commercial credit rests.

Another answer to this argument is that, however valid it may be against notes that are either not solvent, or not known to be solvent,—that is, not issued on the credit of property sufficient to pay the notes,—it has no weight against notes that are solvent, and that are known to be solvent; because, first, if the notes are solvent, and are known to be solvent, the holders usually prefer them to coin, and therefore seldom present them for redemption in coin; and because, secondly, the notes issued for circulation are issued by discounting other solvent notes that are to be held by the bankers, and the circulating notes are, therefore, all wanted for paying the notes discounted, and, with rare exceptions, will all come back to the bankers in payment of the notes discounted; and it is, therefore, only rarely that any other redemption of the circulating notes is called for.

[20]

The bankers soon learn by experience how often coin will be called for, and how much, therefore, it is necessary for them to keep on hand for such contingencies. This amount a due regard for their own interests will induce them to keep on hand, because they cannot afford to be sued on their notes, or to have their credit injured by not meeting their notes when coin is demanded.1

The opposers of a solvent paper currency either ignorantly overlook, or craftily and dishonestly attempt to keep out of sight, the vital fact that, in all safe, legitimate, solvent, and prudent banking, all the notes issued for circulation will be wanted to pay the notes discounted, and will come back to the banks in payment of notes discounted; and that it is only rarely that any other redemption—redemption in coin—will be demanded or desired.

The pretence, therefore, that no more notes can be honestly issued for circulation than there is coin kept constantly on hand for their redemption is nothing but a pretence, since, however great the amount of notes issued,—provided they be solvent ones,—it is only a mere fraction of them—probably not so much even as one per cent.—that will ever have any call to be redeemed in coin.

IX. But it is often said that the panics which have usually occurred after any considerable increase of money by the issue of paper are proof that the paper was not equal in value, dollar for dollar, with coin. Those who say this claim that the panics are caused by the attempts of the holders of the notes to convert them into coin. These attempts have taken the form of runs upon the banks for the redemption of their notes in coin. And it is claimed that these runs upon the banks for coin are proof that the notes are not equal in value, dollar for dollar, with coin. And this proof, say they, is made complete by the fact that the banks, when thus run upon for coin, cannot redeem their notes in coin.

But these runs upon banks for coin by no means prove that [21] solvent notes are not equal in value, dollar for dollar, with coin. They prove only that the holders of the notes have doubted the solvency of the banks. These runs have never occurred in countries where the banks were known to be solvent. They have occurred only in countries where the solvency of the banks was doubted, as in England and the United States. Thus, in Scotland there is no history (so far as I know or believe) of a single run upon the banks in a period of eighty years,—that is, from 1765 to 1845. There may have been runs in a few instances upon some particular bank, but none upon the banks generally. And why? Not at all because these banks kept on hand large amounts of coin,—for they really kept very little,—but solely because the public had a perfect assurance of the solvency of the banks; an assurance resulting from the facts that each of the banking companies had a very large number of stockholders, and that the private property (including the real estate) of all these stockholders was holden for the debts of the banks. The public, therefore, knew, or felt perfectly assured, not only that the notes of the banks were all solvent, but also that they would all speedily go back to the banks, and be redeemed by being accepted in payment of notes discounted. Under these circumstances, the public not only made no runs upon the banks for coin, but even preferred the notes to the coin.

In England, on the contrary, the runs upon the banks during the same period of eighty years were very frequent. And why? Because nobody had any abiding confidence in the solvency of the banks. The Government, for the sake of giving a valuable monopoly to the Bank of England, had virtually enacted that there should be no other solvent banks in England; or at least none that could be publicly known to be solvent. This enactment was that, with the exception of the Bank of England, no bank in England should consist of more than six partners. Rich men—those who had credit and wished to use it—could generally do better with it than to put it into a company where there were only six partners, and where the credit of the partnership could not be sufficiently known to be of much value, or to protect them against runs for coin. The result was that, with the exception of the Bank of England, all, or very nearly all, the banking business in England was in the hands of men who were not only [22] unworthy of credit, but really had no credit, except so long as they were ready to redeem their notes either in coin or Bank of England notes.1

In many or most of the United States, up to 1860, the solvency of the banks was rendered doubtful, or worse than doubtful, by legislation that authorized the banks to issue notes to two, three, or four times the amount of their capital; that authorized the stockholders themselves to borrow these notes of the banks, and then exempted the private property of the stockholders from all liability for the debts of the banks. Of course it often happened that no reliance could be placed on the solvency of such banks, and that runs, which they could not meet, would be made upon them for coin.

But clearly the runs upon such banks as these did nothing towards proving that the notes of banks, known to be solvent, were not equal in value, dollar for dollar, with coin.

But the panic of 1873, in the United States, did not proceed at all from any doubt as to the solvency of the banks, but wholly from the insufficiency in the amount of money. The destruction of the State banks by a ten per cent. tax on their issues; the limitation upon the issues of the national banks to the sum of three hundred and fifty-six million dollars; and the limitation upon the greenbacks to three hundred million dollars,—reduced the currency to six hundred and fifty-six million dollars. And these six hundred and fifty-six million dollars, being, for want of redemption, some fifteen per cent. below par of specie, reduced the actual amount of money to about five hundred and fifty-eight millions. The population of the country in 1873 was at least forty millions, and the property probably forty thousand millions. This lack of money, compared with population and property, compelled traffic of all kinds to be done on credit, instead of for cash. Every thing was bought on credit, and sold on credit. And the same commodity, in going from producer to consumer, was generally sold two, [23] three, four, or more times over on credit. The consequence was that this private indebtedness among the people had become so enormous, in proportion to the money with which to cancel it, as to place the credit of the whole community at the mercy of a few holders of money, who had no motive but to extort the utmost possible from the necessities of the community. The result was the general collapse of substantially all credit.

Had there been freedom in banking, nothing of this kind would have occurred. The bankers would have been so numerous as to be able to furnish all the money that could have been kept in circulation. They would probably have supplied three, four, or five times the amount we actually had. Traffic between man and man would have been almost wholly done for cash, instead of on credit; and nothing in the form of a panic would have been known.

The panic of 1873, therefore, does nothing towards proving that solvent notes, issued for circulation as money,—no matter how great their amount,—are not equal in value, dollar for dollar, with coin.

X. But the argument that is offered perhaps with the most assurance as proof that any increase of money by means of paper reduces for the time being the gold or silver dollar below its true and natural market value is derived from the rise that takes place in the prices of commodities, relatively to gold and silver, whenever the currency is increased by the addition of paper.

This argument, if it be an honest one, implies an ignorance of two things; namely, first, an ignorance of the fact that the paper is employed as capital to diversify industry and increase production; and, secondly, an ignorance of the effect which a diversity of industry and increase of production have upon the prices of commodities, relatively to any fixed standard of value. This effect has been illustrated in a previous number of this Review, and need not be repeated here.1

The diversity of industry and increase of production that follow an increase of currency by paper, and the effect which that diversity and production have upon the prices of commodities, [24] utterly destroy the argument that the rise in prices results from any depreciation in the value of coin below its true and natural value as a metal.

A second answer to the argument drawn from the rise in prices under an abundant paper currency is to be found in the theory of the very men who oppose such a currency. Their theory is that, by the prohibition of the paper, the coins can be made to have a “purchasing power as money” indefinitely greater than their true and natural market value as metals. They hold that the coins already have “a purchasing power” as money far greater than their true and natural value as metals.

Now, inasmuch as every dollar of solvent paper currency represents—by giving a lien upon—so much real property as is equal to the coin in true and natural market value, it necessarily follows, on their own theory, that the paper has no other effect than to bring the coins down, from their unnatural, fictitious, and monopoly price, or “purchasing power,” to their true and natural value as metals; or, what is the same thing, to bring all other property up to its true and natural market value, relatively to the coins as metals.

XI. It will now be taken for granted that the following propositions have been established; namely,—

1. That the only true and natural market value of gold and silver coins is that value, and only that value, which they have for use or consumption as metals; that this is the value at which they now stand in the markets of the world; that it is the only value that has any stability; and that it is the only value at which they can be said to be standards for measuring the value of any other property whatever.

2. That inasmuch as paper money does not compete at all with gold and silver coins for any of those uses that give them their value, the true and natural market value of the coins cannot be reduced below their value as metals, or their value in the markets of the world, by any possible amount of paper money that can be kept in circulation; and that, consequently, the paper money, however great its amount, can do nothing towards reducing the coins as standards of value below their true and natural value as standards,—that is, their value as metals.

[25]

3. That the coins, standing at their true and natural value as metals, are as much standards by which to measure the value of all other money as of all other property; and, consequently, that all other money that has the same value in the market, dollar for dollar, with the coins, only increases the amount of money, without lowering the standard of value; and that, if all the other vendible property in the world were cut up into pieces or parcels, each of the same value with a dollar (or any given number of dollars) of coin, and each piece or parcel were represented by a promissory note, and all these notes were to be bought and sold as money in competition with the coins, the coins would not be thereby reduced below their true and natural market value as metals, nor, consequently, below their true and natural market value as standards.

4. That to say that the true and natural market value of the coins as standards of value is diminished by increasing the number of dollars, so long as the additional dollars are of the same value, dollar for dollar, with the standards, is equivalent to saying that the coins have no fixed—nor any thing like a fixed—value of their own; and that they are, consequently, unfit for, and incapable of being, standards of value; that to say that increasing the number of dollars, all of one and the same value, is diminishing the value of the dollar is just as absurd as it would be to say that increasing the number of yardsticks, all of one and the same length, diminishes the length of the yardstick; or as it would be to say that increasing the number of pound-weights, all of one and the same weight, diminishes the weight of the pound-weight.

XII. The four propositions in the last preceding section are so manifestly true that no one, I apprehend, will even attempt to controvert them otherwise than by asserting that the present market value of the coins does not rest wholly upon their value as metals, but, in part, upon these further facts,—namely, that the coins are money, and, secondly, that they are made a privileged money by the prohibitions or limitations imposed by law upon all other money.

If it should be said—as it constantly is said—that the fact of the coins being made money, and the further fact of prohibitions [26] or limitations being imposed upon all other money, have given the coins “a purchasing power” far above their true and natural value as metals, the answer is that such a “purchasing power” is an unjust and extortionate power—a mere power of robbery—arbitrarily granted to the holders of the coins, from no motive whatever but to enable them to get more for their coins than they are really worth; or, what is the same thing, to enable them to coerce all other persons into selling their property to the holders of the coins for less than it is worth. And this is really the only motive that was ever urged against the free purchase and sale of all other money in competition with the coins.

The frauds and extortions that are attempted to be practised by making the coins a privileged money, under cover of the pretence of maintaining the standard of value, may be illustrated in this way; namely,—

In some parts of Europe, there is said to be quite a trade in humming birds. While living, they are wanted, I suppose, as pets, the same as parrots, canaries, and some other birds. When dead, after passing through the hands of the taxidermists, they are wanted as ornaments.

Let us suppose there were such a trade in this country. And let us suppose the whole number of humming birds, already caught, in the country, to be ten thousand. And let us suppose their market value as pets and for ornaments to be ten dollars each. The market value of the whole ten thousand humming birds, then, would be one hundred thousand dollars.

And suppose these ten thousand humming birds to be owned by one hundred men, each man owning one hundred birds,—that is, one thousand dollars’ worth.

But suppose further that, in consideration of humming birds being rare, beautiful, containing much value in small space, and incapable of being rapidly increased, the government should adopt and legalize them as money, as standards of value.

And suppose that, under pretence of maintaining this standard of value unimpaired, the government should prohibit all other money, and should also prohibit all substitutes and all contracts—such as notes, checks, drafts, bills of exchange, and the like—by which the necessity for buying and selling the humming birds themselves—the legalized money—should be avoided.

[27]

Suppose, in short, that, under pretence of maintaining this standard of value, the government should establish, in the hands of these hundred owners of the humming birds, an absolute monopoly of money, and of every thing that could serve the purposes of money.

What, now, would be the market price of the humming birds? And what would become of the standard of value? Why, we know that the one hundred owners of these ten thousand humming birds, having thus secured to themselves an absolute monopoly of all the money in the country, would demand for their birds as money, a hundred, a thousand, or a million times more than their true and natural value,—that is, more than they were worth simply as humming birds. By the monopoly of money, they would be put in possession of a substantially absolute power over all the property and labor of our forty-five millions of people. There would be but one holder of money for every four hundred and fifty thousand people. These four hundred and fifty thousand people could sell neither their labor nor their property to anybody except this single owner of humming birds. And they could sell to him only at such prices as he should choose to give. And he, knowing his power over their necessities, would not part with one of his birds, unless he should get in exchange for it a hundred, a thousand, or a million times more than it was really and truly worth. In this way this pretended standard of value would be made to measure—that is, to procure for its possessor—a hundred, a thousand, or a million times more than its own true and natural value.

Of course, everybody in the country, except these hundred men, would be robbed of all their property at once, unless there should chance to be some few so situated that they could contrive to live within themselves without selling either their property or their labor. And these hundred men would soon make themselves masters and owners of substantially all the property in the country. All the other people of the country would be at their mercy, and would be permitted to live, or suffered to die, as the pleasure of the one hundred men should dictate.

Such would be the effect of establishing a monopoly of money under pretence of establishing a standard of value.

But suppose, now, on the other hand, that all men were allowed [28] to exercise their natural right of buying and selling as money any thing and every thing which they should choose to buy and sell as money. What would be the result? Why, we know from experience that, instead of buying and selling the humming birds themselves, they would rarely buy one of them. On the contrary, they would buy and sell notes, checks, drafts, and the like, representing perhaps a large portion of the property of the country. These notes, checks, and drafts would be nominally and legally made payable in humming birds, and would be in the nature of liens upon the property of the makers. And any holder of one of them could, if he chose, not only demand humming birds in payment, but, if that were refused, could sue for, and recover judgment for, so many actual humming birds as the note promised. And the property of the maker of the note would be taken by legal process, and sold for humming birds, and nothing else; and these birds would then be paid over to the holder of the note.

But we know, at the same time, that the humming birds, when thus actually paid over to the holder of the note, would be worth no more in the market than the note was before he sued on it; that they would buy no more of any thing he wanted to buy than would the note; that nearly or quite everybody who had any thing to sell would rather have the note than the birds; and that, unless he wanted to keep the birds as pets or for ornaments, he would have made a bad bargain for himself; that even if he wanted the birds to keep, he could have bought them in the market with the note at the same price and with much less trouble to himself than it cost him to obtain them by his suit; and finally, that he had made a fool and a curmudgeon of himself by bringing a suit, and taking trouble upon himself, and giving trouble to the maker of the note, in order to get something that he did not want, and which it would be a trouble and loss to him to keep, and a trouble to get rid of; for all which he would get no profit or compensation whatever.

As sensible men would not be likely to go through such unprofitable operations as this, the result would be that men generally, instead of buying and selling the humming birds themselves as money, would seldom or never buy them, except when they had a special use for them as humming birds; but, in place [29] of them, would buy and sell such notes, checks, drafts, and the like as had an equal value in the market with the birds, and were more convenient to keep, handle, and transport than the birds. The birds themselves would continue to stand, in the market, at their true and natural value as humming birds, and, as such, would be very good standards of value by which to measure the value of all other money, as well as of all other property; and all traffic between man and man would be the exchange of one kind of property for another, each at its full, true, and natural value, with no extortion or coercion on either side.

This supposed case of the humming birds gives a fair illustration of the sense, motives, and honesty of all that class of men who are continually crying out for prohibitions or limitations upon all money except gold and silver coins, or some other privileged money, under pretence of maintaining the standard of value. They all have but one and the same motive,—namely, the monopoly of money, and the power which that monopoly gives them to rob everybody else.

Lysander Spooner.

Endnotes

1

Old coins—those that are no more than twenty, thirty, or fifty years old—are so rare that they sell for high prices as curiosities.

2

That is, from Europe for two thousand years, and from America from its first discovery by Europeans.

1

I believe the English have recently attempted to introduce a small copper coin, called an anna: but what is its precise value, or what the number in circulation, I do not know.

1

The sale of them as money is not a use of them any more than the sale of a horse is a use of the horse. For convenience in speech, we call the buying and selling of money a use of it, but it is no more a use of it than the buying and selling of any other merchandise is a use of such merchandise. When a man says he wants money to use, he means only that he wants to part with it,—that he wants either to pay a debt with it, or to give it in exchange for something that he can use or consume.

1

We can have at least a hundred and fifty times as many paper dollars as we can gold and silver dollars. And yet every one of these paper dollars, if it represents a dollar’s worth of actual property that can either be itself delivered in redemption of the paper, or can otherwise be made available for the redemption of the paper, will have the same value in the market as the coins.

2

To say that a gold dollar, or a silver dollar, has any more true or natural market value than any other dollar’s worth of vendible property is just as absurd as it would be to say that a yardstick has more length than a yard of cloth or a yard of any thing else; or as it would be to say that a pound weight has more weight than a pound of sugar or a pound of stone.

1

The bankers have no motive to issue more of their notes than are needed for circulation at coin prices; because their only motive for issuing their notes at all is to get interest on them while they are in circulation. If they issue no more than are needed for circulation at coin prices, the notes, as a general rule, will remain in circulation until they come back to the bankers in payment of notes discounted; and the bankers will have no occasion to redeem them otherwise than by receiving them in payment of notes discounted. But if the bankers issue more notes than are needed for circulation at coin prices, the surplus notes will come back for redemption in coin before they have earned any interest. Thus the bankers will not only fail of getting any profit from their issues, but will subject themselves to the necessity and inconvenience of redeeming their notes with coin. They, therefore, have no chance of profit, but necessarily subject themselves to inconvenience, and perhaps loss, if they issue more notes than are wanted for circulation at coin prices.

1

The principle named in the text of course applies only to solvent banks. It has nothing to do with insolvent ones, whose business is to swindle the public. As a general rule, only those banks can be relied on as solvent where the private property of the stockholders is holden for the notes of the company. Not that there may not be other solvent ones,—for undoubtedly there may be,—but experience thus far has been largely against all others.

1

One cause that made the English banking companies—companies consisting of not more than six partners—unworthy of credit was that, although the private property of the partners was holden for the partnership debts, yet the condition of land titles in England was such as to make land practically unavailable as a basis of credit. The credit of the bankers, therefore, rested only on their personal property. That is, the credit of each banking company rested, at best, only on the personal property of not more than six persons.

1

See “The Law of Prices” in the “Radical Review” for August, 1877.

T.31 Universal Wealth shown to be Easily Attainable. Part First (1879).↩

Title

[31.] Universal Wealth shown to be Easily Attainable. Part First (Boston: A. Williams & Co., 1879).

- also online Shorter Works, vol. 2: </titles/2292#lf1531-02_head_044>

Text

UNIVERSAL WEALTH.

UNIVERSAL WEALTH

SHOWN TO BE EASILY ATTAINABLE.

PART FIRST.

By LYSANDER SPOONER.

BOSTON:

A. WILLIAMS & COMPANY,

283 Washington Street.

1879.

[2]

Entered according to Act of Congress, in the year 1879,

By LYSANDER SPOONER,

in the Office of the Librarian of Congress, at Washington.

[3]

SECTION I.

The wealth of the world is proportionate to the number of different things mankind possess, rather than to the quantity of any one thing. Thus, if every human being had as much wheat as he could eat, and had no other wealth, all would still be poor. But if, in addition to all the wheat they desire, every human being has a thousand, ten thousand, or a hundred thousand other things—each, on an average, of equal value with the wheat—the wealth of each individual, and of the world, is multiplied a thousand, ten thousand, or a hundred thousand fold.

Individuals usually desire, for their own use or consumption, but a very limited amount of any one thing; but we as yet know no limit to the number of different things they desire. And we shall never know any such limit, until the ingenuity of the human race, in the invention of new commodities, shall have been exhausted.

The great problem of universal wealth, therefore, is comprised in these two, viz.: First, how shall we give to every person the greatest possible variety of commodities? and, secondly, how shall we give to each individual as much as he desires of each and all these various commodities?

Men are able to produce almost no wealth at all by their hands alone. Until they make discoveries in science, and inventions in implements and machinery, they remain savages, few in number, and living upon such wild fruits as they can gather, and such wild [4] animals as they can kill. But they have proved themselves capable of such discoveries in science, and such inventions in implements and machinery, as will, each of them, enable a man to produce a hundred, a thousand, some of them a million, or even a hundred or a thousand million times as much wealth as he could before create with his hands alone. What labor could Watt perform with his hands, compared with that performed by his steam engine? What labor could Arkwright perform with his hands alone, compared with that performed by his spinning machine? What labor could Stephenson perform, in the transportation of freight and passengers, compared with that performed by his locomotive? What could Morse do, on foot, in the transmission of intelligence, compared with what can be done with his telegraph? What could the Assyrian do, with his tablets of baked clay, in supplying the world with reading matter, compared with what can be done with a Hoe printing press? What could men do, with their hands alone, in tunnelling mountains, building suspension bridges, and laying deep sea cables, compared with what can be done by the machinery they have invented for those purposes?

These things should teach us that it is brains, and not hands, that must be relied on for the creation of wealth. And it would be well for us to realize, much more fully than we ever have done, that brain labor, no less than hand labor, must be paid for, if we would have the benefit of it.

The discoveries in science, the invention of implements and machinery, and the invention of new commodities for consumption, have already multiplied the wealth of some portions of the world by millions and thousands of millions of what it once was. And yet it is but recently that inventions have begun to add much to the wealth of the world. For thousands, and tens, perhaps hundreds of thousands of years, mankind remained savages, or at best barbarians, for the want of such inventions as are now just beginning to be made.

At the present time, the people of the United States are acknowledged to take the lead of the whole world, especially in mechanical inventions. And yet substantially all our inventions [5] have been made within a hundred years; most of them within fifty years. We are now making from ten to fifteen thousand new inventions per annum. Some of these are of great, in fact of immeasurable, value. Many of them, although of less value, are nevertheless valuable. And yet we are probably not producing a tenth, perhaps not a hundredth, part so many inventions, in proportion to population, as we ought to do, and should do, if inventors were protected, as they ought to be, in a perpetual right to their inventions, and they and the public had the capital—that is, the money—necessary for producing inventions, and putting them into operation.

The people of the United States constitute not more than a twenty-fifth part of the population of the globe. In not more than a fourth, fifth, perhaps even a tenth, part of the world are any considerable number of inventions now being made. Not because the peoples of those other portions are naturally incapable of invention; but because they have no protection for their property in their inventions, and no money, no capital, no opportunity to make inventions, or bring them into operation. Their poverty, ignorance, and servitude suppress all their efforts in this direction.

What will be the number and value of the inventions made, and what the variety and amount of wealth produced by means of them, when, if ever, all mankind shall be protected in their property in their inventions, and shall have all the money necessary to bring their inventions into successful operation, no one now can form any idea.

SECTION II.

Money is the great instrumentality—the indispensable capital—by means of which inventions are produced, machinery operated, and their products distributed to consumers.

The inventor must have money, with which to make his experiments, subsist while making them, perfect his inventions, demonstrate their utility, and bring them into practical operation. And to do all these often requires years of time, and large expenditures of money.

[6]

The operator of machinery must have money, with which to buy his machinery, his raw materials, and his means of subsistence while he is manufacturing his goods for the market. Then he must be able to sell his goods for money, in order to buy new materials, and subsist himself while manufacturing new goods.

The merchant must have money, with which to buy his goods; and he must be able to sell his goods for money, in order that he may buy new goods.

And, finally, the consumers of all these goods must have money, to buy and pay for all the goods that are to be manufactured.

Thus every man, who either makes inventions, operates machinery, or distributes or consumes the commodities produced, is constantly dependent upon money, for his means of production, distribution, and consumption.

And the amount of money that each one must have depends upon the market value of the commodities he has to buy, whether he buys them for production, distribution, or consumption; since the money, in each individual case, must, in order to make the contract an equitable one, be a bona fide equivalent of the commodity bought and sold.*

What, then, will be the amount of money requisite to bring out fully the inventive faculties of all mankind; set in motion all the machinery invented; distribute all the products; and thus give to mankind, for final consumption, the full benefits of all the inventions that can be made?

To answer this vital question, it is necessary to consider that the market value of all commodities, relatively to any fixed [7] standard of value—or to such a standard as a gold dollar, for the want of a better, is assumed to be—will depend wholly upon the variety and amount of commodities produced, distributed, and consumed. In other words, the market value of each man’s particular product will depend wholly upon the variety and amount of commodities which other men produce, and are willing to give in exchange for it.

To illustrate this principle, let us suppose that Mr. A is a hatter; and that he has acquired such science, skill, machinery, and money capital, that he is able, by himself alone, to manufacture ten thousand hats per annum. He manufactures these hats for sale, and not for his own consumption. Their value to himself, therefore, depends wholly upon the number and amount of other commodities which he desires, and which other persons can, and will, give him in exchange for hats. If there be no one who desires a hat, or who—though desiring one—has anything desirable that he can give in exchange for it, A’s ten thousand hats are of no value to him; simply because he can get nothing desirable in exchange for them. But if there are ten thousand other men who desire hats, and who are producing each a different commodity from all the others—a commodity as much desired by A as one of his hats is desired by each of the others—then A will be able to sell one of his hats to each of these ten thousand men, and get in exchange for it, a commodity as desirable to himself as the hat is to each of these ten thousand men. He will thus get the full and true value of his ten thousand hats, where, but for the power of these other men to produce something desirable to give in exchange, he would have got nothing at all for them; and would have utterly lost the labor of producing them.

Thus it will be seen that the market value of each man’s own product depends entirely upon the number and amount of desirable things which other men produce, and are willing to give him in exchange for his particular product.

Every man, therefore, who has the science, skill, machinery, and money capital that are necessary to enable him to produce, say, ten thousand hats per annum, has the highest interest that ten [8] thousand other men, who desire hats, shall have all the science, skill, machinery, and money capital that shall enable them to produce ten thousand other commodities that shall be as desirable to him as one of his hats is to each of these ten thousand men.

Suppose the publisher of the New York Herald has such science, skill, machinery, and money capital, that he is able to produce a hundred thousand copies of the Herald daily. And suppose there are a hundred thousand other men, and only a hundred thousand, who desire the Herald. The value of the Herald to its producer will depend, in this case, wholly upon the number and amount of other desirable things which these hundred thousand other men can, and will, give in exchange for the Herald. If they are so destitute of science, skill, machinery, and capital that they can produce nothing desirable that they can give in exchange for it, the Herald will have no value to its producer; and his labor in producing it will be thrown away. But if each one of these hundred thousand men has science, skill, machinery and capital equal to the publisher of the Herald, and is producing a commodity different from all the others—a commodity as desirable to the publisher of the Herald as the Herald is to him—he will then be able and willing to give, in exchange for the Herald, a commodity as desirable and intrinsically as valuable, as the Herald itself. And the publisher of the Herald will get the full value of, or a full equivalent for, his hundred thousand copies of the Herald.

Is it not, therefore, perfectly plain, in this case, that the publisher of the Herald has the highest interest that every man, who desires to buy the Herald, shall have all the science, skill, machinery, and capital, that may enable him to produce, and give in exchange for the Herald, something that is equally as desirable and valuable as is the Herald itself? Would it not be fatuity and suicide for the publisher of the Herald to advocate the tyranny and villainy of depriving all these hundred thousand men, who desire to buy the Herald, of all the science, skill, machinery, and capital, which alone can enable them to give, in exchange for it, something that is intrinsically as desirable and valuable as itself? Yet this is precisely what the Herald, and the press generally of [9] the country, have been doing in all past time, and are doing to-day.

Of course, we cannot know, beforehand, what varieties and amounts of commodities mankind will invent and produce in the future, when, if ever, they shall have all the facilities and inducements for invention, production, distribution, and consumption, which ample legal protection to the rights of inventors, and ample money capital, will give them. Nor can we know, beforehand, the amount of money that will be required to bring science, skill, invention, machinery, and production to their highest points, and to distribute to the consumers the commodities produced. But the following article, which has been previously published,* on “The Law of Prices,” will aid us in understanding how utterly and ludicrously inadequate, unworthy of consideration, how nearly useless in fact, are all such amounts of money as we have been accustomed to think of, as sufficient for these purposes.

In truth, nobody claims that our present amounts of money are at all adequate to the needs of industry and traffic, if the latter is to be carried on upon the principle that money should be a bona fide equivalent of the labor and property that are to be bought with it. All that those, who advocate restrictions upon money, can say in defence of them, is, that by coercing men into selling their labor and property for less than they are worth, a small amount of money can be made to have as much “purchasing power” as a larger one. This is only saying that, by establishing a monopoly of money, the few holders of that monopoly will be enabled to coerce all other men into selling their labor and property for less than they are worth. And this is the whole purpose of the monopoly. It is only a cunning species of robbery, which has hitherto been successful, solely because the victims did not understand the jugglery by which it was accomplished.

[10]

THE LAW OF PRICES:

A DEMONSTRATION OF THE NECESSITY FOR AN INDEFINITE INCREASE OF MONEY.

I.

The writers on money seem never to have obtained the first glimpse of the fundamental law which governs prices, and which necessitates a constant and indefinite increase in the volume of money. That law may be illustrated in this manner:

Suppose an island cut off from all communication with the rest of the world, and inhabited by one hundred men. Suppose that these hundred men know no industry except the production of wheat; that they produce annually one thousand bushels, each man producing ten bushels, which is enough for his own consumption. Suppose further that these hundred men have money to the amount of five dollars each in gold, silver, and copper coins, and that these coins are valued by them as highly as similar coins are now by us. What will be the price of wheat among these men, compared with the coins? Plainly, it will bear no price at all. Each man producing for himself all he can eat, no one has any occasion to buy. Therefore none can be sold at any price.

But suppose that one after another of these hundred men leave wheat-growing, and engage in the production of other commodities,—each producing a different commodity from all the others,—until there shall be a hundred different commodities produced; only one man being left to produce wheat. And suppose that this one man has increased his product from ten bushels to one thousand. There is now just as much wheat as there was when all were employed in producing it. The only differences are, first, that the whole amount is produced now by one man, where before it was produced by a hundred men; and, secondly, that the ninety-nine men have each engaged in the production of some commodity, different from that produced by any other, but of which, we will suppose, all the others wish to purchase each his proportionate share for consumption.

There is now a hundred times as much wealth produced as when all produced wheat and nothing else. But each kind has only a single producer, while it finds a hundred consumers. And each man’s product, we will suppose, has the same value with every other man’s product.

What, now, will be the price of wheat among these hundred men relatively to the coins? Doubtless a dollar a bushel. When the first man abandoned wheat-growing, and betook himself to some other occupation, he created a demand for ten bushels of wheat, which he still wanted for consumption as before. This demand for ten bushels would doubtless be sufficient to give wheat the price of one cent per bushel, where it had no price before. When a second man of the hundred abandoned wheat-growing, he created a demand for ten bushels more; making twenty bushels in all. This increased demand would doubtless be sufficient to raise the market price of wheat to two cents a bushel. [11] When a third man of the hundred left wheat-growing for some other pursuit, his demand for ten bushels would raise the market price another cent; and so on, until by the time the ninety-nine had left wheat growing, the continually increasing demand would have raised the price to ninety-nine cents a bushel; for convenience of round numbers, say a dollar a bushel.

Here, then, wheat has been raised from no price at all to a dollar a bushel, not because there is any less wheat produced, or any more consumed, than before, but solely because the whole thousand bushels are now produced by one man, instead of being produced, ten bushels each, by the hundred different men who were to consume it; and because, further, each of the ninety-nine men, who have left wheat-growing, is able to purchase wheat, inasmuch as he has been producing some other commodity which brings him as good a price as the wheat brings to the man who still produces wheat.

Under this new state of things, then, the man who continues to produce wheat produces a thousand bushels, worth a dollar a bushel; that is, a thousand dollars’ worth in all. Each of the other ninety-nine produces an equal amount of market value in some other commodity. The whole hundred men, then, produce wealth that has now a market value of one hundred thousand dollars, where originally they had produced nothing that had any market value at all.

This change in the price of wheat has been produced, then, solely by reason of the diversity of industry and production that has taken place among these hundred men. And the market prices of all the other ninety-nine commodities have been affected by the same law, and to the same extent, as has been the price of wheat.

Here, then, is a hundred thousand dollars’ worth of commodities produced, each man producing a thousand dollars’ worth.

As each man retains a hundredth part of his product—that is, ten dollars’ worth—for his own consumption, he has nine hundred and ninety dollars’ worth for sale. The whole hundred men, therefore, have one hundred times nine hundred and ninety dollars’ worth for sale, which is equal to ninety-nine thousand dollars in all; for convenience of round numbers, say one hundred thousand dollars.

The hundred men, having each five dollars in coins, have in the aggregate five hundred dollars. To make the purchases and sales of these hundred thousand dollars’ worth of commodities, will require each of these five hundred dollars to be exchanged for commodities, on an average, two hundred times. That is, in carrying on the commerce of these hundred men for a year, their whole stock of money must be exchanged, on an average, once in a little less than two days. Or if we reckon but three hundred business days in a year, we shall find that the whole stock of money must be exchanged, on an average, once in every day and a half.

Such rapidity of exchange would be practicable enough, if the holders of the coins should all part with them readily at their true and natural value, instead of holding them back in the hope of getting for them more than they were really worth. But where there was so active a demand for the coins as to require that the whole stock be sold, on an average, once in every day and a half, it is natural to suppose that the holders of the coins would hold them back, in [12] order to get more for them than their true and natural value. And in so far as they should do so, they would obstruct trade, and by obstructing trade obstruct and discourage production, and thus obstruct the natural increase of wealth.

II.

But suppose, now, that the number of men on this island be increased from one hundred to one thousand, and that they are all engaged in producing wheat only; each man producing ten bushels, which is all he wants for his own consumption. And suppose that each man has five dollars in gold, silver, and copper coins. What will be the price of wheat among these men, relatively to the coins? Clearly, it will have no market price at all, any more than it had when there were but a hundred men.

But suppose that nine hundred and ninety-nine of these thousand men leave wheat-growing, and engage each in the production of a commodity different from that produced by any one of the others. And suppose that the one who still continues to produce wheat is able, from his increased science, skill, and machinery, to produce ten thousand bushels—ten bushels for each of the thousand men—where before he produced only ten bushels for himself.

There is now just as much wheat produced as there was before. But it is now all produced by one man—nine hundred and ninety-nine thousandths of it being produced for sale—instead of being produced by a thousand men, each producing ten bushels for his own consumption.

What, now, will be the price of wheat among these thousand men? Why, being governed by the same law that has already been illustrated in the case of the hundred men, it will go on rising one cent at a time, as each man leaves wheat-growing for some other pursuit, until, when nine hundred and ninety-nine shall have left wheat-growing, and shall have become purchasers of wheat, instead of producers, the price will be nine hundred and ninety-nine cents a bushel—for convenience of round numbers, say ten dollars a bushel—where before it bore no price at all.

In this state of things, then, the man who still continues to produce wheat, will produce ten thousand bushels; worth, in the market, ten dollars a bushel, or a hundred thousand dollars in all.

Here, then, we have the price of a hundred thousand dollars for ten thousand bushels of wheat, which, when produced by a thousand different men, each producing ten bushels for his own consumption, had no market value at all. And the other nine hundred and ninety-nine men, we will suppose, produce each a different commodity from all the others; the whole annual produce of each having the same market value as the wheat-growers crop of wheat. The market value, then, of all the products of the whole thousand men will be one thousand times one hundred thousand dollars—that is, one hundred million dollars—where before, when they were all producing wheat and nothing else, their whole products had no market price at all.

When we consider that each producer retains for his own consumption but a thousandth part of his products (a hundred dollars worth), and that, consequently, nine hundred and ninety-nine parts of all these products are not only [13] to be sold, but to be sold twice, as they would now have to be,—that is, once by the producer to the merchant, and once by the merchant to the consumer,—we see that there will be sales to the amount of one hundred and ninety-nine million eight hundred thousand dollars—for convenience of round numbers, say two hundred million dollars—where before, when all were producing wheat, there was no such thing as a sale of a cent’s worth of any thing.

These thousand men, we have supposed, had each five dollars in coins—making five thousand dollars in all—with which to make these purchases and sales of two hundred millions. How many times over will all these coins, on an average, have to be bought and sold, in order to effect these exchanges? Dividing two hundred millions by five thousand, we have the answer; namely, forty thousand times! Dividing this number by three hundred,—which we will suppose to be the number of business days in a year,—we find that, in order to make their exchanges, their whole stock of money must be bought and sold, on an average, one hundred and thirty-three times every day!

Thus we see that one thousand men, with such a diversity and amount of production as we have supposed, would have two thousand times as many purchases and sales to make as the one hundred men. And in making these purchases and sales, we see that their whole stock of money would have to be bought and sold two hundred times oftener than would the whole stock of money of the one hundred men, in making their purchases and sales of one hundred thousand dollars. We see, too, that, if we call eight hours a day,—that being the usual number of business hours,—their whole stock of money would have to be bought and sold, on an average, sixteen times over every hour, or once in every four minutes; whereas the whole stock of money of the one hundred men would have to be bought and sold only once in a day and a half; or—calling eight hours a day—once in twelve hours.

Such, let it be specially noticed, is the difference in the rapidity required in the purchase and sale of money in making the exchanges among a thousand men, on the one hand, and a hundred men, on the other, although the thousand men have the same amount of money, man for man, as the hundred men; the thousand men having five thousand dollars, and the hundred having but five hundred dollars.

This illustration gives some idea of the effect produced upon prices by the expansion of industry and the diversity of production. And yet the writers on money tell us that a large number of men need no more money, man for man, than a small number; that, if a hundred men need but five hundred dollars of money, a thousand men will, by the same rule, need but five thousand dollars.

In the case already supposed,—of the one thousand men,—how far would their five thousand dollars avail as money toward making their exchanges of two hundred million dollars? Plainly, they would avail nothing. The holders of them, seeing the necessities of the people for money, would hold back their coins, and demand so much more than their true and natural value, as to put a stop substantially to all production, except of such few things as could be exchanged by barter, or as each one could produce for his own consumption.

The obvious truth is that, in order to carry on their commerce with money at its true and natural value, and consequently without obstruction or extortion [14] from the money holders, it is necessary that these thousand men, with their increased diversity and amount of production, should have two hundred times as much money, man for man,—and two thousand times as much in the aggregate,—as was necessary for the one hundred men, as before supposed.

In other words, the thousand men have two hundred million dollars of sales to make, where the hundred men had but one hundred thousand. Dividing two hundred million by one hundred thousand, we find that the thousand men, with such diversity and amount of production as we have supposed, have two thousand times as many sales to make as the one hundred had; and consequently that they require two thousand times as much money as did the one hundred.

III.

But to show still further the ratio in which diversity of industry tends to increase the price of commodities, relatively to any fixed standard, let us suppose that the number of men on this island be still further increased from one thousand to ten thousand. And suppose that all these ten thousand are engaged in producing wheat alone; each producing ten bushels for his own consumption, that being all he wants. And suppose they have each five dollars in gold, silver, and copper coins. What will be the price of wheat, relatively to the coins? Clearly, it will have no price at all, not even so much as one cent a bushel.

But suppose that all but one of these ten thousand men should leave wheat-growing, and engage in other industries; each one producing a different commodity from all the others. And suppose that the one who still continues wheat-growing has acquired such science, skill, and machinery, that he is now able to produce a hundred thousand bushels—that is, ten bushels each for ten thousand men—where before he only produced ten bushels for himself.

What will now be the price of wheat among these ten thousand men? Why, by the same law that has been already illustrated, it will be ninety-nine dollars and ninety-nine cents a bushel—for convenience of round numbers, say one hundred dollars a bushel—where before it had no market value at all.

And yet there is just as much wheat produced as there was before, and every man gets just as much wheat to eat as he had before, when all were producing wheat.

In this state of things, the one hundred thousand bushels of wheat, produced by one man, at a hundred dollars a bushel—which will then be its market value—are worth one hundred thousand times one hundred dollars; that is, ten million dollars. And suppose that all the other nine thousand nine hundred and ninety-nine men are each engaged in an industry as profitable as that of the remaining wheat grower. The aggregate production of the whole ten thousand men will now have a market value equal to ten thousand times ten million dollars; that is, one hundred thousand million dollars.

And if we suppose that all these commodities are to be sold* three times [15] over,—that is, once by the producer to the wholesale dealer, once by the wholesale dealer to the retailer, and once by the retailer to the consumer,—we shall see that there are to be sales equal to three hundred thousand million dollars, where before, when all were producing wheat, and nothing else, there was no sale of a cent’s worth of any thing, and no market value at all for any thing.

Now suppose that the coins, which these men had, have remained fixed at the same value they had when the men were all producing wheat. How many times over, then, must they necessarily be bought and sold, in the course of a year, in order to effect the purchase and sale of these three hundred thousand millions—or one hundred thousand millions three times over—of property that are to be exchanged?

There are ten thousand men, each having five dollars in coins; that is, fifty thousand dollars in all. Dividing three hundred thousand millions by fifty thousand, we find that the whole of these fifty thousand dollars in coins must be bought and sold six million times! Six million times annually, to effect the exchanges of the products of ten thousand men!

Dividing six million by three hundred (which we will suppose to be the number of business days in a year), we find that, on an average, their whole stock of money must be bought and sold twenty thousand times over every day. Or supposing the business day to be eight hours, the coins would all have to be bought and sold twenty-five hundred times over every hour; equal to forty-one and two-thirds times every minute.

And this happens, too, when the ten thousand men have the same amount of coin, man for man, as the one hundred and the one thousand men had, in the cases before supposed.

Thus we see that, with such a diversity and amount of production as we have supposed, the exchanges of the ten thousand men would require that their whole stock of money should be bought and sold one hundred and fifty times oftener than the whole stock of the one thousand men, and thirty thousand times oftener than the whole stock of the one hundred men.

We also see that, in the cases supposed, the ten thousand men, having three hundred thousand millions of exchanges to make, have fifteen hundred times as many as the one thousand men, who had but two hundred millions; and that they have three million times as many exchanges to make as the one hundred men. Consequently the ten thousand men require fifteen hundred times as much money as the one thousand men, and three million times as much money as the one hundred men.

IV.

According to the foregoing calculations, the ratio of increase required in the volume of money is this: Supposing the diversity and amount of production to keep pace with the increase in the number of men, and supposing their commodities to be sold but once,—that is, directly from producer to consumer,—a hundred men would require a thousand times as much money as ten men; a thousand men would require a thousand times as much money as a hundred men; ten thousand men would require a thousand times as much money as a thousand men; and so on.

[16]

But inasmuch as, in the case of a thousand men, their commodities would have to be sold twice,—that is, once by the producer to the merchant, and once by the merchant to the consumer,—the thousand men would require two thousand times as much money as the hundred men. And inasmuch as, in the case of the ten thousand men, their commodities would have to be sold three times over,—that is, once by the producer to the wholesale dealer, once by the wholesale dealer to the retailer, and once by the retailer to the consumer,—the amount of money required, instead of being either one thousand or two thousand times as much as in the case of the one thousand men (whose commodities were sold but twice), would be one and a half thousand times (as three sales are one and a half times as much as two)—that is, fifteen hundred times—as much as in the case of the one thousand men.

Stating the results of the proceding calculations in the simplest form, we find that different numbers of men, having a diversity and amount of production corresponding to their numbers, in making their exchanges with each other, require money in the following ratios, relatively to each other; namely,—

10 men require

$100

100 men require

100,000

1,000 men require

200,000,000

10,000 men require

300,000,000,000

But as the same money could be used many times over in the course of a year, they would not need an amount of money equal to the amount of their annual exchanges. If, then, we suppose the aggregate of their annual exchanges to be as above, and their whole stocks of money to be used three hundred times over in a year,—that is, once a day, calling three hundred the number of business days in a year,—we find that the stocks of money required would be as follows:

10 men would require

$ .33⅓

100 men would require

333.33⅓

1,000 men would require

666,666.33⅓

10,000 men would require

1,000,000,000

Or, to state the case in still another form, supposing their aggregate annual exchanges to be as above, and supposing their whole stocks of money to be bought and sold three hundred times over in the year, the money required, per man, would be as follows:—

10 men would require

$ .03⅓ each.

100 men would require

3.33⅓ each.

1,000 men would require

666.66 each.

10,000 men would require

100,000 each.

If any body thinks he can dispute these figures, let him attempt it. If they cannot be disputed, they settle the law of prices.

[17]

V.

The foregoing suppositions are, first, that the ten thousand men came finally to have ten thousand different kinds of commodities, where they originally had but one,—namely, wheat; secondly, that they finally came to have ten thousand times as much wealth, in quantity, as they had originally, when all were producing wheat; thirdly, that wheat, which at its first sales brought only one cent a bushel, came afterwards to sell for ten thousand cents a bushel,—although the amount of wheat produced, and the supply of wheat for each individual, were the same in the one case as in the other; fourthly, that the same effect is produced upon the prices of all the rest of the ten thousand different kinds of commodities as upon the price of wheat; and, fifthly, that the annual sales, made by the ten thousand men, amounted finally to three hundred thousand million dollars, where their first sales had amounted to but ten cents,—the amount which the first man who left wheat-growing paid for his yearly supply of ten bushels.

It is not necessary to suppose that such a diversity and amount of production will ever be realized in actual life, although that is not impossible. It is sufficient that these figures give the law that governs prices, and consequently demonstrate that a constant and enormous increase of money must be necessary to keep pace with the increase of population, wealth, and trade, if we wish to give free scope to diversity and amount of production.

Unless money should be increased so as to keep pace with this increased demand, the result would be, first, obstruction to trade; secondly, obstruction to, and discouragement of, industry; and thirdly, a corresponding obstruction to the increase of wealth.

In fact, unless the amount of money were increased, these hundred men, thousand men, and ten thousand men, instead of having a hundred, a thousand, or ten thousand different kinds of commodities, would advance very little beyond the state they were in when all were producing wheat and nothing else. Some feeble attempts at other industries might possibly be made, but their money, like the shells and wampum of savages, would aid these attempts but slightly; and the men, unless they invented some other money, would either remain absolute savages, or attain only to a very low state of barbarism.

The practical question, then, is, whether it is better that these ten thousand men should remain mere savages, scratching the earth with rude sticks and stones to produce each ten bushels of wheat, or whether it is better that they should all have the money—which stands in political economy for all the ingenuity, skill, science, machinery, and other capital which money can buy—that may be necessary to enable them to produce, in the greatest possible abundance, and of the greatest possible excellence, all the ten thousand commodities that will contribute to their happiness.

A full discussion of this subject would require much more space than can here be given to it. It may perhaps be continued at a future time, if that should be necessary. But enough has doubtless now been said to show the general law that governs prices, and consequently to show the necessity for an immense increase of money; an increase dependent upon the diversity and amount of production, and the natural laws of trade applicable thereto; such an increase as no legislation can ascertain beforehand, or consequently prescribe.

[18]

SECTION III.

It will now perhaps be said by some, in opposition to this theory of the rise in prices, that it is not sustained by the experience of mankind; that, on the contrary, the introduction of machinery makes some things wonderfully cheap, which before, relatively to other commodities, were very dear. And as an illustration of this, perhaps we shall be pointed to the present cheapness of printed matter, as compared with the price of written matter before the discovery of the present modes of printing, and the present modes of making paper; a man now being able, probably, to buy as much printed matter for one cent, as one could have bought of written matter, five hundred years ago, for five, or perhaps ten, dollars.

But the man who makes this objection, does not take into account all the facts upon which the rise in prices depends. He does not take into account the fact that the market price of any commodity, whether produced in less or greater quantity, or by less or more labor, depends only very slightly, if at all, upon the greater or less amount of labor it costs the producer, but mainly, if not wholly—as has already been explained—upon the power and disposition of other men to buy it, and give him something equally desirable in exchange for it. The producer of any particular commodity, however desirable a one it may be, can get no just compensation for it, except from those who are themselves producing something equally desirable, which they are willing to give in exchange.

If, for example—to repeat an illustration already given—a hundred thousand copies of the New York Herald were printed in a country containing only a hundred thousand men, who desired it, and these men were producing nothing that they could spare, or give in exchange, the Herald would plainly bring no price at all, however much these hundred thousand men might desire it. But if these hundred thousand men should become producers of such commodities as they could spare, and give in exchange for the Herald, the market price of the Herald would rise just in proportion to the value of these other commodities. And if these hundred thousand men should finally, through the aid of invention, science, skill, machinery, and capital, become producers of a [19] hundred thousand different commodities—each man producing a different commodity from all the others—and each man should be willing to give, in exchange for the Herald, such a portion of his own particular product as would be as desirable for the producer of the Herald, as a copy of the Herald was to him, the Herald, which before brought no price at all, will now obtain for its producer a hundred thousand different commodities, each of which will be as valuable to him, as a copy of the Herald will be to each of these hundred thousand purchasers. And the price of the Herald, relatively to any fixed standard of value, will have risen—in accordance with the “Law of Prices” already given—from nothing, to a price corresponding to the value of these hundred thousand different commodities that will be given in exchange for it.

The reason why printed matter has become so cheap, in comparison with many or most other commodities, is not at all that the knowledge conveyed by it has become less desirable or valuable than it was before the art of printing was discovered—for both the desire for knowledge, and the value of the knowledge conveyed, have been constantly increasing ever since that time—but it is because invention and production in paper-making and printing have altogether outrun invention and production in most other directions; and mankind are consequently unable, except in comparatively few cases, to give real equivalents for printed matter. Printed matter, therefore, has now to be sold for only what the producers of other commodities are able to pay. But if invention and production, in other directions than paper-making and printing, should go on increasing to such a degree that all other men will be able to offer, in exchange for printed matter, commodities as desirable as the printed matter itself, the prices of printed matter will then rise to their true level.

And what is true of printed matter, is equally true of certain other commodities, in whose production science and invention have outrun the science and invention that are employed in ordinary pursuits. These commodities now command no equitable price in the market, solely because mankind in general, for the want of invention, science, skill, machinery, and capital, are [20] unable to produce commodities of equal value, to be given in exchange.

From all this, it will be seen that the market value of each man’s product depends, not at all, or at best very slightly, upon the greater or less labor it costs him to produce it—for when all labor is performed by machinery, and men are required only to tend the machinery, it can hardly be said that anything costs human labor; but it depends mainly, if not wholly, upon the number of other men who can buy it, and give him something desirable in exchange for it.

At present no such diversity or amount of production exists, as we shall sometime see; and, consequently, prices have never risen to any such height as they sometime will. But as surely as the diversity and amount of production go on increasing, just so surely will the rise of prices, relatively to any fixed standard of value, also go on increasing in the ratio, and according to the rule, that have now been explained. And the amount of money required for the exchanges of property will of course go on increasing in like ratio. And any attempt to keep down prices, by limiting the amount of money, will only result in suppressing invention, science, skill, machinery, and production, and in the inequitable distribution of the little wealth that is permitted to be produced.

But this theory will be more fully confirmed in subsequent papers.

SECTION IV.

It will now be seen how clearly—as a general rule—it is the interest of all that each and every individual shall have all the capital—that is, all the money—that may be necessary to enable them to produce the greatest variety and amount of wealth; to make the most discoveries in science, the most inventions in implements and machinery; to produce the greatest number of new commodities for direct consumption; and also to enable all those who are neither discoverers nor inventors, to engage in the greatest variety of industries—that is, in the production of all new commodities, as fast as they shall be invented.

[21]

We need have no fear that machinery will ever prove an enemy of human labor, if we only have money enough to enable a sufficient number of persons to go into the production of new commodities as fast as they shall be invented. Men driven out of one employment, by machinery, will then be enabled to go into another more lucrative; because every new industry raises the value of all others, and, as a general rule, takes its place on a level with all others. The lack of money to enable men to go into new industries, is the only reason why—at least in recent times—machinery has been regarded as the enemy of the laborer.

The greater the variety of commodities produced, the less the competition in the production of each, and the higher the prices of all; for the price of each rises just in proportion to the number of others for which it can be exchanged, and the amounts of each of these others for which it can be exchanged.

As a general rule, everybody who engages in the production of a new commodity relieves somebody of a competitor, and, to the extent of his own production, becomes a purchaser of the products of others.

Especially ought we to realize how important it is that every facility and inducement that is reasonably possible—both in money and in legal protection—be afforded to all discoveries in science, and all mechanical inventions. These discoveries and inventions are the great, the permanent wealth of the world. The material wealth which we accumulate by means of them, is mostly temporary, and much of it ephemeral. It is quickly consumed, or goes quickly to decay. It could do almost nothing for mankind, were it not for the scientific discoveries and mechanical inventions by which it can be constantly reproduced to meet our daily wants. These discoveries and inventions are, also, not solely the wealth of the particular times or localities in which they are made; but are to become the property of the whole world, and of all future time. It is true that many, or most, of them are being quickly superseded by others that do the same work better; but the inventions and discoveries of each year, or generation, prepare the way for those of the next; and thus, by this succession of inventions and discoveries, the whole world is to be enriched [22] through all the ages. And we should not grudge the wealth which a perpetual property in them would give to their authors; for, at best, it will probably, on an average, be not more than one per centum of the wealth created by means of them. And if this one per centum should prove large, for the time being, in proportion to the earnings of other men, it will only stimulate the production of other discoveries and inventions, of which the world will get the benefit, at a like cost of one per centum of the wealth produced by means of them.

Short-sighted men, oppressed by poverty and toil, object to an inventor’s having such a property in the products of his labor as other men have in the products of theirs; because, say they, it would be wrong that he should receive so much for his labor, when we receive so little for ours. But such men should understand that a man’s right to the products of his labor does not depend at all upon the value of those products. Whether more or less valuable, they are equally his, solely because he produced them. Labor is worth nothing of itself. Its value depends wholly upon what it produces. If it produces much, it is worth much; if it produces little, it is worth little; if it produces nothing, it is worth nothing. Nearly all the world over, the great body of the people are borne down by the heaviest toil; yet, for the want of science, implements, machinery, and capital, they produce very little; and that little brings them either a very small price, or absolutely nothing, in exchange, because so few have any thing that they can give in exchange. And this fate, that has so crushed, impoverished, and enslaved mankind for thousands of years in the past, will assuredly continue to crush, impoverish, and enslave them for thousands of years in the future, unless, by means of science, implements, machinery, and capital, they make their industry more productive than it heretofore has been. These men should also understand that the inventor has always been ready and eager to relieve them of their poverty and toil, by giving them machinery that should do their work for them; and do for them a thousand times more work than they can do for themselves; and that the only reasons why he has not done so, hundreds and thousands of years ago, have been, first, that he has [23] been without the necessary means for producing his inventions, and has been denied all just compensation—until quite recently all compensation—for them; and, secondly, that the mass of men have also been without the necessary means—that is, the necessary money—for utilizing his inventions after he has produced them. Whenever the right of the inventor to the products of his labor shall be acknowledged, and the people shall be permitted to have all the money that shall be necessary to enable them to utilize his inventions, all their present complaints of poverty and toil will rapidly disappear. It is, therefore, not only gross injustice, but the worst of policies, to deny to scientists and inventors their right of property in their discoveries and inventions.

It is manifest that the mass of mankind can lift themselves out of their present poverty and servitude only through the aid of science, invention, machinery and money. It is manifest, too, that we can set no limits either to the variety or amount of wealth that mankind are capable of producing, if only full scope be given to science, invention, machinery, and money. It is also obvious that the greater the diversity and amount of production, the more equally and equitably will wealth be distributed; since every separate industry gives a support to a separate body of producers; and when all industries are free, the tendency of all—especially of all such as must occupy the great body of the people—is to come to one common standard of compensation.

Endnotes

*

It would be absurd to expect any rapid increase or equitable distribution of wealth, unless we abjure forever the theory, on which our own government and so many others now act, viz., that it is wholly unnecessary that money should be an equivalent of the property that is to be bought with it; that the money of a country should be restricted by law to a very small amount; that the right to issue this amount should be granted as a monopoly to a very few persons; that these few should thus be licensed to control all industry and traffic; to fix the prices of all property and labor; and thus to extort, in exchange for their money, many times more of all other men’s property and labor than the money is really and truly worth. Such a monopoly has obviously no tendency or purpose but to obstruct production and exchange, and enable the few to secure to themselves the wealth produced by the many.

*

It was first published in the Radical Review for August, 1877; and afterward in a pamphlet.

*

All but ten millions—a ten thousandth part of the whole—would have to be sold, since each man would retain for his own consumption only a ten thousandth part of what he produced; namely, one thousand dollars’ worth.

T.32 No. 1. Revolution: The only Remedy for the Oppressed Classes of Ireland, England, and Other Parts of the British Empire (1880).↩

Title

[32.] No. 1. Revolution: The only Remedy for the Oppressed Classes of Ireland, England, and Other Parts of the British Empire. A Reply to “Dunraven” (Second Edition, n.p., 1880).

- also online Shorter Works, vol. 2: </titles/2292#lf1531-02_head_049>

Text

A REPLY TO “DUNRAVEN.”

No. 1.

REVOLUTION:

THE ONLY REMEDY FOR THE OPPRESSED CLASSES OF IRELAND, ENGLAND, AND OTHER PARTS OF THE BRITISH EMPIRE.

A REPLY TO “DUNRAVEN.”

(SECOND EDITION.)

[3]

Dunraven

Dunraven

To the Man in Ireland, Whose Name is Believed to be Quinn, but Who Signs Himself “Dunraven.”

Sir,—

Your letter of Jan. 1, 1880, addressed to the Editor of the New York Herald, and published in the Herald of Jan. 7, deserves an answer, for the reason that it undoubtedly expresses not only your own sentiments, but also those of the class to which you belong. It virtually announces, and was evidently intended to announce, to the Irish people, both in Ireland and America, and to all other persons interested, that the landlords of Ireland,—backed, as you claim that they are, by the whole power of “the British Empire”—are determined to drive what you consider the surplus population of Ireland out of the country by starvation. You virtually say that all this feeding the starving Irish in their own country, is merely money and mercy thrown away; that as nothing but starvation will ever induce them to go, the sooner they are left to see that they have no other alternative, the better it will be for them, and for everybody else.

If you had, in so many words, threatened to drive them out by the bayonet, you could hardly have been more explicit. This makes it necessary that not only the Irish people, but that everybody else who feels any interest in such a matter, should inquire by what right you propose to do all this; and also whether you really have the physical power necessary to do it.

The following address to them, and this letter to yourself, are intended to show not only that you have neither the right, nor the power, to drive them out, but that they, and others similarly situuated, have both the right and the power to drive you, and all [4] your abettors, out of both Ireland and England; and also, if need be, from off the face of the earth.

If you, and others like you, in England and Ireland, are prepared to meet this issue, we think that other men—men who believe that human beings have rights in this world, and that such a government as that of “the British Empire” has no rights at all—will, at no distant day, be ready, in sufficient numbers, to try conclusions with you.

The whole force of your letter, as a defence of Irish landlords, rests upon the assumption that they are the real and true owners of the lands they now hold. But this assumption is a false one. These lands, largely or mostly, were originally taken by the sword, and have ever since been held by the sword. Neither the original robbers, nor any subsequent holders, have ever had any other than a robber’s title to them. And robbery gives no better title to lands than it does to any other property.

No lapse of time can cure this defect in the original title. Every successive holder not only indorses all the robberies of all his predecessors, but he commits a new one himself by withholding the lands, either from the original and true owners, or from those who, but for those robberies, would have been their legitimate heirs and assigns.

And what is true of the lands in Ireland is equally true of the lands in England. The lands in England, largely or mostly, were originally taken by the sword, and have ever since been held by the sword; and the present holders have no better titles to them than simple, naked robbery has given them.

If the present holders, or any of their predecessors, in either Ireland or England, have ever purchased any of these lands, they have either purchased only a robber’s title to them, or they have purchased them only with the profits or proceeds of previous robberies. They have, therefore, never had, and have not now, any real titles to them.

For these reasons, the present holders of lands generally, in either England or Ireland—whether they hold them by inheritance [5] or purchase—have no whit better title to them, than the highwayman has to the purse he has taken from the traveller, or than the pirate has to the ships and cargoes he has captured on the ocean.

It cannot be supposed that you are so stupid as to be ignorant of all this; and you seem to be conscious of it—and also of the fact that these lands are to be holden, if at all, only by the sword, in the future, as they have been in the past—when you say that—

“The liability [of the actual cultivator] to pay rent can be evaded only by overturning the whole social structure of the United Kingdom.”

Your opinion on this point is doubtless correct. But what does “the whole social structure of the United Kingdom” amount to? To this only: That the original robbers and holders of these lands (in both England and Ireland), with such accomplices as they have, from time to time, induced to join them, have now, for many hundreds of years, constituted a conspiracy—that is, have organized themselves into what they call a government—for the purpose of sustaining each other in the possession of all the lands they have seized; and also for the purpose of plundering and enslaving all the descendants of those from whom the lands were originally taken; and for the still further purpose of plundering and enslaving, as far as possible, all other peoples in other parts of the world. This conspiracy has existed in an organized form,—that is, in the form of both State and Church,—for many hundreds of years. And it is this conspiracy, and nothing else, which you attempt to dignify by the name of “the whole social structure of the United Kingdom.”

Do you really think that an “overturning” of such a “whole social structure” as this would be any great calamity, either to the “United Kingdom,” or to the world at large? Would it not rather be the opening of a day of freedom for more than two hundred millions of enslaved people, “British subjects,” so-called; [6] to say nothing of its influence on other “social structures,” of like character, in other parts of the world?

But you evidently consider such an “overturning” impracticable, for you say,—

“It is not likely that the Irish, in and out of Ireland, will combine to wage war upon the British Empire; neither is it very probable that they would be successful.”

By this you mean that this confederacy of robbers and tyrants—small in numbers, but constituting the only real ruling force of what you call “the British Empire”—is too well organized, too compact, too rich, and too powerful, and has too much at stake, to be successfully resisted, or, as you say, “overturned.”

But in this you may be mistaken. Less than a century ago, “the whole social structure” of France was “overturned,” notwithstanding all, or nearly all, the other “social structures” of Europe combined to sustain it. Do you imagine that the other “social structures” of Europe will ever combine to sustain “the whole social structure of the United Kingdom,” as they once combined to sustain that of France? You know that nothing of that kind will ever take place. You know that, henceforth, each of “the social structures” of Europe must take care of itself as best it may; and that already most of them are tottering to their fall. You know that all European combinations, in the future, are to be combinations to “overturn” existing “social structures,” and not to sustain them.

How, then, do you think that that confederacy of robbers and villains, whom you call, and who imagine themselves to be, “the British Empire,” will fare, when the trial comes? And how far off do you imagine that trial to be?

Do not deceive yourselves in this matter. You are really few in number, and easily distinguished from the great body of those whom you and your predecessors have plundered and enslaved. The very wealth in which you so pride yourselves, and on which you rely as a means of safety, is really an element of weakness. It is not yours. It is all stolen property. It consists only of the [7] spoils that have been accumulated through centuries of robbery and extortion. If those, and the descendants of those, from whom all this wealth has been taken, shall combine to take it from you, it will be only an act of just and lawful reprisal and retribution. And it now offers itself to them as the richest prize, of this kind, that was ever offered to men on earth. Do you not think they will take it?

The fact that the direct descendants of the original holders of these lands cannot now be individually traced, and reinstated in the property of their ancestors, cannot screen the present holders from their just liability; since the original robbery of the lands, and the entailing them in the families of the original robbers, have not only deprived the direct descendants of the original holders of their rights, but have also deprived all other persons of their natural rights to buy these lands. These other persons, therefore, as well as the direct descendants of the original holders, have a wrong to be redressed. And these two classes, as they cannot now be distinguished from each other, should make common cause.

In addition to all this, these conspirators have, as a government, oppressed, robbed, enslaved, and made war upon, everybody, indiscriminately—in England, Ireland, and throughout what you call “the British Empire”—whom they could oppress, plunder, or subdue. In this way, then, as well as through the original robberies of the lands, they have incurred a liability to everybody, who has, in any way, suffered at their hands. Whenever, then, the day of settlement comes, there will be some two hundred and fifty millions of people, who will be entitled to satisfaction for the wrongs you have inflicted upon them.

And do not imagine that the present landholders alone are to be finally held liable. All who have been voluntary accomplices with them—and all who have voluntarily aided in upholding the British government, have been accomplices with them—have justly incurred the same penalty as the landholders themselves. Among these accomplices have been your great manufacturers, merchants, bankers, ship-owners, money-lenders (lenders of money to the government)—everybody, in fact, high or low, who has voluntarily been part and parcel of the British government—have been accomplices in the thousand crimes by which the people at large, [8] throughout the Empire, have been plundered and enslaved. And having been such accomplices, their property may as rightfully be seized for purposes of reparation, as may the lands of the landholders themselves; for every member of a conspiracy shares in the guilt of all the others; and is equally liable with them to be coerced into making restitution and compensation.

Sir, From the ancient time, criminals of a certain class have been designated as hostes humani generis: enemies of the human race. They received this designation because their crimes were committed, not from any special malice towards particular victims, but solely from motives of plunder; and they were wholly indifferent as to the name or nation of the persons to be plundered. They as willingly robbed, and, if need were, murdered, the people of any one country, as of any other. It being their practice to plunder, to the extent of their ability, all mankind indiscriminately, they naturally and justly came to be regarded as enemies of the whole human race. And from this fact it necessarily followed that they might justly and rightfully be killed, whenever and wherever they could be found, and by whomsoever could kill them.

This designation—enemies of the human race—has more generally been applied to pirates; to men who committed their crimes upon the sea. But there have been other hostes humani generis; men devoted to plunder, who committed their crimes upon the land; and who were equally indifferent, with pirates on the sea, as to the persons on whom their crimes were committed. The ruling classes in England, from the time the Anglo-Saxons first came there, have been hostes humani generis: enemies of the human race. They have had only one motive, viz.: plunder. And so long as this motive was gratified, they have cared not whom they plundered, enslaved, or murdered.

The Anglo-Saxons were robbers and pirates in their own country, two thousand years ago; robbers on land, and pirates at sea. Such was their sole business. The men performed no useful labor. Their useful labor was all performed by their women and their slaves. They themselves, as history tells us, scorned to labor for anything they could take by force. They came into England on their usual errand. They seized the country by military power, [9] and reduced the native Britons to slavery. And they have maintained this character ever since. The Normans were equally robbers. The real government of England, the actual ruling power, for more than a thousand years, has been a mere band of robbers; a mere confederacy of villains. And it is nothing else to-day. They have not only plundered and enslaved the great body of the people of England and Ireland, but, as far as possible, the peoples of all other parts of the globe. They have their chains to-day upon more than two hundred millions of people; and their whole purpose is to extort from them everything that oppression, in every form, is capable of extorting.

Do you imagine that when this band of villains—these enemies of the human race—come to receive their dues, at the hands of two hundred and fifty millions of their victims, justice or mercy will have anything to offer in their behalf?

Sir, To the plundered and starving population of Ireland, you say, in effect, and nearly in these words:

“We, the landlords, have no use for you; we have nothing for you to do; we will not feed you; and you cannot feed yourselves. Why, then, do you stay here? Your only salvation is in emigration; and the sooner you go, the better it will be for yourselves, and for us.”

And you conclude your letter with these words, which are among the vilest that were ever written by human hands:

“Why such people [as those Irish, who dream that they can ever again become the owners of Ireland] are permitted to exist, is a marvel. It is best to try and be philosophical, and reflect that the ways of the Lord are inscrutable, and past finding out; and that possibly they may fulfil some use in the economy of nature so obscure as not to be discernible to mortal eye.”

All this is equivalent to your saying:—

“We have taken from you your country, and all your means of living in it. You have nothing more that we can take; and we therefore wish to have nothing more to do with you. By remaining here, you give us no end of trouble, and bring upon us no end of disgrace. You accuse us of starving you to death, and yet you stay with us. If you do not like us, why will you not go, and leave us alone? We want nothing of you; we hate the very sight of you, and wish to get rid of you. It is “inscrutable” to us why the Almighty “permits people to exist,” who are of no use [10] to us, whose presence is offensive to us, who are forever accusing us of having robbed them of everything they had, and who nevertheless persist in staying with us against our will.”

Sir, It is to be hoped that “the ways of the Lord” may soon be made more intelligible to you; that you may be made to know “why such people” as the Irish “are permitted to exist”; what “use in the economy of nature” they “fulfil”; and even why they are permitted to make you so uncomfortable. Perhaps you may come to know that this world and all its inhabitants were not created with a sole view to your pleasure; that for some good reason, in which neither your ease, your pride, your avarice, nor your ambition was consulted, the Almighty saw fit to create other men, and give them rights equal to your own; that their happiness is quite as important as yours; and that these men, whom you now trample upon with such scorn, may yet be strong enough to teach you, in a rough way, such lessons of humility and justice, as have sometimes been taught to tyrants before, and such as will be very bitter to a man like you. You may, however, have this one consolation—that should you ever have all this knowledge forced upon you, it will assuredly make you a much wiser and better man than you are now. And this knowledge, that will be so beneficial to yourself, will be equally useful to your associates, the queens, princes, dukes, earls, and the like, who now feel and reason as you do.

It is also to be hoped that the time is not distant, when somebody will be glad to emigrate from both England and Ireland. But who are to be the emigrants? This is the vital question. You will remember that, in similar circumstances, in a neighboring nation, the class who, one day, ruled all France, thought they owned all France, and felt that they, and they alone, were France, the next day found it convenient to emigrate; leaving everything behind them, to become the property of those, whom, up to that time, they had trampled under foot. May we not see the same thing in England and Ireland?

Sir, the plundered people of England and Ireland need neither emigration, legislation, mitigation, nor modification. They need, and if they do their duty to themselves and to you, they will have,

[11]

REVOLUTION, RETRIBUTION, RESTITUTION, AND, AS FAR AS POSSIBLE, COMPENSATION.

To All the Oppressed Classes in England, Ireland, and Throughout the British Empire.

The foregoing letter, to the so-called Earl of Dunraven, attempts to show you your true relations to the ruling classes of the British Empire; and also the true and only remedy for the wrongs which their and stors practiced upon your ancestors, and which they themselves are now practicing upon you. Do not imagine that the Parliaments and Courts of oppressors will ever right the wrongs of the oppressed. They exist for no such purpose. Such a thing has never happened, and never will. Take the redress of your own wrongs into your own hands, as you are abundantly able to do, if you are only united, determined, and have clear ideas of your rights, and of what is needful to secure them. Your numbers are so great, in comparison with those of your oppressors, as to put their lives and their property wholly in your power, if you so will it. They have no thought of doing you justice. They have no purpose but to keep so many of you in poverty and servitude as they can make serviceable to themselves, and drive the rest of you out of the country by starvation. And they will do this, as they have heretofore done it, unless you yourselves put an end to their power. Wipe out, then, these feudal robbers—the whole race of kings, and queens, and nobles, and all their accomplices in every grade of life, and take possession of all the spoils which they and their predecessors have wrung from you and your ancestors. Put an end to their Parliaments and Courts. Blot out forever their statute books. They contain little or nothing else than the records of their villainies. Free England and Ireland, and thus all the rest of the empire, of the tyrants and robbers that are plundering, enslaving, and crushing, and starving you.

T.33 Natural Law; or the Science of Justice (1882).↩

Title

[33.] Natural Law; or the Science of Justice: A Treatise on Natural Law, Natural Justice, Natural Rights, Natural Liberty, and Natural Society; showing that all Legislation whatsoever is an Absurdity, a Usurpation, and a Crime. Part First. (Boston: A. Williams & Co., 1882).

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CONTENTS OF PART FIRST.

- CHAPTER I.—The Science of Justice, 5

- CHAPTER II.—The Science of Justice [Continued]. 11

- CHAPTER III.—Natural Law Contrasted with Legislation, 16

[5]

NATURAL LAW.

PART FIRST.

CHAPTER I.: THE SCIENCE OF JUSTICE.

Section I.

The science of mine and thine—the science of justice—is the science of all human rights; of all a man’s rights of person and property; of all his rights to life, liberty, and the pursuit of happiness.

It is the science which alone can tell any man what he can, and cannot, do; what he can, and cannot, have; what he can, and cannot, say, without infringing the rights of any other person.

It is the science of peace; and the only science of peace; since it is the science which alone can tell us on what conditions mankind can live in peace, or ought to live in peace, with each other.

These conditions are simply these: viz., first, that each man shall do, towards every other, all that justice requires him to do; as, for example, that he shall pay his debts, that he shall return borrowed or stolen property to its owner, and that he shall make reparation for any injury he may have done to the person or property of another.

The second condition is, that each man shall abstain from doing, to another, anything which justice forbids him to do; as, [6] for example, that he shall abstain from committing theft, robbery arson, murder, or any other crime against the person or property of another.

So long as these conditions are fulfilled, men are at peace, and ought to remain at peace, with each other. But when either of these conditions is violated, men are at war. And they must necessarily remain at war until justice is re-established.

Through all time, so far as history informs us, wherever mankind have attempted to live in peace with each other, both the natural instincts, and the collective wisdom of the human race, have acknowledged and prescribed, as an indispensable condition, obedience to this one only universal obligation: viz., that each should live honestly towards every other.

The ancient maxim makes the sum of a man’s legal duty to his fellow men to be simply this: “To live honestly, to hurt no one, to give to every one his due.”

This entire maxim is really expressed in the single words, to live honestly; since to live honestly is to hurt no one, and give to every one his due.

Section II.

Man, no doubt, owes many other moral duties to his fellow men; such as to feed the hungry, clothe the naked, shelter the homeless, care for the sick, protect the defenceless, assist the weak, and enlighten the ignorant. But these are simply moral duties, of which each man must be his own judge, in each particular case, as to whether, and how, and how far, he can, or will, perform them. But of his legal duty—that is, of his duty to live honestly towards his fellow men—his fellow men not only may judge, but, for their own protection, must judge. And, if need be, they may rightfully compel him to perform it. They may do this, acting singly, or in concert. They may do it on the instant, as the necessity arises, or deliberately and systematically, if they prefer to do so, and the exigency will admit of it.

[7]

Section III.

Although it is the right of anybody and everybody—of any one man, or set of men, no less than another—to repel injustice, and compel justice, for themselves, and for all who may be wronged, yet to avoid the errors that are liable to result from haste and passion, and that everybody, who desires it, may rest secure in the assurance of protection, without a resort to force, it is evidently desirable that men should associate, so far as they freely and voluntarily can do so, for the maintenance of justice among themselves, and for mutual protection against other wrongdoers. It is also in the highest degree desirable that they should agree upon some plan or system of judicial proceedings, which, in the trial of causes, should secure caution, deliberation, thorough investigation, and, as far as possible, freedom from every influence but the simple desire to do justice.

Yet such associations can be rightful and desirable only in so far as they are purely voluntary. No man can rightfully be coerced into joining one, or supporting one, against his will. His own interest, his own judgment, and his own conscience alone must determine whether he will join this association, or that; or whether he will join any. If he chooses to depend, for the protection of his own rights, solely upon himself, and upon such voluntary assistance as other persons may freely offer to him when the necessity for it arises, he has a perfect right to do so. And this course would be a reasonably safe one for him to follow, so long as he himself should manifest the ordinary readiness of mankind, in like cases, to go to the assistance and defence of injured persons; and should also himself “live honestly, hurt no one, and give to every one his due.” For such a man is reasonably sure of always having friends and defenders enough in case of need, whether he shall have joined any association, or not.

Certainly no man can rightfully be required to join, or support, an association whose protection he does not desire. Nor can any man be reasonably or rightfully expected to join, or support, any association whose plans, or method of proceeding, he does not [8] approve, as likely to accomplish its professed purpose of maintaining justice, and at the same time itself avoid doing injustice. To join, or support, one that would, in his opinion, be inefficient, would be absurd. To join or support one that, in his opinion, would itself do injustice, would be criminal. He must, therefore, be left at the same liberty to join, or not to join, an association for this purpose, as for any other, according as his own interest, discretion, or conscience shall dictate.

An association for mutual protection against injustice is like an association for mutual protection against fire or shipwreck. And there is no more right or reason in compelling any man to join or support one of these associations, against his will, his judgment, or his conscience, than there is in compelling him to join or support any other, whose benefits (if it offer any) he does not want, or whose purposes or methods he does not approve.

Section IV.

No objection can be made to these voluntary associations upon the ground that they would lack that knowledge of justice, as a science, which would be necessary to enable them to maintain justice, and themselves avoid doing injustice. Honesty, justice, natural law, is usually a very plain and simple matter, easily understood by common minds. Those who desire to know what it is, in any particular case, seldom have to go far to find it. It is true, it must be learned, like any other science. But it is also true that it is very easily learned. Although as illimitable in its applications as the infinite relations and dealings of men with each other, it is, nevertheless, made up of a few simple elementary principles, of the truth and justice of which every ordinary mind has an almost intuitive perception. And almost all men have the same perceptions of what constitutes justice, or of what justice requires, when they understand alike the facts from which their inferences are to be drawn.

Men living in contact with each other, and having intercourse together, cannot avoid learning natural law, to a very great extent, [9] even if they would. The dealings of men with men, their separate possessions and their individual wants, and the disposition of every man to demand, and insist upon, whatever he believes to be his due, and to resent and resist all invasions of what he believes to be his rights, are continually forcing upon their minds the questions, Is this act just? or is it unjust? Is this thing mine? or is it his? And these are questions of natural law; questions which, in regard to the great mass of cases, are answered alike by the human mind everywhere.*

Children learn the fundamental principles of natural law at a very early age. Thus they very early understand that one child must not, without just cause, strike, or otherwise hurt, another; that one child must not assume any arbitrary control or domination over another; that one child must not, either by force, deceit, or stealth, obtain possession of anything that belongs to another; that if one child commits any of these wrongs against another, it is not only the right of the injured child to resist, and, if need be, punish the wrongdoer, and compel him to make reparation, but that it is also the right, and the moral duty, of all other children, and all other persons, to assist the injured party in defending his rights, and redressing his wrongs. These are fundamental principles of natural law, which govern the most important transactions of man with man. Yet children learn them earlier than they learn that three and three are six, or five and five ten. Their childish plays, even, could not be carried on without a constant regard to them; and it is equally impossible for persons of any age to live together in peace on any other conditions.

[10]

It would be no extravagance to say that, in most cases, if not in all, mankind at large, young and old, learn this natural law long before they have learned the meanings of the words by which we describe it. In truth, it would be impossible to make them understand the real meanings of the words, if they did not first understand the nature of the thing itself. To make them under stand the meanings of the words justice and injustice, before knowing the nature of the things themselves, would be as impossible as it would be to make them understand the meanings of the words heat and cold, wet and dry, light and darkness, white and black, one and two, before knowing the nature of the things themselves. Men necessarily must know sentiments and ideas, no less than material things, before they can know the meanings of the words by which we describe them.

[11]

CHAPTER II.: THE SCIENCE OF JUSTICE (Continued)

Section I.

If justice be not a natural principle, it is no principle at all. If it be not a natural principle, there is no such thing as justice. If it be not a natural principle, all that men have ever said or written about it, from time immemorial, has been said and written about that which had no existence. If it be not a natural principle, all the appeals for justice that have ever been heard, and all the struggles for justice that have ever been witnessed, have been appeals and struggles for a mere fantasy, a vagary of the imagination, and not for a reality.

If justice be not a natural principle, then there is no such thing as injustice; and all the crimes of which the world has been the scene, have been no crimes at all; but only simple events, like the falling of the rain, or the setting of the sun; events of which the victims had no more reason to complain than they had to complain of the running of the streams, or the growth of vegetation.

If justice be not a natural principle, governments (so-called) have no more right or reason to take cognizance of it, or to pretend or profess to take cognizance of it, than they have to take cognizance, or to pretend or profess to take cognizance, of any other nonentity; and all their professions of establishing justice, or of maintaining justice, or of regarding justice, are simply the mere gibberish of fools, or the frauds of imposters.

But if justice be a natural principle, then it is necessarily an immutable one; and can no more be changed—by any power inferior to that which established it—than can the law of gravitation, the laws of light, the principles of mathematics, or any other natural law or principle whatever; and all attempts or assumptions, on the part of any man or body of men—whether calling themselves governments, or by any other name—to set up their [12] own commands, wills, pleasure, or discretion, in the place of justice, as a rule of conduct for any human being, are as much an absurdity, an usurpation, and a tyranny, as would be their attempts to set up their own commands, wills, pleasure, or discretion in the place of any and all the physical, mental, and moral laws of the universe.

Section II.

If there be any such principle as justice, it is, of necessity, a natural principle; and, as such, it is a matter of science, to be learned and applied like any other science. And to talk of either adding to, or taking from, it, by legislation, is just as false, absurd, and ridiculous as it would be to talk of adding to, or taking from, mathematics, chemistry, or any other science, by legislation.

Section III.

If there be in nature such a principle as justice, nothing can be added to, or taken from, its supreme authority by all the legislation of which the entire human race united are capable. And all the attempts of the human race, or of any portion of it, to add to, or take from, the supreme authority of justice, in any case whatever, is of no more obligation upon any single human being than is the idle wind.

Section IV.

If there be such a principle as justice, or natural law, it is the principle, or law, that tells us what rights were given to every human being at his birth; what rights are, therefore, inherent in him as a human being, necessarily remain with him during life; and, however capable of being trampled upon, are incapable of being blotted out, extinguished, annihilated, or separated or eliminated from his nature as a human being, or deprived of their inherent authority or obligation.

[13]

On the other hand, if there be no such principle as justice, or natural law, then every human being came into the world utterly destitute of rights; and coming into the world destitute of rights, he must necessarily forever remain so. For if no one brings any rights with him into the world, clearly no one can ever have any rights of his own, or give any to another. And the consequence would be that mankind could never have any rights; and for them to talk of any such things as their rights, would be to talk of things that never had, never will have, and never can have an existence.

Section V.

If there be such a natural principle as justice, it is necessarily the highest, and consequently the only and universal, law for all those matters to which it is naturally applicable. And, consequently, all human legislation is simply and always an assumption of authority and dominion, where no right of authority or dominion exists. It is, therefore, simply and always an intrusion, an absurdity, an usurpation, and a crime.

On the other hand, if there be no such natural principle as justice, there can be no such thing as injustice. If there be no such natural principle as honesty, there can be no such thing as dishonesty; and no possible act of either force or fraud, committed by one man against the person or property of another, can be said to be unjust or dishonest; or be complained of, or prohibited, or punished as such. In short, if there be no such principle as justice, there can be no such acts as crimes; and all the professions of governments, so called, that they exist, either in whole or in part, for the punishment or prevention of crimes, are professions that they exist for the punishment or prevention of what never existed, nor ever can exist. Such professions are therefore confessions that, so far as crimes are concerned, governments have no occasion to exist; that there is nothing for them to do, and that there is nothing that they can do. They are confessions that the governments exist for the punishment and prevention of acts that are, in their nature, simple impossibilities.

[14]

Section VI.

If there be in nature such a principle as justice, such a principle as honesty, such principles as we describe by the words mine and thine, such principles as men’s natural rights of person and property, then we have an immutable and universal law; a law that we can learn, as we learn any other science; a law that is paramount to, and excludes, every thing that conflicts with it; a law that tells us what is just and what is unjust, what is honest and what is dishonest, what things are mine and what things are thine, what are my rights of person and property and what are your rights of person and property, and where is the boundary between each and all of my rights of person and property and each and all of your rights of person and property. And this law is the paramount law, and the same law, over all the world, at all times, and for all peoples; and will be the same paramount and only law, at all times, and for all peoples, so long as man shall live upon the earth.

But if, on the other hand, there be in nature no such principle as justice, no such principle as honesty, no such principle as men’s natural rights of person or property, then all such words as justice and injustice, honesty and dishonesty, all such words as mine and thine, all words that signify that one thing is one man’s property and that another thing is another man’s property, all words that are used to describe men’s natural rights of person or property, all such words as are used to describe injuries and crimes, should be struck out of all human languages as having no meanings; and it should be declared, at once and forever, that the greatest force and the greatest frauds, for the time being, are the supreme and only laws for governing the relations of men with each other; and that, from henceforth, all persons and combinations of persons—those that call themselves governments, as well as all others—are to be left free to practice upon each other all the force, and all the fraud, of which they are capable.

[15]

Section VII.

If there be no such science as justice, there can be no science of government; and all the rapacity and violence, by which, in all ages and nations, a few confederated villains have obtained the mastery over the rest of mankind, reduced them to poverty and slavery, and established what they called governments to keep them in subjection, have been as legitimate examples of government as any that the world is ever to see.

Section VIII.

If there be in nature such a principle as justice, it is necessarily the only political principle there ever was, or ever will be. All the other so-called political principles, which men are in the habit of inventing, are not principles at all. They are either the mere conceits of simpletons, who imagine they have discovered something better than truth, and justice, and universal law; or they are mere devices and pretences, to which selfish and knavish men resort as means to get fame, and power, and money.

[16]

CHAPTER III.: NATURAL LAW CONTRASTED WITH LEGISLATION.

Section I.

Natural law, natural justice, being a principle that is naturally applicable and adequate to the rightful settlement of every possible controversy that can arise among men; being, too, the only standard by which any controversy whatever, between man and man, can be rightfully settled; being a principle whose protection every man demands for himself, whether he is willing to accord it to others, or not; being also an immutable principle, one that is always and everywhere the same, in all ages and nations; being self-evidently necessary in all times and places; being so entirely impartial and equitable towards all; so indispensable to the peace of mankind everywhere; so vital to the safety and welfare of every human being; being, too, so easily learned, so generally known, and so easily maintained by such voluntary associations as all honest men can readily and rightfully form for that purpose—being such a principle as this, these questions arise, viz.: Why is it that it does not universally, or well nigh universally, prevail? Why is it that it has not, ages ago, been established throughout the world as the one only law that any man, or all men, could rightfully be compelled to obey? Why is it that any human being ever conceived that anything so self-evidently superfluous, false, absurd, and atrocious as all legislation necessarily must be, could be of any use to mankind, or have any place in human affairs?

Section II.

The answer is, that through all historic times, wherever any people have advanced beyond the savage state, and have learned to increase their means of subsistence by the cultivation of the soil, a greater or less number of them have associated and organized themselves as robbers, to plunder and enslave all others, [17] who had either accumulated any property that could be seized, or had shown, by their labor, that they could be made to contribute to the support or pleasure of those who should enslave them.

These bands of robbers, small in number at first, have increased their power by uniting with each other, inventing warlike weapons, disciplining themselves, and perfecting their organizations as military forces, and dividing their plunder (including their captives) among themselves, either in such proportions as have been previously agreed on, or in such as their leaders (always desirous to increase the number of their followers) should prescribe.

The success of these bands of robbers was an easy thing, for the reason that those whom they plundered and enslaved were comparatively defenceless; being scattered thinly over the country; engaged wholly in trying, by rude implements and heavy labor, to extort a subsistence from the soil; having no weapons of war, other than sticks and stones; having no military discipline or organization, and no means of concentrating their forces, or acting in concert, when suddenly attacked. Under these circumstances, the only alternative left them for saving even their lives, or the lives of their families, was to yield up not only the crops they had gathered, and the lands they had cultivated, but themselves and their families also as slaves.

Thenceforth their fate was, as slaves, to cultivate for others the lands they had before cultivated for themselves. Being driven constantly to their labor, wealth slowly increased; but all went into the hands of their tyrants.

These tyrants, living solely on plunder, and on the labor of their slaves, and applying all their energies to the seizure of still more plunder, and the enslavement of still other defenceless persons; increasing, too, their numbers, perfecting their organizations, and multiplying their weapons of war, they extend their conquests until, in order to hold what they have already got, it becomes necessary for them to act systematically, and co operate with each other in holding their slaves in subjection.

But all this they can do only by establishing what they call a government, and making what they call laws.

[18]

All the great governments of the world—those now existing, as well as those that have passed away—have been of this character. They have been mere bands of robbers, who have associated for purposes of plunder, conquest, and the enslavement of their fellow men. And their laws, as they have called them, have been only such agreements as they have found it necessary to enter into, in order to maintain their organizations, and act together in plundering and enslaving others, and in securing to each his agreed share of the spoils.

All these laws have had no more real obligation than have the agreements which brigands, bandits, and pirates find it necessary to enter into with each other, for the more successful accomplishment of their crimes, and the more peaceable division of their spoils.

Thus substantially all the legislation of the world has had its origin in the desires of one class of persons to plunder and enslave others, and hold them as property.

Section III.

In process of time, the robber, or slave holding, class—who had seized all the lands, and held all the means of creating wealth—began to discover that the easiest mode of managing their slaves, and making them profitable, was not for each slaveholder to hold his specified number of slaves, as he had done before, and as he would hold so many cattle, but to give them so much liberty as would throw upon themselves (the slaves) the responsibility of their own subsistence, and yet compel them to sell their labor to the land-holding class—their former owners—for just what the latter might choose to give them.

Of course, these liberated slaves, as some have erroneously called them, having no lands, or other property, and no means of obtaining an independent subsistence, had no alternative—to save themselves from starvation—but to sell their labor to the landholders, in exchange only for the coarsest necessaries of life; not always for so much even as that.

[19]

These liberated slaves, as they were called, were now scarcely less slaves than they were before. Their means of subsistence were perhaps even more precarious than when each had his own owner, who had an interest to preserve his life. They were liable, at the caprice or interest of the land-holders, to be thrown out of home, employment, and the opportunity of even earning a subsistence by their labor. They were, therefore, in large numbers, driven to the necessity of begging, stealing, or starving; and became, of course, dangerous to the property and quiet of their late masters.

The consequence was, that these late owners found it necessary, for their own safety and the safety of their property, to organize themselves more perfectly as a government, and make laws for keeping these dangerous people in subjection; that is, laws fixing the prices at which they should be compelled to labor, and also prescribing fearful punishments, even death itself, for such thefts and trespasses as they were driven to commit, as their only means of saving themselves from starvation.

These laws have continued in force for hundreds, and, in some countries, for thousands of years; and are in force to-day, in greater or less severity, in nearly all the countries on the globe.

The purpose and effect of these laws have been to maintain, in the hands of the robber, or slave holding class, a monopoly of all lands, and, as far as possible, of all other means of creating wealth; and thus to keep the great body of laborers in such a state of poverty and dependence, as would compel them to sell their labor to their tyrants for the lowest prices at which life could be sustained.

The result of all this is, that the little wealth there is in the world is all in the hands of a few—that is, in the hands of the law-making, slave-holding class; who are now as much slave-holders in spirit as they ever were, but who accomplish their purposes by means of the laws they make for keeping the laborers in subjection and dependence, instead of each one’s owning his individual slaves as so many chattels.

[20]

Thus the whole business of legislation, which has now grown to such gigantic proportions, had its origin in the conspiracies, which have always existed among the few, for the purpose of holding the many in subjection, and extorting from them their labor, and all the profits of their labor.

And the real motives and spirit which lie at the foundation of all legislation—notwithstanding all the pretences and disguises by which they attempt to hide themselves—are the same to-day as they always have been. The whole purpose of this legislation is simply to keep one class of men in subordination and servitude to another.

Section IV.

What, then, is legislation? It is an assumption by one man, or body of men, of absolute, irresponsible dominion over all other men whom they can subject to their power. It is the assumption by one man, or body of men, of a right to subject all other men to their will and their service. It is the assumption by one man, or body of men, of a right to abolish outright all the natural rights, all the natural liberty of all other men; to make all other men their slaves; to arbitrarily dictate to all other men what they may, and may not, do; what they may, and may not, have; what they may, and may not, be. It is, in short, the assumption of a right to banish the principle of human rights, the principle of justice itself, from off the earth, and set up their own personal will, pleasure, and interest in its place. All this, and nothing less, is involved in the very idea that there can be any such thing as human legislation that is obligatory upon those upon whom it is imposed.

Endnotes

*

Sir William Jones, an English judge in India, and one of the most learned judges that ever lived, learned in Asiatic as well as European law, says: “It is pleasing to remark the similarity, or, rather, the identity, of those conclusions which pure, unbiassed reason, in all ages and nations, seldom fails to draw, in such juridical inquiries as are not fettered and manacled by positive institutions.”—Jones on Bailments, 133.

He means here to say that, when no law his been made in violation of justice, judicial tribunals, “in all ages and nations,” have “seldom” failed to agree as to what justice is.

T.34 A Letter to Thomas F. Bayard: Challenging his Right - and that of all the Other Socalled Senators and Representatives in Congress - to Exercise any Legislative Power whatever over the People of the United States (1882).↩

Title

[34.] A Letter to Thomas F. Bayard: Challenging his Right - and that of all the Other Socalled Senators and Representatives in Congress - to Exercise any Legislative Power whatever over the People of the United States (Boston: Published by the Author, 1882).

- also online </titles/2232>.

Text

LETTER

To Thomas F. Bayard, of Delaware:

Sir,—

I have read your letter to Rev. Lyman Abbott, in which you express the opinion that it is at least possible for a man to be a legislator, (under the Constitution of the United States,) and yet be an honest man.

This proposition implies that you hold it to be at least possible that some four hundred men should, by some process or other, become invested with the right to make laws of their own—that is, laws wholly of their own device, and therefore necessarily distinct from the law of nature, or the principles of natural justice; and that these laws of their own making shall be really and truly obligatory upon the people of the United States; and that, therefore, the people may rightfully be compelled to obey them.

All this implies that you are of the opinion that the Congress of the United States, of which you are a member, has, by some process or other, become possessed of some right of arbitrary dominion over the people of the United States; which right of arbitrary dominion is not given by, and is, therefore, necessarily in conflict with, the law of nature, the principles of natural justice, and the natural rights of men, as individuals. All this is necessarily implied in the idea that the Congress now possesses any right whatever to make any laws whatever, of its own device—that is, any laws that shall be either more, less, or other than that natural law, which it can neither make, unmake, nor alter—and cause them to be enforced upon the people of the United States, or any of them, against their will.

You assume that the right of arbitrary dominion—that is, [4] the right of making laws of their own device, and compelling obedience to them—is a “trust” that has been delegated to those who now exercise that power. You call it “the trust of public power.”

But, Sir, you are mistaken in supposing that any such power has ever been delegated, or ever can be delegated, by any body, to any body.

Any such delegation of power is naturally impossible, for these reasons, viz:—

1. No man can delegate, or give to another, any right of arbitrary dominion over himself; for that would be giving himself away as a slave. And this no one can do. Any contract to do so is necessarily an absurd one, and has no validity. To call such a contract a “Constitution,” or by any other high-sounding name, does not alter its character as an absurd and void contract.

2. No man can delegate, or give to another, any right of arbitrary dominion over a third person; for that would imply a right in the first person, not only to make the third person his slave, but also a right to dispose of him as a slave to still other persons. Any contract to do this is necessarily a criminal one, and therefore invalid. To call such a contract a “Constitution” does not at all lessen its criminality, or add to its validity.

These facts, that no man can delegate, or give away, his own natural right to liberty, nor any other man’s natural right to liberty, prove that he can delegate no right of arbitrary dominion whatever—or, what is the same thing, no legislative power whatever—over himself or any body else, to any man, or body of men.

This impossibility of any man’s delegating any legislative power whatever necessarily results from the fact, that the law of nature has drawn the line, and the only line—and that, too, [5] a line that can never be effaced nor removed—between each man’s own inherent and inalienable rights of person and property, and each and every other man’s inherent and inalienable rights of person and property. It, therefore, necessarily fixes the unalterable limits, within which every man may rightfully seek his own happiness, in his own way, free from all responsibility to, or interference by, his fellow men, or any of them.

All this pretended delegation of legislative power—that is, of a power, on the part of the legislators, so-called, to make any laws of their own device, distinct from the law of nature—is therefore an entire falsehood; a falsehood, whose only purpose is to cover and hide a pure usurpation, by one body of men, of arbitrary dominion over other men.

That this legislative power, or power of arbitrary dominion, is a pure usurpation, on the part of those who now exercise it, and not “a trust” delegated to them, is still further proved by the fact that the only delegation of power, that is even professed or pretended to be made, is made secretly—that is, by secret ballot—and not in any open and authentic manner; and therefore not by any men, or body of men, who make themselves personally responsible, as principals, for the acts of those to whom they profess to delegate the power.

All this pretended delegation of power having been made secretly—that is, only by secret ballot—not a single one of all the legislators, so-called, who profess to be exercising only a delegated power, has himself any legal knowledge, or can offer any legal proof, as to who the particular individuals were, who delegated it to him. And having no power to identify the individuals who professed to delegate the power to him, he cannot show any legal proof that any body ever even attempted or pretended to delegate it to him.

Plainly a man, who exercises any arbitrary dominion over other men, and who claims to be exercising only a delegated power, but cannot show who his principals are, nor, consequently, [6] prove that he has any principals, must be presumed, both in law and reason, to have no principals; and therefore to be exercising no power but his own. And having, of right, no such power of his own, he is, both in law and reason, a naked usurper.

Sir, a secret ballot makes a secret government; and a secret government is a government by conspiracy; in which the people at large can have no rights. And that is the only government we now have. It is the government of which you are a voluntary member, and supporter, and yet you claim to be an honest man. If you are an honest man, is not your honesty that of a thoughtless, ignorant man, who merely drifts with the current, instead of exercising any judgment of his own?

For still another reason, all legislators, so-called, under the Constitution of the United States, are exercising simply an arbitrary and irresponsible dominion of their own; and not any authority that has been delegated, or pretended to have been delegated, to them. And that reason is, that the Constitution itself (Art. 1, Sec. 6) prescribes that:—

“For any speech or debate [or vote] in either house, they [the Senators and Representatives] shall not be questioned [held to any legal responsibility] in any other place.”

This provision makes the legislators constitutionally irresponsible to anybody; either to those on whom they exercise their power, or to those who may have, either openly or secretly, attempted or pretended to delegate power to them. And men, who are legally responsible to nobody for their acts, cannot truly be said to be the agents of any body, or to be exercising any power but their own: for all real agents are necessarily responsible both to those on whom they act, and to those for whom they act.

To say that the people of this country ever have bound, or ever could bind, themselves by any contract whatever—the [7] Constitution, or any other—to thus give away all their natural rights of property, liberty, and life, into the hands of a few men—a mere conclave—and that they should make it a part of the contract itself that these few men should be held legally irresponsible for the disposal they should make of those rights, is an utter absurdity. It is to say that they have bound themselves, and that they could bind themselves, by an utterly idiotic and suicidal contract.

If such a contract had ever been made by one private individual to another, and had been signed, sealed, witnessed, acknowledged, and delivered, with all possible legal formalities, no decent court on earth—certainly none in this country—would have regarded it, for a moment, as conveying any right, or delegating any power, or as having the slightest legal validity, or obligation.

For all the reasons now given, and for still others that might be given, the legislative power now exercised by Congress, is, in both law and reason, a purely personal, arbitrary, irresponsible, usurped dominion on the part of the legislators themselves, and not a power delegated to them by anybody.

Yet under the pretence that this instrument gives them the right of an arbitrary and irresponsible dominion over the whole people of the United States, Congress has now gone on, for ninety years and more, filling great volumes with laws of their own device, which the people at large have never read, nor even seen, nor ever will read or see; and of whose legal meanings it is morally impossible that they should ever know any thing. Congress has never dared to require the people even to read these laws. Had it done so, the oppression would have been an intolerable one; and the people, rather than endure it, would have either rebelled, and overthrown the government, or would have fled the country. Yet these laws, which Congress has not dared to require the people even to read, it has compelled them, at the point of the bayonet, to obey.

[8]

And this moral, and legal, and political monstrosity is the kind of government which Congress claims that the Constitution authorizes it to impose upon the people.

Sir, can you say that such an arbitrary and irresponsible dominion as this, over the properties, liberties, and lives of fifty millions of people—or even over the property, liberty, or life of any one of those fifty millions—can be justified on any reason whatever? If not, with what color of truth can you say that you yourself, or anybody else, can act as a legislator, under the Constitution of the United States, and yet be an honest man?

To say that the arbitrary and irresponsible dominion, that is exercised by Congress, has been delegated to it by the Constitution, and not solely by the secret ballots of the voters for the time being, is the height of absurdity; for what is the Constitution? It is, at best, a writing that was drawn up more than ninety years ago; was assented to at the time only by a small number of men; generally those few white male adults who had prescribed amounts of property; probably not more than two hundred thousand in all; or one in twenty of the whole population.

Those men have been long since dead. They never had any right of arbitrary dominion over even their contemporaries; and they never had any over us. Their wills or wishes have no more rightful authority over us, than have the wills or wishes of men who lived before the flood. They never personally signed, sealed, acknowledged, or delivered, or dared to sign, seal, acknowledge, or deliver, the instrument which they imposed upon the country as law. They never, in any open and authentic manner, bound even themselves to obey it, or made themselves personally responsible for the acts of their so-called agents under it. They had no natural right to impose it, as law, upon a single human being. The whole proceeding was a pure usurpation.

[9]

In practice, the Constitution has been an utter fraud from the beginning. Professing to have been “ordained and established” by “We, the people of the United States,” it has never been submitted to them, as individuals, for their voluntary acceptance or rejection. They have never been asked to sign, seal, acknowledge, or deliver it, as their free act and deed. They have never signed, sealed, acknowledged, or delivered it, or promised, or laid themselves under any kind of obligation, to obey it. Very few of them have ever read, or even seen it; or ever will read or see it. Of its legal meaning (if it can be said to have any) they really know nothing; and never did, nor ever will, know any thing.

Why is it, Sir, that such an instrument as the Constitution, for which nobody has been responsible, and of which few persons have ever known any thing, has been suffered to stand, for the last ninety years, and to be used for such audacious and criminal purposes? It is solely because it has been sustained by the same kind of conspiracy as that by which it was established; that is, by the wealth and the power of those few who were to profit by the arbitrary dominion it was assumed to give them over others. While the poor, the weak, and the ignorant, who were to be cheated, plundered, and enslaved by it, have been told, and some of them doubtless made to believe, that it is a sacred instrument, designed for the preservation of their rights.

These cheated, plundered, and enslaved persons have been made to feel, if not to believe, that the Constitution had such miraculous power, that it could authorize the majority (or even a plurality) of the male adults, for the time being—a majority numbering at this time, say, five millions in all—to exercise, through their agents, secretly appointed, an arbitrary and irresponsible dominion over the properties, liberties, and lives of the whole fifty millions; and that these fifty millions have no rightful alternative but to submit all their rights to this arbitrary [10] dominion, or suffer such confiscation, imprisonment, or death as this secretly appointed, irresponsible cabal, of so-called legislators, should see fit to resort to for the maintenance of its power.

As might have been expected, and as was, to a large degree, at least, intended, this Constitution has been used from the beginning by ambitious, rapacious, and unprincipled men, to enable them to maintain, at the point of the bayonet, an arbitrary and irresponsible dominion over those who were too ignorant and too weak to protect themselves against the conspirators who had thus combined to deceive, plunder, and enslave them.

Do you really think, Sir, that such a constitution as this can avail to justify those who, like yourself, are engaged in enforcing it? Is it not plain, rather, that the members of Congress, as a legislative body, whether they are conscious of it, or not, are, in reality, a mere cabal of swindlers, usurpers, tyrants, and robbers? Is it not plain that they are stupendous blockheads, if they imagine that they are anything else than such a cabal? or that their so-called laws impose the least obligation upon anybody?

If you have never before looked at this matter in this light, I ask you to do so now. And in the hope to aid you in doing so candidly, and to some useful purpose, I take the liberty to mail for you a pamphlet entitled:

“Natural Law; or the Science of Justice; a Treatise on Natural Law, Natural Justice, Natural Rights, Natural Liberty, and Natural Society; Showing That All Legislation Whatsoever Is an Absurdity, A Usurpation, and a Crime. Part I.

In this pamphlet, I have endeavored to controvert distinctly the proposition that, by any possible process whatever, any man, or body of men, can become possessed of any right of arbitrary dominion over other men, or other men’s property; [11] or, consequently, any right whatever to make any law whatever, of their own—distinct from the law of nature—and compel any other men to obey it.

I trust I need not suspect you, as a legislator under the Constitution, and claiming to be an honest man, of any desire to evade the issue presented in this pamphlet. If you shall see fit to meet it, I hope you will excuse me for suggesting that—to avoid verbiage, and everything indefinite—you give at least a single specimen of a law that either heretofore has been made, or that you conceive it possible for legislators to make—that is, some law of their own device—that either has been, or shall be, really and truly obligatory upon other persons, and which such other persons have been, or may be, rightfully compelled to obey.

If you can either find or devise any such law, I trust you will make it known, that it may be examined, and the question of its obligation be fairly settled in the popular mind.

But if it should happen that you can neither find such a law in the existing statute books of the United States, nor, in your own mind, conceive of such a law as possible under the Constitution, I give you leave to find it, if that be possible, in the constitution or statute book of any other people that now exist, or ever have existed, on the earth.

If, finally, you shall find no such law, anywhere, nor be able to conceive of any such law yourself, I take the liberty to suggest that it is your imperative duty to submit the question to your associate legislators; and, if they can give no light on the subject, that you call upon them to burn all the existing statute books of the United States, and then to go home and content themselves with the exercise of only such rights and powers as nature has given to them in common with the rest of mankind.

LYSANDER SPOONER.

Boston,

May 27, 1882.

T.35 A Letter to Scientists and Inventors, on the Science of Justice, and their Right of Perpetual Property in their Discoveries and Inventions (1884).↩

Title

[35.] A Letter to Scientists and Inventors, on the Science of Justice, and their Right of Perpetual Property in their Discoveries and Inventions (Boston: Cupples, Upham & Co., 1884).

- also online Shorter Works, vol. 2: </titles/2292#lf1531-02_head_052>

Text

LETTER.

A LETTER

TO

SCIENTISTS

and

INVENTORS,

ON

THE SCIENCE OF JUSTICE, AND THEIR RIGHT OF PERPETUAL PROPERTY IN THEIR DISCOVERIES AND INVENTIONS.

By Lysander Spooner.

BOSTON:

CUPPLES, UPHAM & CO.

283 Washington Street.

1884.

[2]

[The author reserves his Copyright in this Pamphlet.]

First edition printed in July, 1884.

Boston, Mass., July, 1884.

[3]

SECTION I.: To Scientists and Inventors:

You are the great producers and diffusers of knowledge and wealth. Your scientific discoveries and mechanical inventions are the great, almost the only, instrumentalities by which the world at large is enlightened or enriched. You, Scientists, explore Nature for her facts and laws, which, violated through ignorance or design, bring upon mankind want, disease, misery, and death; but which, known and accepted as guides, bring to them not only great material wealth, but also life, health, and strength of both body and mind. And you, Inventors, devise and explain to us the application of mechanical forces, by which men’s powers of providing for, and satisfying, their wants and desires, are multiplied a thousand, ten thousand, a hundred thousand fold.

Your discoveries and inventions, the value of which no man can measure, are not, like our material wealth, consumed, or worn out, by use, nor do they decay by time. They are not, like our material wealth, local and limited in their nature; but each and all of them can be diffused all over the globe, and be utilized by all peoples, not only without conflict, but with mutual and universal benefit.

For the want of your discoveries and inventions, mankind, through many thousands of years, have remained savage, barbarous, or, if in any degree civilized, still poverty-stricken, short-lived, feeble, ignorant, superstitious, enslaved in both body and mind. And such is the condition of more than a thousand millions of the world’s people to-day. And such it will remain for [4] thousands of years to come, unless they can have the benefit of such discoveries and inventions as you are making, and offering to them; and such as they would accept and utilize, if their governments did not deprive them of all power to do so.

In spite of all the obstacles which these governments have constantly placed in their way, these discoveries and inventions have, of late years, and in some portions of the world, made progress. And nobody knows so well as yourselves, how much greater this progress would be, if all men of scientific and inventive minds, all over the world, had all the inducements and means that they might have, and ought to have, for prosecuting their investigations and experiments.

Your own rights and interests, and the rights and interests of mankind at large, are identical in this matter. It is your own right, and for your own interest, that you should have all the inducements and means that you honestly can have, for prosecuting your investigations and experiments, and producing all the discoveries and inventions that you are capable of. It is also the right, and for the interests, of mankind at large, that you should have all those inducements and means, because it is only through the greatest number of discoveries and inventions, that mankind are to be most highly enlightened and enriched.

What, then, are these inducements and means, which you need, and have a right to, and which it is the right, and for the interests, of mankind at large, that you should have? They are these:

1. The same right of perpetual property in the products of your brains, that all other men are justly entitled to have in the products of their hands.

2. The same protection, by both civil and criminal law, for the products of your brain labor, that other men are justly entitled to have for the products of their hand labor.

3. The same right of perpetual property in your discoveries and inventions, in all the other countries of the world, as in your own.

4. It is the right, and for the interests, of all past discoverers and inventors, and of their heirs, to recover their natural right of perpetual property in their discoveries and inventions, which has [5] hitherto been denied or withheld by the ignorant and tyrannical governments that have heretofore existed, and now exist, in the world.

5. It is also the right, and for the interests, of mankind at large, that the right of perpetual property, in their discoveries and inventions, should be restored to all past discoverers and inventors, and to their heirs, so far as they can now be ascertained.

6. It is your right to have all the money you need, and honestly can have—that is, all the money that freedom in banking would give you—not only for making your discoveries and inventions, but also for carrying them all over the world, and putting them into actual operation.

7. It is your right, and for your interests, as well as their own, that all mankind, all over the world, should have all the money they need, and honestly can have—that is, all the money that freedom in banking would give them—to enable them to utilize your discoveries and inventions as fast as they are made, and to distribute to consumers all the wealth that your discoveries and inventions will enable them to create.

How are all these propositions to be realized? In other words, how are they all to be established as law, in all the different countries of the world?

The general answer to this question is, that these propositions are all to be established as law, all over the world, by showing their truth and justice to all peoples; and also by showing, not only their adaptation, but their necessity, for promoting the highest enlightenment, and the greatest enrichment, of all the peoples of the earth.

But a more particular answer is needed. And it will now be given, by showing not only the truth and justice of the several propositions themselves, and their adaptation and necessity to produce all that is now claimed for them, but also by showing that scientists and inventors have it in their own power, while promoting their own highest interests, to accomplish the whole work.

[6]

SECTION II.

Before proceeding to the consideration of the preceding propositions, it is your right, and for your interests, to have this one question decided, viz.: Whether your scientific discoveries and mechanical inventions, by which, incomparably beyond all other men, you are enlightening and enriching mankind, are, in their nature, an equally legitimate property, and entitled to the same legal protection, as are the products of men’s manual labor? Or whether that mere pittance of protection, which is allowed to them in a few countries, and not at all in others, is all the reward to which your labors are entitled?

When this question shall be rightly answered, all the other questions must necessarily be rightly answered, too. And this question is really and finally answered by the single fact that knowledge is property.

That knowledge is wealth—and wealth, too, of the greatest value—no man of sense will deny. Why, then, is it not property? And subject to all the laws of property?

Knowledge is property. It is a property that is really acquired only by labor of mind, or body, or both; oftentimes only by great labor of both body and mind. It is also a property that is extensively bought and sold, like other property, in the market.

It is true that a vast amount of knowledge—knowledge, too, of great intrinsic value—is so common, from having been acquired by each one’s own experience and observation, that it bears no price in the market; but that does not affect the principle, that all knowledge, that will bring a price in free and open market, is as legitimate a subject of bargain and sale as is any material commodity whatever.

Even so common and simple a knowledge as that of the alphabet has its market value, and is rightfully bought and sold. The young girl, who knows the alphabet, is rightfully paid for imparting that knowledge to those younger, or less enlightened than herself.

On the other hand, the highest kinds of knowledge—or, at least, what passes for such in this ignorant world—is constantly and openly bought and sold, oftentimes at enormous prices.

[7]

Thus legislators, judges, lawyers, editors, teachers of all kinds, physicians, priests, and soldiers, are continually selling their knowledge—and, perhaps, quite as frequently their ignorance and falsehoods—for money.

Legislators are continually selling such knowledge—or, rather, such ignorance and falsehoods—as these, viz.: That they themselves are rightfully invested with absolute and irresponsible dominion over the property, liberty, and lives of their fellow men; that their discretion, in the exercise of this power, can rightfully be restrained by no natural principles of justice; that their commands are authoritative and final, and the only imperative rule of action for all whom they call their subjects; that resistance to their laws, as they call them, is the greatest of crimes, and may rightfully, and must necessarily, be punished with confiscation, imprisonment, and death. In all ages, the mass of mankind have been compelled to pay, with their property, liberty, and, in vast numbers of cases, with their lives, for such knowledge—or, rather, for such monstrosities, absurdities, and falsehoods—as these.

Under the name of knowledge, judges, lawyers, and editors are constantly affirming, repeating, and reiterating these monstrosities, absurdities, and falsehoods of the legislators; and are taking their pay for so doing, as if they were really selling the most valuable commodities.

Surely it does not lie in the mouths of these legislators, judges, lawyers and editors, who live and flourish by selling such falsehoods as these, to say that the scientific discoveries and mechanical inventions, which are every day demonstrating their power to enlighten, enrich, and liberate all mankind, are not legitimate property, that may rightfully be bought and sold.

The knowledge of the soldier—such as it is—is in great demand. To him who knows how to kill the greatest number of men, in the shortest time, and for the most frivolous or unjust causes, his knowledge is his fortune. Legislators are so constantly dependent upon it for their very existence as legislators, that they pay enormous sums for it—but always out of other people’s money.

[8]

Physicians, in all ages, have been freely selling their knowledge—or, more commonly, their ignorance and falsehoods; and the purchasers have been paying for them with their property, their health, and their lives.

Does it lie in the mouths of these physicians to deny that scientific truths and mechanical inventions are legitimate subjects of property?

Priests have for ages been selling, under the name of knowledge, absurd dogmas and creeds, which they described as sure to carry the believer in them to a future world of eternal and indescribable happiness, and as equally sure to carry all unbelievers in them to a future world of eternal and indescribable woe. And they, in conspiracy with legislators who needed their aid, have compelled the mass of mankind to pay for this so-called knowledge, under the alternatives of imprisonment, torture, and death. But they have never demonstrated the truth of their dogmas. No one of their number has ever gone to the future world, and brought back the information that their so-called knowledge was anything other than ignorance and falsehood.

Does it lie in the mouths of these priests to say that scientific discoveries and mechanical inventions, whose truth and utility are being constantly demonstrated before all the world, are not legitimate subjects of property? or, consequently, of free bargain and sale?

Will the people themselves, whose ancestors, for thousands of years, have been swindled out of their common sense, their property, health, liberty, and lives, by these venders of ignorance and falsehood, under the name of knowledge—and who are now being swindled in the same way themselves—will they deny that such veritable realities as scientific discoveries and mechanical inventions—discoveries and inventions that have demonstrated their power to fill the earth with knowledge, and health, and wealth, and liberty—are legitimate subjects of property, that may freely and rightfully be bought and sold? Will they choose to pay—as they and their ancestors hitherto have done—with their property, health, liberty, and lives, for such ignorance, falsehood, oppression, robbery, and ruin, as have hitherto been dealt out to them, rather [9] than for such health, wealth, truth, justice, and liberty as scientists and inventors offer them?

And, finally, will not scientists and inventors themselves, while establishing their own rights to their own property, give themselves to the work of establishing justice, as a science, in place of the absurdities, the falsehoods, the chicanery, the usurpations, and the arbitrary, irresponsible power of the ambitious, rapacious, and unprincipled men, by whom the world is now ruled, and who make mankind their dupes and their prey?

If they will but do this, the work will soon be accomplished.

SECTION III.

Assuming it now to be settled that your discoveries and inventions are, in their nature, a legitimate property, the first of the propositions before mentioned to be established is this, viz.: That, in truth and justice, scientists and inventors have the same right of perpetual property in the products of their brain labor, that other men have in the products of their hand labor.

This proposition is established by the simple facts that knowledge is property, and is, in its nature, durable, vendible, and transferable; for all property, in things durable, vendible, and transferable, is, in its very nature, perpetual, and a legitimate subject of devise and inheritance. And no formal will or testament is necessary to convey a man’s property, at his decease, to his so-called natural heirs—such as his wife and children—or, in the absence of such, to his nearest blood relations. The facts that, during his life, his moral duty and natural affection prompt him to acquire wealth, and expend it for the support and happiness of these so-called natural heirs, rather than for others whom he does not know, or, knowing, does not love, furnishes a sufficient proof, or at least a sufficient presumption, that, at his death, he desires them to possess the property he leaves behind him; and nothing but the clearest proof to the contrary is allowed to defeat that presumption. And for a government to confiscate, after his death, [10] this property, which he had produced or accumulated for their support or benefit, would be as gross and cruel an act of tyranny and robbery, as it would be to confiscate it during his lifetime. And the common sentiments of mankind have concurred in this opinion. And this principle is plainly as applicable to intellectual, as to material, property. And the fact that this principle has heretofore been wholly, or partially, disregarded in its application to intellectual property, is only a proof of the ignorance, or villainy, of the governments that have ruled the world.

But let us look further into this right of perpetual property.

When a man digs into the earth, and finds, and takes possession of, a diamond, he thereby acquires a supreme right of property in it, against all the world; and this right of property becomes perpetual in his heirs and assigns.

So, also, when a man dives into the sea, and brings up a pearl, he thereby acquires a supreme right of property in it, against all the world; and this right of property becomes perpetual in his heirs and assigns.

This right of perpetual property is the reward that nature offers to those who take upon themselves the labor of discovering her secret wealth, and making it available for man’s use.

By the same rule, when the scientist, in his laboratory, discovers that, in nature, there exists a substance, or a law, that was before unknown, but that may be useful to mankind, he thereby acquires a supreme right of property in that knowledge, against all the world; and he may either use it himself, or sell it, or lend it to others for use, the same as he might rightfully do with any material property. This is the reward that nature offers him for his labor.

And this right of property is as much a perpetual one, as is the right of property in the case of the diamond, or the pearl.

And to deprive him of this right of property after a given number of years, is as much an act of pure usurpation and robbery, as it would be to take from the diamond digger and the pearl diver, the products of their labor, after a given number of years.

So, too, the inventor, who acquires a knowledge of mechanical forces, and then applies and combines them in a manner before [11] unknown, and so as to produce a machine that will perform the labor of a hundred, a thousand, or ten thousand men, thereby acquires a supreme right of property in his invention, and may rightfully hold it against all the world. He may either use it himself, or sell it, or lend it to others for use, at his pleasure. This right of property is, in its nature, a perpetual one in himself, his heirs, and assigns; and to deprive him of it, after a given number of years, is as much an act of usurpation and robbery, as it would be to rob the diamond digger, or the pearl diver, of his property, after a given number of years.

It is for the highest interests of all mankind, that this right of perpetual property, in the scientist and inventor, should be acknowledged and maintained.

It is for the highest interests of all mankind, that each and every man should have a right of perpetual property in the products of his own labor; because it is this right alone that can stimulate every man to the highest exercise of his wealth-producing faculties of both body and mind. And the more a man produces for himself, the more he produces for all other men; for in that division of labor which science and invention give rise to, each man usually consumes but a very small portion of the particular wealth he produces. The surplus he gives to other men in exchange for the various kinds of wealth they produce respectively. The more, therefore, each one produces, the more all finally receive for their own consumption.

How many diamonds would ever have been digged from the earth, or how many pearls would ever have been taken from the sea, if they had all been confiscated in a few years after they had been obtained? How much gold, or silver, or copper, or iron, or any other metal, would ever have been taken out of the earth, for the benefit of mankind, if they had all been confiscated in a few years after they had been mined? How many farms would have ever been reclaimed from the forest, and brought under cultivation, and made to produce food for man, if they had all been confiscated in a few years after they had been made productive? How many comfortable dwellings would ever have been built, if they had all been confiscated soon after they had been made fit for habitation? [12] How many factories would ever have been built, and filled with machinery, for the production of a thousand, or ten thousand, different kinds of wealth, if they had all been confiscated soon after they were fitted for the uses for which they were designed.

The same arguments, both of justice and expediency, which are applicable in favor of the right of perpetual property in material things, are applicable in favor of the same right of perpetual property in all the scientific discoveries and mechanical inventions that the human mind is capable of producing. And it is because no such—nor indeed any other special—right of property has, until recently, been acknowledged, that the world has heretofore been, and, for the most part, still is, so nearly destitute of all the sciences and inventions by which it would otherwise have been enlightened and enriched.

Even in those small portions of the earth in which some encouragement has, of late years, been given to science and invention, we doubtless have very little, almost no, conception of what would be the increased number of discoveries and inventions, if the right of perpetual property in them were acknowledged and protected, in the same manner as is the right of property in material things.

SECTION IV.

The second proposition to be established is this, viz.: That scientists and inventors are justly entitled to have the same protection, by both civil and criminal law, for the products of their brain labor, that other men are justly entitled to have for the products of their hand labor.

The truth and justice of this proposition are too nearly self-evident to need much argument in their support.

If a man’s scientific discoveries and mechanical inventions are as truly his property as are his houses or lands, then it is plain that any trespass upon them is as clearly a crime as is a trespass upon his houses or lands. And there is the same practical necessity [13] for punishing criminally trespasses against a man’s intellectual property, as there is for punishing criminally trespasses against his material property.

What security could any man have for the quiet possession of his house or his farm, if every other man, who coveted them, but had no color of right to them, could be permitted to take possession of, and use them, and make it necessary for the owner to carry on an expensive and protracted civil suit against each one of these trespassers? It is plain that it would cost him more to defend his house and farm than they were worth; and that his right of property in them would be practically destroyed. This argument is just as strong in favor of punishing criminally trespasses upon intellectual property, as it is for punishing criminally trespasses upon material property.

SECTION V.

The third proposition to be established is this: That scientists and inventors should have the same right of perpetual property in their discoveries and inventions, in all the other countries of the world, as in their own.

This proposition, like the preceding one, is too nearly self-evident to need much argument in its support.

The natural, and only real, right of property is the same throughout the world; and it is only the ignorance and tyranny of the different governments of the world, that make the practical right of property different in different countries.

When justice, as a science, shall be established, as the one only law, in all the countries in the world, the right of property in scientific discoveries and mechanical inventions, as well as in material things, will be one and the same all over the world.

[14]

SECTION VI.

The fourth proposition to be established is this, viz: That it is the right, and for the interests, of all past discoverers and inventors (where their patents have expired), and of their heirs, to recover their natural right of perpetual property in their discoveries and inventions, which has hitherto been denied or withheld by the ignorant and tyrannical governments that have hitherto existed, and now exist, in the world.

This proposition, too, like the preceding ones, is too nearly self-evident to require much argument.

Plainly, scientists and inventors have never voluntarily parted with their natural right of property in their discoveries and inventions. They have never forfeited their right to them by crime. Those who have had the benefit of them, and are now using them, have never bought them, or paid for them, or made any kind of contract with the owners for the use of them. The only reason why the authors of them (or their heirs or assigns) are not now in the full enjoyment of their right of property in them, is that governments, in their ignorance or villainy, have refused either to acknowledge or protect the right at all, or to protect it beyond a limited time; and have thus practically licensed all trespassers to make free plunder of what was the rightful private property of the discoverers and inventors.

To this free plunder of their property, the discoverers and inventors have been obliged to submit, for the time being. But their true and natural right of property has not been lost, or affected, thereby. They have the same true and natural right of property in their discoveries and inventions that they ever had. And they have now the same right to demand the recognition and protection of their rights, that other men have to demand the recognition and protection of their rights to their material property.

Where the discoverers and inventors have died, their descendants have the same natural right of inheritance in their discoveries and inventions, as other men’s descendants have in the material property of their ancestors.

[15]

That the immense value of their discoveries and inventions should now unite all scientists and inventors, (whose patents have expired,) and their heirs, in the effort to recover their rights to them, is too plain to need argument.

SECTION VII.

The fifth proposition to be established is this, viz.: That it is the right, and for the interests, of mankind at large, that the right of perpetual property, in their discoveries and inventions, should be restored to all past discoverers and inventors, and to their heirs, so far as they can now be ascertained.

The truth of this proposition rests, in the first place, upon this basis, viz.: That it is only when all men are protected in their natural right of property in the products of their labor, that all men are stimulated to the production of the greatest amount of wealth they are capable of producing, and each and every man is consequently enabled to give the greatest amount of wealth in exchange for the wealth produced by others. It is, therefore, the right, and for the interests, of every man, who produces any kind of wealth for sale, that all other men, who are to buy his wealth, should be enabled to produce as much as possible themselves, and thus be enabled to give as much as possible in exchange for his.

Every man, who believes in men’s natural right of property in the products of their labor, will acknowledge the truth of this principle, as applicable to the future. But perhaps some will be so unwise, as well as dishonest, as to dispute the principle in its application to the past; and will say that the world having once got possession of a vast amount of intellectual property for nothing, it would now be foolish to give it back to its true owners.

There is some difficulty in reasoning with men who do not believe that honesty is the best policy in all cases whatsoever; men who believe in theft and robbery, whenever they are strong enough to practice them with impunity. But inasmuch as there are a great many such men in the world, and inasmuch as they are [16] now, and always have been, the ruling powers of the world—that is, the chief governors of the world—and inasmuch as they are the class who will most powerfully oppose the rights of all scientists and inventors, both past and future, it becomes necessary to show to others, if not to themselves, that this policy is as shortsighted as it is dishonest.

It has always been the policy of these bands of robbers, who have called themselves governments—in fact, it has in reality been the sole objects of their organizations, as governments—to rob all the producers of wealth, whether intellectual or manual laborers, of all the products of their labor, as fast as they were produced; leaving nothing in the hands of the producers that would enable them to produce more, or that would even enable them to produce their daily food, except as the servants, and by the permission, of these tyrants. And this is the reason—and not the want of scientific and inventive faculties—why, after so many thousands of years, there is so little of either science or invention in the world to-day; and why there is so little of any thing, for the mass of mankind, except poverty, ignorance, and slavery.

It is only within a very recent time—say a single century, or a little more—that any governments have secured to either scientists or inventors any really valuable rewards for their labors. And even within that time, they have only offered such mere temporary, and even trivial, rewards, as were thought sufficient to inspire their hopes, and induce them to produce something valuable, of which they could be robbed. And as soon almost as they have produced anything valuable, they have been robbed of it. Such is to-day the state of the laws under those few governments that alone profess to secure to scientists and inventors any rewards at all for their discoveries and inventions. And this state of things is likely to continue, and is almost certain to continue, until scientists and inventors themselves undertake the work of vindicating and establishing their own natural rights of property in their discoveries and inventions.

But the scientists and inventors themselves will see at once that they cannot consistently advocate their own rights to the [17] products of their own labor, in the future, unless they acknowledge and maintain the same rights for all past scientists and inventors, and their heirs, so far as they can now be ascertained. Every admission on their part, that all past scientists and inventors, or their heirs, may rightfully be robbed of their property, would be a practical confession that all future scientists and inventors may also be rightfully robbed of theirs. No future scientist or inventor, therefore, can consistently claim any rights of property for himself, except such as he is willing to accord to all past scientists and inventors.

But, secondly, it would be very bad policy for either present or future scientists or inventors to make any compromise with their enemies, or to attempt to secure any rights, or purchase any favors, for themselves, by repudiating the rights of any past scientists or inventors, or their heirs. In order to establish their own rights, they will need all the influence, and all the financial capital, they can enlist in the enterprise. And the pecuniary value of past discoveries and inventions is so immense, that its power can hardly be overrated.

Estimate—if that be possible—what would be the actual market value of all the scientific discoveries and mechanical inventions now extant (whose paternity can now be established), if the right of property in them was made perpetual, all over the world!

Can any present or future scientist or inventor be so idiotic as to imagine that he is to gain anything for his particular discovery or invention, by denying, or conceding away, the rights of the real owners of all this vast property in past discoveries and inventions? Or that he can vindicate or establish his own rights more easily, without enlisting the aid of all this capital, than he can by making common cause with it?

A scientist or inventor who should seek to curry favor for his own discovery or invention, by consenting to the confiscation of all other men’s discoveries and inventions, would justly be regarded as the criminal confederate of the robbers and tyrants who now confiscate the discoveries and inventions of all other [18] men, whose labors and products are as worthy of protection as his own.

But perhaps these remarks are unnecessary. It is certainly to be hoped, and, I think, reasonably to be expected, that there can be few so foolish, or so unjust, as to consent to the robbery of all past scientists and inventors, as a condition of having their own rights acknowledged.

The study of science tends to make men not only truthful and just, but also far-seeing; and to lift them above all temptation to practice the meannesses and crimes of those who now rule the world by laws designed to rob one class of men for the benefit of another. And scientists and inventors have now such power, and such inducements, as men never had before, to crush out all the petty, temporary, local, selfish, and criminal schemes that now occupy existing governments; and to establish the reign of justice in their stead.

But we are taking too narrow a view of this subject.

It is not true that mankind at large—or more than one third, or perhaps even a fourth, of all mankind—are in practical possession of the scientific discoveries and mechanical inventions that have been made, and are now in use, in the most enlightened parts of the world—say, Western Europe and the United States. What practical knowledge of these discoveries and inventions have the seven or eight hundred millions of Asia, the two hundred millions of Africa, or the fifty or one hundred millions scattered elsewhere on the globe? Or what practical knowledge will they ever have of them, unless the discoveries and inventions themselves are carried to them, and put in use among them, by persons from outside of these destitute countries? And who has any sufficient motive to carry them into, and put them in operation in, these destitute countries, unless it be the owners of the discoveries and inventions themselves?

The peoples of these destitute countries have, therefore, substantially the same motives for paying for the use of all these past discoveries and inventions, as they have for paying for those that are to be made in the future. That motive is to get the practical use of the discoveries and inventions, and to get it at the earliest [19] possible time. Of what importance is the small amount they will have to pay for the use of them, compared with the benefits to be derived from them?*

But, furthermore. The sooner these past discoveries and inventions are carried into the destitute portions of the world, and the better the use of them is paid for there, the sooner the peoples of those countries will be enabled and stimulated to produce discoveries and inventions themselves; and their discoveries and inventions will come back to us, and add to our wealth, in the same way, and, with an immaterial difference, to the same degree, as if made by ourselves.

Now, these vast countries, containing a thousand millions of people, contribute, almost literally, nothing to our wealth, or we to theirs. They are constantly so near to starvation themselves, that they have scarcely anything they can give in exchange for anything we have to offer to them. They do indeed spare us a little tea, rice, indigo, opium, jute, etc., etc. But if they were to give us one really useful invention, it would be worth more to us than all these articles together. And if they were enlightened and enriched—as they would be by our carrying our discoveries and inventions to them, and putting them in practical operation—they would then become scientists and inventors themselves; and the commerce between us, in discoveries and inventions, would be worth millions of times more, both to them and to us, than the present petty commerce in material things.

Still further. The sooner this vast foreign field is opened to our scientists and inventors, the sooner they will be enabled and stimulated to the production of the greatest possible amount of discoveries and inventions for use at home.

And since this foreign field is not at all likely to be soon opened for our scientists and inventors, unless they open it themselves, it would be as impolitic, as it would be dishonest, to deprive all past scientists and inventors, and their heirs, of all motive and [20] all power to carry their discoveries and inventions into the destitute countries, that are perishing for the want of them.

SECTION VIII.

A few words, now, as to the prospective increase of scientific discoveries and mechanical inventions, if their authors’ right of perpetual property in them should be established.

As fast as mankind at large shall become enlightened and enriched by science and invention, and by a knowledge of justice as a science, the oppressions and wars—by which, in all past time, a few men have plundered, starved, enslaved, and butchered so large a portion of their fellow men, and made all progress in knowledge and wealth impossible—will necessarily cease; because the many being enlightened and enriched, the few will then be no longer able to deceive, conspire against, and overpower them, as they hitherto have done. Mankind will, therefore, not only live out their days, and enjoy the fruits of their labor, but they will also have much greater health and strength of both body and mind, and be capable of much greater physical and mental labor than they are now. Each successive generation will also have the benefit of all the scientific discoveries and mechanical inventions, that shall have preceded them, and they will, of course, produce a correspondingly greater number of such discoveries and inventions themselves.

Experience shows that each new discovery and invention generally gives rise to several, oftentimes to many, others. Thus discoveries and inventions will forever go on increasing in geometrical ratio.

But even this is not all. The earth, when cultivated with the aid of such science, implements, and machinery as men are capable of producing, can probably be made to sustain a hundred times its present population. And the increase of population will naturally go on, as men increase their means of subsistence, and [21] cease to starve and destroy each other. And this increase of population will, of itself, naturally bring a corresponding increase of scientific discoveries and mechanical inventions. Who, then, can set any limit to the future progress of mankind in knowledge and wealth?

Under the stimulus of this principle of property, mankind will soon become a very different, an almost wholly different, race of beings from what they now are. They will learn—what so few of them seem now to understand—not only that they have brains, but also what their brains were designed for, and are capable of. When these lessons shall have been learned, the knowledge that will be accumulated in consequence will become the great wealth of the world.

SECTION IX.

It is plainly to be seen, by those who choose to see, that science and invention are bringing, and are destined to bring, all the peoples of the earth together, and show them their power to promote each others’ welfare, and their duty to live together in peace.

The only obstacle this great movement has now to meet, is that presented by ignorant, hostile, and tyrannical governments. It is plain that if all mankind are to live together in peace, and contribute their utmost to each other’s welfare, they must get rid of their existing governments, and all live under one and the same, and only one and the same, law. That one law is the law of justice. This is the one only law the world needs, or can endure. Whatever other laws (so called) are either more, less, or other than justice itself, are necessarily unjust, and are therefore to be resisted and abolished.

Whenever, in any case whatever, this one law of justice is repudiated, violence and fraud are necessarily licensed in its stead.

[22]

But this one law of justice is a natural principle, and not any thing that any human power can make, unmake, or modify. Being a natural principle, it is a subject of science, and is to be learned like all other sciences. It is also the same in all places, and in all times; and will remain the same in all places, and among all peoples, so long as the world shall stand.

The want of this one law is the only obstacle, not only in the way of your carrying your present discoveries and inventions all over the world, but also to such a multiplication of discoveries and inventions as doubtless mankind at large—nor even the most far-seeing of them—have ever conceived of.

You, above all other men, (I repeat) have the power and the inducements to carry this law all over the world, and establish its authority in opposition to all the adverse laws and governments that now exist.

In subsequent letters, and other separate publications, if scientists and inventors shall favor the enterprise, I purpose to show that it is perfectly feasible and easy to establish, all over the world, their right of perpetual property in their discoveries and inventions. In fact, unless scientists and inventors can maintain their own rights of property, and establish justice in the place of such transparent conspiracies and villanies as all the principal governments of the world now are, it is plain that, instead of claiming to be the great lights and benefactors of mankind, they ought to write themselves down as imbeciles, cowards, and slaves.

Endnotes

*

The probability is, I think, that if the right of property in all scientific discoveries and mechanical inventions, past and future, were made perpetual, all over the world, the discoverers and inventors themselves, and their heirs and assigns, would get not more than one per cent. of all the wealth created by means of them.

T.36 A Letter to Grover Cleveland, on his False Inaugural Address, the Usurpations and Crimes of Lawmakers and Judges, and the Consequent Poverty, Ignorance, and Servitude of the People (1886).↩

Title

[36.] A Letter to Grover Cleveland, on his False Inaugural Address, the Usurpations and Crimes of Lawmakers and Judges, and the Consequent Poverty, Ignorance, and Servitude of the People (Boston: Benj. R. Tucker, Publisher, 1886).

- also online </titles/2224>.

Text

A LETTER TO GROVER CLEVELAND.

Section I.

To Grover Cleveland:

Sir,—

Your inaugural address is probably as honest, sensible, and consistent a one as that of any president within the last fifty years, or, perhaps, as any since the foundation of the government. If, therefore, it is false, absurd, self-contradictory, and ridiculous, it is not (as I think) because you are personally less honest, sensible, or consistent than your predecessors, but because the government itself—according to your own description of it, and according to the practical administration of it for nearly a hundred years—is an utterly and palpably false, absurd, and criminal one. Such praises as you bestow upon it are, therefore, necessarily false, absurd, and ridiculous.

Thus you describe it as “a government pledged to do equal and exact justice to all men.”

Did you stop to think what that means? Evidently you did not; for nearly, or quite, all the rest of your address is in direct contradiction to it.

Let me then remind you that justice is an immutable, natural principle; and not anything that can be made, unmade, or altered by any human power.

It is also a subject of science, and is to be learned, like mathematics, or any other science. It does not derive its authority from the commands, will, pleasure, or discretion of any possible combination of men, whether calling themselves a government, or by any other name.

It is also, at all times, and in all places, the supreme law. And being everywhere and always the supreme law, it is necessarily everywhere and always the only law.

Lawmakers, as they call themselves, can add nothing to it, nor take anything from it. Therefore all their laws, as they call them,—that is, all the laws of their own making,—have no color of authority or obligation. It is a falsehood to call them laws; for there is nothing in them that either creates men’s duties or rights, or enlightens them as to their duties or rights. There is consequently nothing binding or obligatory about them. And nobody is bound to take the least notice [4] of them, unless it be to trample them under foot, as usurpations. If they command men to do justice, they add nothing to men’s obligation to do it, or to any man’s right to enforce it. They are therefore mere idle wind, such as would be commands to consider the day as day, and the night as night. If they command or license any man to do injustice, they are criminal on their face. If they command any man to do anything which justice does not require him to do, they are simple, naked usurpations and tyrannies. If they forbid any man to do anything, which justice would permit him to do, they are criminal invasions of his natural and rightful liberty. In whatever light, therefore, they are viewed, they are utterly destitute of everything like authority or obligation. They are all necessarily either the impudent, fraudulent, and criminal usurpations of tyrants, robbers, and murderers, or the senseless work of ignorant or thoughtless men, who do not know, or certainly do not realize, what they are doing.

This science of justice, or natural law, is the only science that tells us what are, and what are not, each man’s natural, inherent, inalienable, individual rights, as against any and all other men. And to say that any, or all, other men may rightfully compel him to obey any or all such other laws as they may see fit to make, is to say that he has no rights of his own, but is their subject, their property, and their slave.

For the reasons now given, the simple maintenance of justice, or natural law, is plainly the one only purpose for which any coercive power—or anything bearing the name of government—has a right to exist.

It is intrinsically just as false, absurd, ludicrous, and ridiculous to say that lawmakers, so-called, can invent and make any laws, of their own, authoritatively fixing, or declaring, the rights of individuals, or that shall be in any manner authoritative or obligatory upon individuals, or that individuals may rightfully be compelled to obey, as it would be to say that they can invent and make such mathematics, chemistry, physiology, or other sciences, as they see fit, and rightfully compel individuals to conform all their actions to them, instead of conforming them to the mathematics, chemistry, physiology, or other sciences of nature.

Lawmakers, as they call themselves, might just as well claim the right to abolish, by statute, the natural law of gravitation, the natural laws of light, heat, and electricity, and all the other natural laws of matter and mind, and institute laws of their own in the place of them, and compel conformity to them, as to claim the right to set aside the natural law of justice, and compel obedience to such other laws as they may see fit to manufacture, and set up in its stead.

Let me now ask you how you imagine that your so-called lawmakers can “do equal and exact justice to all men,” by any so-called laws of their own making. If their laws command anything but justice, or forbid anything but injustice, they are themselves unjust and criminal. If they simply command justice, and forbid injustice, they add nothing to the natural authority of justice, or to men’s obligation [5] to obey it. It is, therefore, a simple impertinence, and sheer impudence, on their part, to assume that their commands, as such, are of any authority whatever. It is also sheer impudence, on their part, to assume that their commands are at all necessary to teach other men what is, and what is not, justice. The science of justice is as open to be learned by all other men, as by themselves; and it is, in general, so simple and easy to be learned, that there is no need of, and no place for, any man, or body of men, to teach it, declare it, or command it, on their own authority.

For one, or another, of these reasons, therefore, each and every law, so-called, that forty-eight different congresses have presumed to make, within the last ninety-six years, have been utterly destitute of all legitimate authority. That is to say, they have either been criminal, as commanding or licensing men to do what justice forbade them to do, or as forbidding them to do what justice would have permitted them to do; or else they have been superfluous, as adding nothing to men’s knowledge of justice, or to their obligation to do justice, or abstain from injustice.

What excuse, then, have you for attempting to enforce upon the people that great mass of superfluous or criminal laws (so-called) which ignorant and foolish, or impudent and criminal, men have, for so many years, been manufacturing, and promulgating, and enforcing, in violation of justice, and of all men’s natural, inherent, and inalienable rights?

Section II.

Perhaps you will say that there is no such science as that of justice. If you do say this, by what right, or on what reason, do you proclaim your intention “to do equal and exact justice to all men”? If there is no science of justice, how do you know that there is any such principle as justice? Or how do you know what is, and what is not, justice? If there is no science of justice,—such as the people can learn and understand for themselves,—why do you say anything about justice to them? Or why do you promise them any such thing as “equal and exact justice,” if they do not know, and are incapable of learning, what justice is? Do you use this phrase to deceive those whom you look upon as being so ignorant, so destitute of reason, as to be deceived by idle, unmeaning words? If you do not, you are plainly bound to let us all know what you do mean, by doing “equal and exact justice to all men.”

I can assure you, sir, that a very large portion of the people of this country do not believe that the government is doing “equal and exact justice to all men.” And some persons are earnestly promulgating the idea that the government is not attempting to do, and has no intention of doing, anything like “equal and exact justice to all men”; that, on the contrary, it is knowingly, deliberately, and wilfully doing an incalculable amount of injustice; that it has always been doing this in the past, and that it has no intention of doing anything else in the future; that [6] it is a mere tool in the hands of a few ambitious, rapacious, and unprincipled men; that its purpose, in doing all this injustice, is to keep—so far as they can without driving the people to rebellion—all wealth, and all political power, in as few hands as possible; and that this injustice is the direct cause of all the widespread poverty, ignorance, and servitude among the great body of the people.

Now, Sir, I wish I could hope that you would do something to show that you are not a party to any such scheme as that; something to show that you are neither corrupt enough, nor blind enough, nor coward enough, to be made use of for any such purpose as that; something to show that when you profess your intention “to do equal and exact justice to all men,” you attach some real and definite meaning to your words. Until you do that, is it not plain that the people have a right to consider you a tyrant, and the confederate and tool of tyrants, and to get rid of you as unceremoniously as they would of any other tyrant?

Section III.

Sir, if any government is to be a rational, consistent, and honest one, it must evidently be based on some fundamental, immutable, eternal principle; such as every man may reasonably agree to, and such as every man may rightfully be compelled to abide by, and obey. And the whole power of the government must be limited to the maintenance of that single principle. And that one principle is justice. There is no other principle that any man can rightfully enforce upon others, or ought to consent to have enforced against himself. Every man claims the protection of this principle for himself, whether he is willing to accord it to others, or not. Yet such is the inconsistency of human nature, that some men—in fact, many men—who will risk their lives for this principle, when their own liberty or property is at stake, will violate it in the most flagrant manner, if they can thereby obtain arbitrary power over the persons or property of others. We have seen this fact illustrated in this country, through its whole history—especially during the last hundred years—and in the case of many of the most conspicuous persons. And their example and influence have been employed to pervert the whole character of the government. It is against such men, that all others, who desire nothing but justice for themselves, and are willing to unite to secure it for all others, must combine, if we are ever to have justice established for any.

Section IV.

It is self-evident that no number of men, by conspiring, and calling themselves a government, can acquire any rights whatever over other men, or other men’s property, which they had not before, as individuals. And whenever any number [7] of men, calling themselves a government, do anything to another man, or to his property, which they had no right to do as individuals, they thereby declare themselves trespassers, robbers, or murderers, according to the nature of their acts.

Men, as individuals, may rightfully compel each other to obey this one law of justice. And it is the only law which any man can rightfully be compelled, by his fellow men, to obey. All other laws, it is optional with each man to obey, or not, as he may choose. But this one law of justice he may rightfully be compelled to obey; and all the force that is reasonably necessary to compel him, may rightfully be used against him.

But the right of every man to do anything, and everything, which justice does not forbid him to do, is a natural, inherent, inalienable right. It is his right, as against any and all other men, whether they be many, or few. It is a right indispensable to every man’s highest happiness; and to every man’s power of judging and determining for himself what will, and what will not, promote his happiness. Any restriction upon the exercise of this right is a restriction upon his rightful power of providing for, and accomplishing, his own well-being.

Sir, these natural, inherent, inalienable, individual rights are sacred things. They are the only human rights. They are the only rights by which any man can protect his own property, liberty, or life against any one who may be disposed to take it away. Consequently they are not things that any set of either blockheads or villains, calling themselves a government, can rightfully take into their own hands, and dispose of at their pleasure, as they have been accustomed to do in this, and in nearly or quite all other countries.

Section V.

Sir, I repeat that individual rights are the only human rights. Legally speaking, there are no such things as “public rights,” as distinguished from individual rights. Legally speaking, there is no such creature or thing as “the public.” The term “the public” is an utterly vague and indefinite one, applied arbitrarily and at random to a greater or less number of individuals, each and every one of whom have their own separate, individual rights, and none others. And the protection of these separate, individual rights is the one only legitimate purpose, for which anything in the nature of a governing, or coercive, power has a right to exist. And these separate, individual rights all rest upon, and can be ascertained only by, the one science of justice.

Legally speaking, the term “public rights” is as vague and indefinite as are the terms “public health,” “public good,” “public welfare,” and the like. It has no legal meaning, except when used to describe the separate, private, individual rights of a greater or less number of individuals.

In so far as the separate, private, natural rights of individuals are secured, in [8] just so far, and no farther, are the “public rights” secured. In so far as the separate, private, natural rights of individuals are disregarded or violated, in just so far are “public rights” disregarded or violated. Therefore all the pretences of so-called lawmakers, that they are protecting “public rights,” by violating private rights, are sheer and utter contradictions and frauds. They are just as false and absurd as it would be to say that they are protecting the public health, by arbitrarily poisoning and destroying the health of single individuals.

The pretence of the lawmakers, that they are promoting the “public good,” by violating individual “rights,” is just as false and absurd as is the pretence that they are protecting “public rights” by violating “private rights.” Sir, the greatest “public good,” of which any coercive power, calling itself a government, or by any other name, is capable, is the protection of each and every individual in the quiet and peaceful enjoyment and exercise of all his own natural, inherent, inalienable, individual “rights.” This is a “good” that comes home to each and every individual, of whom “the public” is composed. It is also a “good,” which each and every one of these individuals, composing “the public,” can appreciate. It is a “good,” for the loss of which governments can make no compensation whatever. It is a universal and impartial “good,” of the highest importance to each and every human being; and not any such vague, false, and criminal thing as the lawmakers—when violating private rights—tell us they are trying to accomplish, under the name of “the public good.” It is also the only “equal and exact justice,” which you, or anybody else, are capable of securing, or have any occasion to secure, to any human being. Let but this “equal and exact justice” be secured “to all men,” and they will then be abundantly able to take care of themselves, and secure their own highest “good.” Or if any one should ever chance to need anything more than this, he may safely trust to the voluntary kindness of his fellow men to supply it.

It is one of those things not easily accounted for, that men who would scorn to do an injustice to a fellow man, in a private transaction,—who would scorn to usurp any arbitrary dominion over him, or his property,—who would be in the highest degree indignant, if charged with any private injustice,—and who, at a moment’s warning, would take their lives in their hands, to defend their own rights, and redress their own wrongs,—will, the moment they become members of what they call a government, assume that they are absolved from all principles and all obligations that were imperative upon them, as individuals; will assume that they are invested with a right of arbitrary and irresponsible dominion over other men, and other men’s property. Yet they are doing this continually. And all the laws they make are based upon the assumption that they have now become invested with rights that are more than human, and that those, on whom their laws are to operate, have lost even their human rights. They seem to be utterly blind to the fact, that the only reason there can be for their existence as a government, is that [9] they may protect those very “rights,” which they before scrupulously respected, but which they now unscrupulously trample upon.

Section VI.

But you evidently believe nothing of what I have now been saying. You evidently believe that justice is no law at all, unless in cases where the lawmakers may chance to prefer it to any law which they themselves can invent.

You evidently believe that a certain paper, called the constitution, which nobody ever signed, which few persons ever read, which the great body of the people never saw, and as to the meaning of which no two persons were ever agreed, is the supreme law of this land, anything in the law of nature—anything in the natural, inherent, inalienable, individual rights of fifty millions of people—to the contrary notwithstanding.

Did folly, falsehood, absurdity, assumption, or criminality ever reach a higher point than that?

You evidently believe that those great volumes of statutes, which the people at large have never read, nor even seen, and never will read, nor see, but which such men as you and your lawmakers have been manufacturing for nearly a hundred years, to restrain them of their liberty, and deprive them of their natural rights, were all made for their benefit, by men wiser than they—wiser even than justice itself—and having only their welfare at heart!

You evidently believe that the men who made those laws were duly authorized to make them; and that you yourself have been duly authorized to enforce them. But in this you are utterly mistaken. You have not so much as the honest, responsible scratch of one single pen, to justify you in the exercise of the power you have taken upon yourself to exercise. For example, you have no such evidence of your right to take any man’s property for the support of your government, as would be required of you, if you were to claim pay for a single day’s honest labor.

It was once said, in this country, that taxation without consent was robbery. And a seven years’ war was fought to maintain that principle. But if that principle were a true one in behalf of three millions of men, it is an equally true one in behalf of three men, or of one man.

Who are ever taxed? Individuals only. Who have property that can be taxed? Individuals only. Who can give their consent to be taxed? Individuals only. Who are ever taxed without their consent? Individuals only. Who, then, are robbed, if taxed without their consent? Individuals only.

If taxation without consent is robbery, the United States government has never had, has not now, and is never likely to have, a single honest dollar in its treasury.

[10]

If taxation without consent is not robbery, then any band of robbers have only to declare themselves a government, and all their robberies are legalized.

If any man’s money can be taken by a so-called government, without his own personal consent, all his other rights are taken with it; for with his money the government can, and will, hire soldiers to stand over him, compel him to submit to its arbitrary will, and kill him if he resists.

That your whole claim of a right to any man’s money for the support of your government, without his consent, is the merest farce and fraud, is proved by the fact that you have no such evidence of your right to take it, as would be required of you, by one of your own courts, to prove a debt of five dollars, that might be honestly due you.

You and your lawmakers have no such evidence of your right of dominion over the people of this country, as would be required to prove your right to any material property, that you might have purchased.

When a man parts with any considerable amount of such material property as he has a natural right to part with,—as, for example, houses, or lands, or food, or clothing, or anything else of much value,—he usually gives, and the purchaser usually demands, some written acknowledgment, receipt, bill of sale, or other evidence, that will prove that he voluntarily parted with it, and that the purchaser is now the real and true owner of it. But you hold that fifty millions of people have voluntarily parted, not only with their natural right of dominion over all their material property, but also with all their natural right of dominion over their own souls and bodies; when not one of them has ever given you a scrap of writing, or even “made his mark,” to that effect.

You have not so much as the honest signature of a single human being, granting to you or your lawmakers any right of dominion whatever over him or his property.

You hold your place only by a title, which, on no just principle of law or reason, is worth a straw. And all who are associated with you in the government—whether they be called senators, representatives, judges, executive officers, or what not—all hold their places, directly or indirectly, only by the same worthless title. That title is nothing more nor less than votes given in secret (by secret ballot), by not more than one-fifth of the whole population. These votes were given in secret solely because those who gave them did not dare to make themselves personally responsible, either for their own acts, or the acts of their agents, the lawmakers, judges, etc.

These voters, having given their votes in secret (by secret ballot), have put it out of your power—and out of the power of all others associated with you in the government—to designate your principals individually. That is to say, you have no legal knowledge as to who voted for you, or who voted against you. And being unable to designate your principals individually, you have no right to say that you [11] have any principals. And having no right to say that you have any principals, you are bound, on every just principle of law or reason, to confess that you are mere usurpers, making laws, and enforcing them, upon your own authority alone.

A secret ballot makes a secret government; and a secret government is nothing else than a government by conspiracy. And a government by conspiracy is the only government we now have.

You say that “every voter exercises a public trust.”

Who appointed him to that trust? Nobody. He simply usurped the power; he never accepted the trust. And because he usurped the power, he dares exercise it only in secret. Not one of all the ten millions of voters, who helped to place you in power, would have dared to do so, if he had known that he was to be held personally responsible, before any just tribunal, for the acts of those for whom he voted.

Inasmuch as all the votes, given for you and your lawmakers, were given in secret, all that you and they can say, in support of your authority as rulers, is that you venture upon your acts as lawmakers, etc., not because you have any open, authentic, written, legitimate authority granted you by any human being,—for you can show nothing of the kind,—but only because, from certain reports made to you of votes given in secret, you have reason to believe that you have at your backs a secret association strong enough to sustain you by force, in case your authority should be resisted.

Is there a government on earth that rests upon a more false, absurd, or tyrannical basis than that?

Section VII.

But the falsehood and absurdity of your whole system of government do not result solely from the fact that it rests wholly upon votes given in secret, or by men who take care to avoid all personal responsibility for their own acts, or the acts of their agents. On the contrary, if every man, woman, and child in the United States had openly signed, sealed, and delivered to you and your associates, a written document, purporting to invest you with all the legislative, judicial, and executive powers that you now exercise, they would not thereby have given you the slightest legitimate authority. Such a contract, purporting to surrender into your hands all their natural rights of person and property, to be disposed of at your pleasure or discretion, would have been simply an absurd and void contract, giving you no real authority whatever.

It is a natural impossibility for any man to make a binding contract, by which he shall surrender to others a single one of what are commonly called his “natural, inherent, inalienable rights.”

It is a natural impossibility for any man to make a binding contract, that shall invest others with any right whatever of arbitrary, irresponsible dominion over him.

[12]

The right of arbitrary, irresponsible dominion is the right of property; and the right of property is the right of arbitrary, irresponsible dominion. The two are identical. There is no difference between them. Neither can exist without the other. If, therefore, our so-called lawmakers really have that right of arbitrary, irresponsible dominion over us, which they claim to have, and which they habitually exercise, it must be because they own us as property. If they own us as property, it must be because nature made us their property; for, as no man can sell himself as a slave, we could never make a binding contract that should make us their property—or, what is the same thing, give them any right of arbitrary, irresponsible dominion over us.

As a lawyer, you certainly ought to know that all this is true.

Section VIII.

Sir, consider, for a moment, what an utterly false, absurd, ridiculous, and criminal government we now have.

It all rests upon the false, ridiculous, and utterly groundless assumption, that fifty millions of people not only could voluntarily surrender, but actually have voluntarily surrendered, all their natural rights, as human beings, into the custody of some four hundred men, called lawmakers, judges, etc., who are to be held utterly irresponsible for the disposal they may make of them.*

The only right, which any individual is supposed to retain, or possess, under the government, is a purely fictitious one,—one that nature never gave him,—to wit, his right (so-called), as one of some ten millions of male adults, to give away, by his vote, not only all his own natural, inherent, inalienable, human rights, but also all the natural, inherent, inalienable, human rights of forty millions of other human beings—that is, women and children.

To suppose that any one of all these ten millions of male adults would voluntarily surrender a single one of all his natural, inherent, inalienable, human rights into the hands of irresponsible men, is an absurdity; because, first, he has no [13] power to do so, any contract he may make for that purpose being absurd, and necessarily void; and, secondly, because he can have no rational motive for doing so. To suppose him to do so, is to suppose him to be an idiot, incapable of making any rational and obligatory contract. It is to suppose he would voluntarily give away everything in life that was of value to himself, and get nothing in return. To suppose that he would attempt to give away all the natural rights of other persons—that is, the women and children—as well as his own, is to suppose him to attempt to do something that he has no right, or power, to do. It is to suppose him to be both a villain and a fool.

And yet this government now rests wholly upon the assumption that some ten millions of male adults—men supposed to be compos mentis—have not only attempted to do, but have actually succeeded in doing, these absurd and impossible things.

It cannot be said that men put all their rights into the hands of the government, in order to have them protected; because there can be no such thing as a man’s being protected in his rights, any longer than he is allowed to retain them in his own possession. The only possible way, in which any man can be protected in his rights, is to protect him in his own actual possession and exercise of them. And yet our government is absurd enough to assume that a man can be protected in his rights, after he has surrendered them altogether into other hands than his own.

This is just as absurd as it would be to assume that a man had given himself away as a slave, in order to be protected in the enjoyment of his liberty.

A man wants his rights protected, solely that he himself may possess and use them, and have the full benefit of them. But if he is compelled to give them up to somebody else,—to a government, so-called, or to any body else,—he ceases to have any rights of his own to be protected.

To say, as the advocates of our government do, that a man must give up some of his natural rights, to a government, in order to have the rest of them protected—the government being all the while the sole and irresponsible judge as to what rights he does give up, and what he retains, and what are to be protected—is to say that he gives up all the rights that the government chooses, at any time, to assume that he has given up; and that he retains none, and is to be protected in none, except such as the government shall, at all times, see fit to protect, and to permit him to retain. This is to suppose that he has retained no rights at all, that he can, at any time, claim as his own, as against the government. It is to say that he has really given up every right, and reserved none.

For a still further reason, it is absurd to say that a man must give up some of his rights to a government, in order that government may protect him in the rest. That reason is, that every right he gives up diminishes his own power of self-protection, and makes it so much more difficult for the government to protect him. And yet our government says a man must give up all his rights, in order that it [14] may protect him. It might just as well be said that a man must consent to be bound hand and foot, in order to enable a government, or his friends, to protect him against an enemy. Leave him in full possession of his limbs, and of all his powers, and he will do more for his own protection than he otherwise could, and will have less need of protection from a government, or any other source.

Finally, if a man, who is compos mentis, wants any outside protection for his rights, he is perfectly competent to make his own bargain for such as he desires; and other persons have no occasion to thrust their protection upon him, against his will; or to insist, as they now do, that he shall give up all, or any, of his rights to them, in consideration of such protection, and only such protection, as they may afterwards choose to give him.

It is especially noticeable that those persons, who are so impatient to protect other men in their rights that they cannot wait until they are requested to do so, have a somewhat inveterate habit of killing all who do not voluntarily accept their protection; or do not consent to give up to them all their rights in exchange for it.

If A were to go to B, a merchant, and say to him, “Sir, I am a night-watchman, and I insist upon your employing me as such in protecting your property against burglars; and to enable me to do so more effectually, I insist upon your letting me tie your own hands and feet, so that you cannot interfere with me; and also upon your delivering up to me all your keys to your store, your safe, and to all your valuables; and that you authorize me to act solely and fully according to my own will, pleasure, and discretion in the matter; and I demand still further, that you shall give me an absolute guaranty that you will not hold me to any accountability whatever for anything I may do, or for anything that may happen to your goods while they are under my protection; and unless you comply with this proposal, I will now kill you on the spot,”—if A were to say all this to B, B would naturally conclude that A himself was the most impudent and dangerous burglar that he (B) had to fear; and that if he (B) wished to secure his property against burglars, his best way would be to kill A in the first place, and then take his chances against all such other burglars as might come afterwards.

Our government constantly acts the part that is here supposed to be acted by A. And it is just as impudent a scoundrel as A is here supposed to be. It insists that every man shall give up all his rights unreservedly into its custody, and then hold it wholly irresponsible for any disposal it may make of them. And it gives him no alternative but death.

If by putting a bayonet to a man’s breast, and giving him his choice, to die, or be “protected in his rights,” it secures his consent to the latter alternative, it then proclaims itself a free government,—a government resting on consent!

You yourself describe such a government as “the best government ever vouchsafed to man.”

Can you tell me of one that is worse in principle?

[15]

But perhaps you will say that ours is not so bad, in principle, as the others, for the reason that here, once in two, four, or six years, each male adult is permitted to have one vote in ten millions, in choosing the public protectors. Well, if you think that that materially alters the case, I wish you joy of your remarkable discernment.

Section IX.

Sir, if a government is to “do equal and exact justice to all men,” it must do simply that, and nothing more. If it does more than that to any,—that is, if it gives monopolies, privileges, exemptions, bounties, or favors to any,—it can do so only by doing injustice to more or less others. It can give to one only what it takes from others; for it has nothing of its own to give to any one. The best that it can do for all, and the only honest thing it can do for any, is simply to secure to each and every one his own rights,—the rights that nature gave him,—his rights of person, and his rights of property; leaving him, then, to pursue his own interests, and secure his own welfare, by the free and full exercise of his own powers of body and mind; so long as he trespasses upon the equal rights of no other person.

If he desires any favors from any body, he must, I repeat, depend upon the voluntary kindness of such of his fellow men as may be willing to grant them. No government can have any right to grant them; because no government can have a right to take from one man any thing that is his, and give it to another.

If this be the only true idea of an honest government, it is plain that it can have nothing to do with men’s “interests,” “welfare,” or “prosperity,” as distinguished from their “rights.” Being secured in their rights, each and all must take the sole charge of, and have the sole responsibility for, their own “interests,” “welfare,” and “prosperity.”

By simply protecting every man in his rights, a government necessarily keeps open to every one the widest possible field, that he honestly can have, for such industry as he may choose to follow. It also insures him the widest possible field for obtaining such capital as he needs for his industry, and the widest possible markets for the products of his labor. With the possession of these rights, he must be content.

No honest government can go into business with any individuals, be they many, or few. It cannot furnish capital to any, nor prohibit the loaning of capital to any. It can give to no one any special aid to competition; nor protect any one from competition. It must adhere inflexibly to the principle of entire freedom for all honest industry, and all honest traffic. It can do to no one any favor, nor render to any one any assistance, which it withholds from another. It must hold the scales impartially between them; taking no cognizance of any man’s “interests,” “welfare,” or “prosperity,” otherwise than by simply protecting him in his “rights.”

In opposition to this view, lawmakers profess to have weighty duties laid upon [16] them, to promote men’s “interests,” “welfare,” and “prosperity,” as distinguished from their “rights.” They seldom have any thing to say about men’s “rights.” On the contrary, they take it for granted that they are charged with the duty of promoting, superintending, directing, and controlling the “business” of the country. In the performance of this supposed duty, all ideas of individual “rights” are cast aside. Not knowing any way—because there is no way—in which they can impartially promote all men’s “interests,” “welfare,” and “prosperity,” otherwise than by protecting impartially all men’s rights, they boldly proclaim that “individual rights must not be permitted to stand in the way of the public good, the public welfare, and the business interests of the country.”

Substantially all their lawmaking proceeds upon this theory; for there is no other theory, on which they can find any justification whatever for any lawmaking at all. So they proceed to give monopolies, privileges, bounties, grants, loans, etc., etc., to particular persons, or classes of persons; justifying themselves by saying that these privileged persons will “give employment” to the unprivileged; and that this employment, given by the privileged to the unprivileged, will compensate the latter for the loss of their “rights.” And they carry on their lawmaking of this kind to the greatest extent they think is possible, without causing rebellion and revolution, on the part of the injured classes.

Sir, I am sorry to see that you adopt this lawmaking theory to its fullest extent; that although, for once only, and in a dozen words only,—and then merely incidentally,—you describe the government as “a government pledged to do equal and exact justice to all men,” you show, throughout the rest of your address, that you have no thought of abiding by that principle; that you are either utterly ignorant, or utterly regardless, of what that principle requires of you; that the government, so far as your influence goes, is to be given up to the business of lawmaking,—that is, to the business of abolishing justice, and establishing injustice in its place; that you hold it to be the proper duty and function of the government to be constantly looking after men’s “interests,” “welfare,” “prosperity,” etc., etc., as distinguished from their rights; that it must consider men’s “rights” as no guide to the promotion of their “interests”; that it must give favors to some, and withhold the same favors from others; that in order to give these favors to some, it must take from others their rights; that, in reality, it must traffic in both men’s interests and their rights; that it must keep open shop, and sell men’s interests and rights to the highest bidders; and that this is your only plan for promoting “the general welfare,” “the common interest,” etc., etc.

That such is your idea of the constitutional duties and functions of the government, is shown by different parts of your address: but more fully, perhaps, by this:

The large variety of diverse and competing interests subject to federal control, persistently seeking recognition of their claims, need give us no fear that the greatest good of the greatest [17] number will fail to be accomplished, if, in the halls of national legislation, that spirit of amity and mutual concession shall prevail, in which the constitution had its birth. If this involves the surrender or postponement of private interests, and the abandonment of local advantages, compensation will be found in the assurance that thus the common interest is subserved, and the general welfare advanced.

What is all this but saying that the government is not at all an institution for “doing equal and exact justice to all men,” or for the impartial protection of all men’s rights; but that it is its proper business to take sides, for and against, a “large variety of diverse and competing interests”; that it has this “large variety of diverse and competing interests” under its arbitrary “control”; that it can, at its pleasure, make such laws as will give success to some of them, and insure the defeat of others; that these “various, diverse, and competing interests” will be “persistently seeking recognition of their claims . . . . in the halls of national legislation,”—that is, will be “persistently” clamoring for laws to be made in their favor; that, in fact, “the halls of national legislation” are to be mere arenas, into which the government actually invites the advocates and representatives of all the selfish schemes of avarice and ambition that unprincipled men can devise; that these schemes will there be free to “compete” with each other in their corrupt offers for government favor and support; and that it is to be the proper and ordinary business of the lawmakers to listen to all these schemes; to adopt some of them, and sustain them with all the money and power of the government; and to “postpone,” “abandon,” oppose, and defeat all others; it being well known, all the while, that the lawmakers will, individually, favor, or oppose, these various schemes, according to their own irresponsible will, pleasure, and discretion,—that is, according as they can better serve their own personal interests and ambitions by doing the one or the other.

Was a more thorough scheme of national villainy ever invented?

Sir, do you not know that in this conflict, between these “various, diverse, and competing interests,” all ideas of individual “rights”—all ideas of “equal and exact justice to all men”—will be cast to the winds; that the boldest, the strongest, the most fraudulent, the most rapacious, and the most corrupt, men will have control of the government, and make it a mere instrument for plundering the great body of the people?

Your idea of the real character of the government is plainly this: The lawmakers are to assume absolute and irresponsible “control” of all the financial resources, all the legislative, judicial, and executive powers, of the government, and employ them all for the promotion of such schemes of plunder and ambition as they may select from all those that may be submitted to them for their approval; that they are to keep “the halls of national legislation” wide open for the admission of all persons having such schemes to offer; and that they are to grant monopolies, privileges, loans, and bounties to all such of these schemes as they can make [18] subserve their own individual interests and ambitions, and reject or “postpone” all others. And that there is to be no limit to their operations of this kind, except their fear of exciting rebellion and resistance on the part of the plundered classes.

And you are just fool enough to tell us that such a government as this may be relied on to “accomplish the greatest good to the greatest number,” “to subserve the common interest,” and “advance the general welfare,” “if,” only, “in the halls of national legislation, that spirit of amity and mutual concession shall prevail, in which the constitution had its birth.”

You here assume that “the general welfare” is to depend, not upon the free and untrammelled enterprise and industry of the whole people, acting individually, and each enjoying and exercising all his natural rights; but wholly or principally upon the success of such particular schemes as the government may take under its special “control.” And this means that “the general welfare” is to depend, wholly or principally, upon such privileges, monopolies, loans, and bounties as the government may grant to more or less of that “large variety of diverse and competing interests”—that is, schemes—that may be “persistently” pressed upon its attention.

But as you impliedly acknowledge that the government cannot take all these “interests” (schemes) under its “control,” and bestow its favors upon all alike, you concede that some of them must be “surrendered,” “postponed,” or “abandoned”; and that, consequently, the government cannot get on at all, unless, “in the halls of national legislation, that spirit of amity and mutual concession shall prevail, in which the constitution had its birth.”

This “spirit of amity and mutual concession in the halls of legislation,” you explain to mean this: a disposition, on the part of the lawmakers respectively—whose various schemes of plunder cannot all be accomplished, by reason of their being beyond the financial resources of the government, or the endurance of the people—to “surrender” some of them, “postpone” others, and “abandon” others, in order that the general business of robbery may go on to the greatest extent possible, and that each one of the lawmakers may succeed with as many of the schemes he is specially intrusted with, as he can carry through by means of such bargains, for mutual help, as he may be able to make with his fellow lawmakers.

Such is the plan of government, to which you say that you “consecrate” yourself, and “engage your every faculty and effort.”

Was a more shameless avowal ever made?

You cannot claim to be ignorant of what crimes such a government will commit. You have had abundant opportunity to know—and if you have kept your eyes open, you do know—what these schemes of robbery have been in the past; and from these you can judge what they will be in the future.

You know that under such a system, every senator and representative—probably without an exception—will come to the congress as the champion of the dominant scoundrelisms of his own State or district; that he will be elected solely to serve [19] those “interests,” as you call them; that in offering himself as a candidate, he will announce the robbery, or robberies, to which all his efforts will be directed; that he will call these robberies his “policy”; or if he be lost to all decency, he will call them his “principles”; that they will always be such as he thinks will best subserve his own interests, or ambitions; that he will go to “the halls of national legislation” with his head full of plans for making bargains with other lawmakers—as corrupt as himself—for mutual help in carrying their respective schemes.

Such has been the character of our congresses nearly, or quite, from the beginning. It can scarcely be said that there has ever been an honest man in one of them. A man has sometimes gained a reputation for honesty, in his own State or district, by opposing some one or more of the robberies that were proposed by members from other portions of the country. But such a man has seldom, or never, deserved his reputation; for he has, generally, if not always, been the advocate of some one or more schemes of robbery, by which more or less of his own constituents were to profit, and which he knew it would be indispensable that he should advocate, in order to give him votes at home.

If there have ever been any members, who were consistently honest throughout,—who were really in favor of “doing equal and exact justice to all men,”—and, of course, nothing more than that to any,—their numbers have been few; so few as to have left no mark upon the general legislation. They have but constituted the exceptions that proved the rule. If you were now required to name such a lawmaker, I think you would search our history in vain to find him.

That this is no exaggerated description of our national lawmaking, the following facts will prove.

For the first seventy years of the government, one portion of the lawmakers would be satisfied with nothing less than permission to rob one-sixth, or one-seventh, of the whole population, not only of their labor, but even of their right to their own persons. In 1860, this class of lawmakers comprised all the senators and representatives from fifteen, of the then thirty-three, States.*

This body of lawmakers, standing always firmly together, and capable of turning the scale for, or against, any scheme of robbery, in which northern men were interested, but on which northern men were divided,—such as navigation acts, tariffs, bounties, grants, war, peace, etc.,—could purchase immunity for their own crime, by supporting such, and so many, northern crimes—second only to their own in atrocity—as could be mutually agreed on.

[20]

In this way the slaveholders bargained for, and secured, protection for slavery and the slave trade, by consenting to such navigation acts as some of the northern States desired, and to such tariffs on imports—such as iron, coal, wool, woollen goods, etc.,—as should enable the home producers of similar articles to make fortunes by robbing everybody else in the prices of their goods.

Another class of lawmakers have been satisfied with nothing less than such a monopoly of money, as should enable the holders of it to suppress, as far as possible, all industry and traffic, except such as they themselves should control; such a monopoly of money as would put it wholly out of the power of the great body of wealth-producers to hire the capital needed for their industries; and thus compel them—especially the mechanical portions of them—by the alternative of starvation—to sell their labor to the monopolists of money, for just such prices as these latter should choose to pay. This monopoly of money has also given, to the holders of it, a control, so nearly absolute, of all industry—agricultural as well as mechanical—and all traffic, as has enabled them to plunder all the producing classes in the prices of their labor, or the products of their labor.

Have you been blind, all these years, to the existence, or the effects, of this monopoly of money?

Still another class of lawmakers have demanded unequal taxation on the various kinds of home property, that are subject to taxation; such unequal taxation as would throw heavy burdens upon some kinds of property, and very light burdens, or no burdens at all, upon other kinds.

And yet another class of lawmakers have demanded great appropriations, or loans, of money, or grants of lands, to enterprises intended to give great wealth to a few, at the expense of everybody else.

These are some of the schemes of downright and outright robbery, which you mildly describe as “the large variety of diverse and competing interests, subject to federal control, persistently seeking recognition of their claims . . . . . in the halls of national legislation”; and each having its champions and representatives among the lawmakers.

You know that all, or very nearly all, the legislation of congress is devoted to these various schemes of robbery; and that little, or no, legislation goes through, except by means of such bargains as these lawmakers may enter into with each other, for mutual support of their respective robberies. And yet you have the mendacity, or the stupidity, to tell us that so much of this legislation as does go through, may be relied on to “accomplish the greatest good to the greatest number,” to “subserve the common interest,” and “advance the general welfare.”

And when these schemes of robbery become so numerous, atrocious, and unendurable that they can no longer be reconciled “in the halls of national legislation,” by “surrendering” some of them, “postponing” others, and “abandoning” others, you assume—for such has been the prevailing opinion, and you say nothing to [21] the contrary—that it is the right of the strongest party, or parties, to murder a half million of men, if that be necessary,—and as we once did,—not to secure liberty or justice to any body,—but to compel the weaker of these would-be robbers to submit to all such robberies as the stronger ones may choose to practise upon them.

Section X.

Sir, your idea of the true character of our government is plainly this: you assume that all the natural, inherent, inalienable, individual, human rights of fifty millions of people—all their individual rights to preserve their own lives, and promote their own happiness—have been thrown into one common heap,—into hotchpotch, as the lawyers say: and that this hotchpotch has been given into the hands of some four hundred champion robbers, each of whom has pledged himself to carry off as large a portion of it as possible, to be divided among those men—well known to himself, but who—to save themselves from all responsibility for his acts—have secretly (by secret ballot) appointed him to be their champion.

Sir, if you had assumed that all the people of this country had thrown all their wealth, all their rights, all their means of living, into hotchpotch; and that this hotchpotch had been given over to four hundred ferocious hounds; and that each of these hounds had been selected and trained to bring to his masters so much of this common plunder as he, in the general fight, or scramble, could get off with, you would scarcely have drawn a more vivid picture of the true character of the government of the United States, than you have done in your inaugural address.

No wonder that you are obliged to confess that such a government can be carried on only “amid the din of party strife”; that it will be influenced—you should have said directed—by “purely partisan zeal”; and that it will be attended by “the animosities of political strife, the bitterness of partisan defeat, and the exultation of partisan triumph.”

What gang of robbers, quarrelling over the division of their plunder, could exhibit a more shameful picture than you thus acknowledge to be shown by the government of the United States?

Sir, nothing of all this “din,” and “strife,” and “animosity,” and “bitterness,” is caused by any attempt, on the part of the government, to simply “do equal and exact justice to all men,”—to simply protect every man impartially in all his natural rights to life, liberty, and property. It is all caused simply and solely by the government’s violation of some men’s “rights,” to promote other men’s “interests.” If you do not know this, you are mentally an object of pity.

Sir, men’s “rights” are always harmonious. That is to say, each man’s “rights” are always consistent and harmonious with each and every other man’s “rights.” But their “interests,” as you estimate them, constantly clash; especially such [22] “interests” as depend on government grants of monopolies, privileges, loans, and bounties. And these “interests,” like the interests of other gamblers, clash with a fury proportioned to the amounts at stake. It is these clashing “interests,” and not any clashing “rights,” that give rise to all the strife you have here depicted, and to all this necessity for “that spirit of amity and mutual concession,” which you hold to be indispensable to the accomplishment of such legislation as you say is necessary to the welfare of the country.

Each and every man’s “rights” being consistent and harmonious with each and every other man’s “rights”; and all men’s rights being immutably fixed, and easily ascertained, by a science that is open to be learned and known by all; a government that does nothing but “equal and exact justice to all men”—that simply gives to every man his own, and nothing more to any—has no cause and no occasion for any “political parties.” What are these “political parties” but standing armies of robbers, each trying to rob the other, and to prevent being itself robbed by the other? A government that seeks only to “do equal and exact justice to all men,” has no cause and no occasion to enlist all the fighting men in the nation in two hostile ranks; to keep them always in battle array, and burning with hatred towards each other. It has no cause and no occasion for any “political warfare,” any “political hostility,” any “political campaigns,” any “political contests,” any “political fights,” any “political defeats,” or any “political triumphs.” It has no cause and no occasion for any of those “political leaders,” so called, whose whole business is to invent new schemes of robbery, and organize the people into opposing bands of robbers; all for their own aggrandizement alone. It has no cause and no occasion for the toleration, or the existence, of that vile horde of political bullies, and swindlers, and blackguards, who enlist on one side or the other, and fight for pay; who, year in and year out, employ their lungs and their ink in spreading lies among ignorant people, to excite their hopes of gain, or their fears of loss, and thus obtain their votes. In short, it has no cause and no occasion for all this “din of party strife,” for all this “purely partisan zeal,” for all “the bitterness of partisan defeat,” for all “the exultation of partisan triumph,” nor, worst of all, for any of “that spirit of amity and mutual concession [by which you evidently mean that readiness, “in the halls of national legislation,” to sacrifice some men’s “rights” to promote other men’s “interests”] in which [you say] the constitution had its birth.”

If the constitution does really, or naturally, give rise to all this “strife,” and require all this “spirit of amity and mutual concession,”—and I do not care now to deny that it does,—so much the worse for the constitution. And so much the worse for all those men who, like yourself, swear to “preserve, protect, and defend it.”

And yet you have the face to make no end of professions, or pretences, that the impelling power, the real motive, in all this robbery and strife, is nothing else [23] than “the service of the people,” “their interests,” “the promotion of their welfare,” “good government,” “government by the people,” “the popular will,” “the general weal,” “the achievements of our national destiny,” “the benefits which our happy form of government can bestow,” “the lasting welfare of the country,” “the priceless benefits of the constitution,” “the greatest good to the greatest number,” “the common interest,” “the general welfare,” “the people’s will,” “the mission of the American people,” “our civil policy,” “the genius of our institutions,” “the needs of our people in their home life,” “the settlement and development of the resources of our vast territory,” “the prosperity of our republic,” “the interests and prosperity of all the people,” “the safety and confidence of business interests,” “making the wage of labor sure and steady,” “a due regard to the interests of capital invested and workingmen employed in American industries,” “reform in the administration of the government,” “the application of business principles to public affairs,” “the constant and ever varying wants of an active and enterprising population,” “a firm determination to secure to all the people of the land the full benefits of the best form of government ever vouchsafed to man,” “the blessings of our national life,” etc., etc.

Sir, what is the use of such a deluge of unmeaning words, unless it be to gloss over, and, if possible, hide, the true character of the acts of the government?

Such “generalities” as these do not even “glitter.” They are only the stale phrases of the demagogue, who wishes to appear to promise everything, but commits himself to nothing. Or else they are the senseless talk of a mere political parrot, who repeats words he has been taught to utter, without knowing their meaning. At best, they are the mere gibberish of a man destitute of all political ideas, but who imagines that “good government,” “the general welfare,” “the common interest,” “the best form of government ever vouchsafed to man,” etc., etc., must be very good things, if anybody can ever find out what they are. There is nothing definite, nothing real, nothing tangible, nothing honest, about them. Yet they constitute your entire stock in trade. In resorting to them—in holding them up to public gaze as comprising your political creed—you assume that they have a meaning; that they are matters of overruling importance; that they require the action of an omnipotent, irresponsible, lawmaking government; that all these “interests” must be represented, and can be secured, only “in the halls of national legislation”; and by such political hounds as have been selected and trained, and sent there, solely that they may bring off, to their respective masters, as much as possible of the public plunder they hold in their hands; that is, as much as possible of the earnings of all the honest wealth-producers of the country.

And when these masters count up the spoils that their hounds have thus brought home to them, they set up a corresponding shout that “the public prosperity,” “the common interest,” and “the general welfare” have been “advanced.” And the scoundrels by whom the work has been accomplished, “in the halls of national [24] legislation,” are trumpeted to the world as “great statesmen.” And you are just stupid enough to be deceived into the belief, or just knave enough to pretend to be deceived into the belief, that all this is really the truth.

One would infer from your address that you think the people of this country incapable of doing anything for themselves, individually; that they would all perish, but for the employment given them by that “large variety of diverse and competing interests”—that is, such purely selfish schemes—as may be “persistently seeking recognition of their claims . . . . . in the halls of national legislation,” and secure for themselves such monopolies and advantages as congress may see fit to grant them.

Instead of your recognizing the right of each and every individual to judge of, and provide for, his own well-being, according to the dictates of his own judgment, and by the free exercise of his own powers of body and mind,—so long as he infringes the equal rights of no other person,—you assume that fifty millions of people, who never saw you, and never will see you, who know almost nothing about you, and care very little about you, are all so weak, ignorant, and degraded as to be humbly and beseechingly looking to you—and to a few more lawmakers (so called) whom they never saw, and never will see, and of whom they know almost nothing—to enlighten, direct, and “control” them in their daily labors to supply their own wants, and promote their own happiness!

You thus assume that these fifty millions of people are so debased, mentally and morally, that they look upon you and your associate lawmakers as their earthly gods, holding their destinies in your hands, and anxiously studying their welfare; instead of looking upon you—as most of you certainly ought to be looked upon—as a mere cabal of ignorant, selfish, ambitious, rapacious, and unprincipled men, who know very little, and care to know very little, except how you can get fame, and power, and money, by trampling upon other men’s rights, and robbing them of the fruits of their labor.

Assuming yourself to be the greatest of these gods, charged with the “welfare” of fifty millions of people, you enter upon the mighty task with all the mock solemnity, and ridiculous grandiloquence, of a man ignorant enough to imagine that he is really performing a solemn duty, and doing an immense public service, instead of simply making a fool of himself. Thus you say:

Fellow citizens: In the presence of this vast assemblage of my countrymen, I am about to supplement and seal, by the oath which I shall take, the manifestation of the will of a great and free people. In the exercise of their power and right of self-government, they have committed to one of their fellow citizens a supreme and sacred trust, and he here consecrates himself to their service. This impressive ceremony adds little to the solemn sense of responsibility with which I contemplate the duty I owe to all the people of the land. Nothing can relieve me from anxiety lest by any act of mine their interests [not their rights] may suffer, and nothing is needed to strengthen my resolution to engage every faculty and effort in the [25] promotion of their welfare. [Not in “doing equal and exact justice to all men.” After having once described the government as one “pledged to do equal and exact justice to all men,” you drop that subject entirely, and wander off into “interests,” and “welfare,” and an astonishing number of other equally unmeaning things.]

Sir, you would have no occasion to take all this tremendous labor and responsibility upon yourself, if you and your lawmakers would but keep your hands off the “rights” of your “countrymen.” Your “countrymen” would be perfectly competent to take care of their own “interests,” and provide for their own “welfare,” if their hands were not tied, and their powers crippled, by such fetters as men like you and your lawmakers have fastened upon them.

Do you know so little of your “countrymen,” that you need to be told that their own strength and skill must be their sole reliance for their own well-being? Or that they are abundantly able, and willing, and anxious above all other things, to supply their own “needs in their home life,” and secure their own “welfare”? Or that they would do it, not only without jar or friction, but as their highest duty and pleasure, if their powers were not manacled by the absurd and villainous laws you propose to execute upon them? Are you so stupid as to imagine that putting chains on men’s hands, and fetters on their feet, and insurmountable obstacles in their paths, is the way to supply their “needs,” and promote their “welfare”? Do you think your “countrymen” need to be told, either by yourself, or by any such gang of ignorant or unprincipled men as all lawmakers are, what to do, and what not to do, to supply their own “needs in their home life”? Do they not know how to grow their own food, make their own clothing, build their own houses, print their own books, acquire all the knowledge, and create all the wealth, they desire, without being domineered over, and thwarted in all their efforts, by any set of either fools or villains, who may call themselves their lawmakers? And do you think they will never get their eyes open to see what blockheads, or impostors, you and your lawmakers are? Do they not now—at least so far as you will permit them to do it—grow their own food, build their own houses, make their own clothing, print their own books? Do they not make all the scientific discoveries and mechanical inventions, by which all wealth is created? Or are all these things done by “the government”? Are you an idiot, that you can talk as you do, about what you and your lawmakers are doing to provide for the real wants, and promote the real “welfare,” of fifty millions of people?

Section XI.

But perhaps the most brilliant idea in your whole address, is this:

Every citizen owes the country a vigilant watch and close scrutiny of its public servants, and a fair and reasonable estimate of their fidelity and usefulness. Thus is the people’s will [26] impressed upon the whole framework of our civil policy, municipal, State, and federal; and this is the price of our liberty, and the inspiration of our faith in the republic.

The essential parts of this declaration are these:

“Every citizen owes the country a vigilant watch and close scrutiny of its public servants, . . . . . and this is the price of our liberty.”

Who are these “public servants,” that need all this watching? Evidently they are the lawmakers, and the lawmakers only. They are not only the chief “public servants,” but they are absolute masters of all the other “public servants.” These other “public servants,” judicial and executive,—the courts, the army, the navy, the collectors of taxes, etc., etc.,—have no function whatever, except that of simple obedience to the lawmakers. They are appointed, paid, and have their duties prescribed to them, by the lawmakers; and are made responsible only to the lawmakers. They are mere puppets in the hands of the lawmakers. Clearly, then, the lawmakers are the only ones we have any occasion to watch.

Your declaration, therefore, amounts, practically, to this, and this only:

Every citizen owes the country a vigilant watch and close scrutiny of ITS LAWMAKERS, . . . . . and this is the price of our liberty.

Sir, your declaration is so far true, as that all the danger to “our liberty” comes solely from the lawmakers.

And why are the lawmakers dangerous to “our liberty”? Because it is a natural impossibility that they can make any law—that is, any law of their own invention—that does not violate “our liberty.”

The law of justice is the one only law that does not violate “our liberty.” And that is not a law that was made by the lawmakers. It existed before they were born, and will exist after they are dead. It derives not one particle of its authority from any commands of theirs. It is, therefore, in no sense, one of their laws. Only laws of their own invention are their laws. And as it is naturally impossible that they can invent any law of their own, that shall not conflict with the law of justice, it is naturally impossible that they can make a law—that is, a law of their own invention—that shall not violate “our liberty.”

The law of justice is the precise measure, and the only precise measure, of the rightful “liberty” of each and every human being. Any law—made by lawmakers—that should give to any man more liberty than is given him by the law of justice, would be a license to commit an injustice upon one or more other persons. On the other hand, any law—made by lawmakers—that should take from any human being any “liberty” that is given him by the law of justice, would be taking from him a part of his own rightful “liberty.”

Inasmuch, then, as every possible law, that can be made by lawmakers, must either give to some one or more persons more “liberty” than the law of nature—or the law of justice—gives them, and more “liberty” than is consistent with the natural and equal “liberty” of all other persons; or else must take from some one [27] or more persons some portion of that “liberty” which the law of nature—or the law of justice—gives to every human being, it is inevitable that every law, that can be made by lawmakers, must be a violation of the natural and rightful “liberty” of some one or more persons.

Therefore the very idea of a lawmaking government—a government that is to make laws of its own invention—is necessarily in direct and inevitable conflict with “our liberty.” In fact, the whole, sole, and only real purpose of any lawmaking government whatever is to take from some one or more persons their “liberty.” Consequently the only way in which all men can preserve their “liberty,” is not to have any lawmaking government at all.

We have been told, time out of mind, that “Eternal vigilance is the price of liberty.” But this admonition, by reason of its indefiniteness, has heretofore fallen dead upon the popular mind. It, in reality, tells us nothing that we need to know, to enable us to preserve “our liberty.” It does not even tell us what “our liberty” is, or how, or when, or through whom, it is endangered, or destroyed.

1. It does not tell us that individual liberty is the only human liberty. It does not tell us that “national liberty,” “political liberty,” “republican liberty,” “democratic liberty,” “constitutional liberty,” “liberty under law,” and all the other kinds of liberty that men have ever invented, and with which tyrants, as well as demagogues, have amused and cheated the ignorant, are not liberty at all, unless in so far as they may, under certain circumstances, have chanced to contribute something to, or given some impulse toward, individual liberty.

2. It does not tell us that individual liberty means freedom from all compulsion to do anything whatever, except what justice requires us to do, and freedom to do everything whatever that justice permits us to do. It does not tell us that individual liberty means freedom from all human restraint or coercion whatsoever, so long as we “live honestly, hurt nobody, and give to every one his due.”

3. It does not tell us that there is any science of liberty; any science, which every man may learn, and by which every man may know, what is, and what is not, his own, and every other man’s, rightful “liberty.”

4. It does not tell us that this right of individual liberty rests upon an immutable, natural principle, which no human power can make, unmake, or alter; nor that all human authority, that claims to set it aside, or modify it, is nothing but falsehood, absurdity, usurpation, tyranny, and crime.

5. It does not tell us that this right of individual liberty is a natural, inherent, inalienable right; that therefore no man can part with it, or delegate it to another, if he would; and that, consequently, all the claims that have ever been made, by governments, priests, or any other powers, that individuals have voluntarily surrendered, or “delegated,” their liberty to others, are all impostures and frauds.

6. It does not tell us that all human laws, so called, and all human lawmaking,—all commands, either by one man, or any number of men, calling themselves a [28] government, or by any other name—requiring any individual to do this, or forbidding him to do that—so long as he “lives honestly, hurts no one, and gives to every one his due”—are all false and tyrannical assumptions of a right of authority and dominion over him; are all violations of his natural, inherent, inalienable, rightful, individual liberty; and, as such, are to be resented and resisted to the utmost, by every one who does not choose to be a slave.

7. And, finally, it does not tell us that all lawmaking governments whatsoever—whether called monarchies, aristocracies, republics, democracies, or by any other name—are all alike violations of men’s natural and rightful liberty.

We can now see why lawmakers are the only enemies, from whom “our liberty” has anything to fear, or whom we have any occasion to watch. They are to be watched, because they claim the right to abolish justice, and establish injustice in its stead; because they claim the right to command us to do things which justice does not require us to do, and to forbid us to do things which justice permits us to do; because they deny our right to be, individually, and absolutely, our own masters and owners, so long as we obey the one law of justice towards all other persons; because they claim to be our masters, and that their commands, as such, are authoritative and binding upon us as law; and that they may rightfully compel us to obey them.

“Our liberty” is in danger only from the lawmakers, because it is only through the agency of lawmakers, that anybody pretends to be able to take away “our liberty.” It is only the lawmakers that claim to be above all responsibility for taking away “our liberty.” Lawmakers are the only ones who are impudent enough to assert for themselves the right to take away “our liberty.” They are the only ones who are impudent enough to tell us that we have voluntarily surrendered “our liberty” into their hands. They are the only ones who have the insolent condescension to tell us that, in consideration of our having surrendered into their hands “our liberty,” and all our natural, inherent, inalienable rights as human beings, they are disposed to give us, in return, “good government,” “the best form of government ever vouchsafed to man”; to “protect” us, to provide for our “welfare,” to promote our “interests,” etc., etc.

And yet you are just blockhead enough to tell us that if “Every citizen”—fifty millions and more of them—will but keep “a vigilant watch and close scrutiny” upon these lawmakers, “our liberty” may be preserved!

Don’t you think, sir, that you are really the wisest man that ever told “a great and free people” how they could preserve “their liberty”?

To be entirely candid, don’t you think, sir, that a surer way of preserving “our liberty” would be to have no lawmakers at all?

[29]

Section XII.

But, in spite of all I have said, or, perhaps, can say, you will probably persist in your idea that the world needs a great deal of lawmaking; that mankind in general are not entitled to have any will, choice, judgment, or conscience of their own; that, if not very wicked, they are at least very ignorant and stupid; that they know very little of what is for their own good, or how to promote their own “interests,” “welfare,” or “prosperity”; that it is therefore necessary that they should be put under guardianship to lawmakers; that these lawmakers, being a very superior race of beings,—wise beyond the rest of their species,—and entirely free from all those selfish passions which tempt common mortals to do wrong,—must be intrusted with absolute and irresponsible dominion over the less favored of their kind; must prescribe to the latter, authoritatively, what they may, and may not, do; and, in general, manage the affairs of this world according to their discretion, free of all accountability to any human tribunals.

And you seem to be perfectly confident that, under this absolute and irresponsible dominion of the lawmakers, the affairs of this world will be rightly managed; that the “interests,” “welfare,” and “prosperity” of “a great and free people” will be properly attended to; that “the greatest good of the greatest number” will be accomplished, etc., etc.

And yet you hold that all this lawmaking, and all this subjection of the great body of the people to the arbitrary, irresponsible dominion of the lawmakers, will not interfere at all with “our liberty,” if only “every citizen” will but keep “a vigilant watch and close scrutiny” of the lawmakers.

Well, perhaps this is all so; although this subjection to the arbitrary will of any man, or body of men, whatever, and under any pretence whatever, seems, on the face of it, to be much more like slavery, than it does like “liberty.”

If, therefore, you really intend to continue this system of lawmaking, it seems indispensable that you should explain to us what you mean by the term “our liberty.”

So far as your address gives us any light on the subject, you evidently mean, by the term “our liberty,” just such, and only such, “liberty,” as the lawmakers may see fit to allow us to have.

You seem to have no conception of any other “liberty” whatever.

You give us no idea of any other “liberty” that we can secure to ourselves, even though “every citizen”—fifty millions and more of them—shall all keep “a vigilant watch and close scrutiny” upon the lawmakers.

Now, inasmuch as the human race always have had all the “liberty” their lawmakers have seen fit to permit them to have; and inasmuch as, under your system of lawmaking, they always will have as much “liberty” as their lawmakers shall see fit to give them; and inasmuch as you apparently concede the right, which the [30] lawmakers have always claimed, of killing all those who are not content with so much “liberty” as their lawmakers have seen fit to allow them,—it seems very plain that you have not added anything to our stock of knowledge on the subject of “our liberty.”

Leaving us thus, as you do, in as great darkness as we ever were, on this all-important subject of “our liberty,” I think you ought to submit patiently to a little questioning on the part of those of us, who feel that all this lawmaking—each and every separate particle of it—is a violation of “our liberty.”

Will you, therefore, please tell us whether any, and, if any, how much, of that natural liberty—of that natural, inherent, inalienable, individual right to liberty—with which it has generally been supposed that God, or Nature, has endowed every human being, will be left to us, if the lawmakers are to continue, as you would have them do, the exercise of their arbitrary, irresponsible dominion over us?

Are you prepared to answer that question?

No. You appear to have never given a thought to any such question as that.

I will therefore answer it for you.

And my answer is, that from the moment it is conceded that any man, or body of men, whatever, under any pretence whatever, have the right to make laws of their own invention, and compel other men to obey them, every vestige of man’s natural and rightful liberty is denied him.

That this is so is proved by the fact that all a man’s natural rights stand upon one and the same basis, viz., that they are the gift of God, or Nature, to him, as an individual, for his own uses, and for his own happiness. If any one of these natural rights may be arbitrarily taken from him by other men, all of them may be taken from him on the same reason. No one of these rights is any more sacred or inviolable in its nature, than are all the others. The denial of any one of these rights is therefore equivalent to a denial of all the others. The violation of any one of these rights, by lawmakers, is equivalent to the assertion of a right to violate all of them.

Plainly, unless all a man’s natural rights are inviolable by lawmakers, none of them are. It is an absurdity to say that a man has any rights of his own, if other men, whether calling themselves a government, or by any other name, have the right to take them from him, without his consent. Therefore the very idea of a lawmaking government necessarily implies a denial of all such things as individual liberty, or individual rights.

From this statement it does not follow that every lawmaking government will, in practice, take from every man all his natural rights. It will do as it pleases about it. It will take some, leaving him to enjoy others, just as its own pleasure or discretion shall dictate at the time. It would defeat its own ends, if it were wantonly to take away all his natural rights,—as, for example, his right to live, and to breathe,—for then he would be dead, and the government could then get [31] nothing more out of him. The most tyrannical government will, therefore, if it have any sense, leave its victims enough liberty to enable them to provide for their own subsistence, to pay their taxes, and to render such military or other service as the government may have need of. But it will do this for its own good, and not for theirs. In allowing them this liberty, it does not at all recognize their right to it, but only consults its own interests.

Now, sir, this is the real character of the government of the United States, as it is of all other lawmaking governments. There is not a single human right, which the government of the United States recognizes as inviolable. It tramples upon any and every individual right, whenever its own will, pleasure, or discretion shall so dictate. It takes men’s property, liberty, and lives whenever it can serve its own purposes by doing so.

All these things prove that the government does not exist at all for the protection of men’s rights; but that it absolutely denies to the people any rights, or any liberty, whatever, except such as it shall see fit to permit them to have for the time being. It virtually declares that it does not itself exist at all for the good of the people, but that the people exist solely for the use of the government.

All these things prove that the government is not one voluntarily established and sustained by the people, for the protection of their natural, inherent, individual rights, but that it is merely a government of usurpers, robbers, and tyrants, who claim to own the people as their slaves, and claim the right to dispose of them, and their property, at their (the usurpers’) pleasure or discretion.

Now, sir, since you may be disposed to deny that such is the real character of the government, I propose to prove it, by evidences so numerous and conclusive that you cannot dispute them.

My proposition, then, is, that there is not a single natural, human right, that the government of the United States recognizes as inviolable; that there is not a single natural, human right, that it hesitates to trample under foot, whenever it thinks it can promote its own interests by doing so.

The proofs of this proposition are so numerous, that only a few of the most important can here be enumerated.

1. The government does not even recognize a man’s natural right to his own life. If it have need of him, for the maintenance of its power, it takes him, against his will (conscripts him), and puts him before the cannon’s mouth, to be blown in pieces, as if he were a mere senseless thing, having no more rights than if he were a shell, a canister, or a torpedo. It considers him simply as so much senseless war material, to be consumed, expended, and destroyed for the maintenance of its power. It no more recognizes his right to have anything to say in the matter, than if he were but so much weight of powder or ball. It does not recognize him at all as a human being, having any rights whatever of his own, but only as an instrument, a weapon, or a machine, to be used in killing other men.

[32]

2. The government not only denies a man’s right, as a moral human being, to have any will, any judgment, or any conscience of his own, as to whether he himself will be killed in battle, but it equally denies his right to have any will, any judgment, or any conscience of his own, as a moral human being, as to whether he shall be used as a mere weapon for killing other men. If he refuses to kill any, or all, other men, whom it commands him to kill, it takes his own life, as unceremoniously as if he were but a dog.

Is it possible to conceive of a more complete denial of all a man’s natural, human rights, than is the denial of his right to have any will, judgment, or conscience of his own, either as to his being killed himself, or as to his being used as a mere weapon for killing other men?

3. But in still another way, than by its conscriptions, the government denies a man’s right to any will, choice, judgment, or conscience of his own, in regard either to being killed himself, or used as a weapon in its hands for killing other people.

If, in private life, a man enters into a perfectly voluntary agreement to work for another, at some innocent and useful labor, for a day, a week, a month, or a year, he cannot lawfully be compelled to fulfil that contract; because such compulsion would be an acknowledgment of his right to sell his own liberty. And this is what no one can do.

This right of personal liberty is inalienable. No man can sell it, or transfer it to another; or give to another any right of arbitrary dominion over him. All contracts for such a purpose are absurd and void contracts, that no man can rightfully be compelled to fulfil.

But when a deluded or ignorant young man has once been enticed into a contract to kill others, and to take his chances of being killed himself, in the service of the government, for any given number of years, the government holds that such a contract to sell his liberty, his judgment, his conscience, and his life, is a valid and binding contract; and that if he fails to fulfil it, he may rightfully be shot.

All these things prove that the government recognizes no right of the individual, to his own life, or liberty, or to the exercise of his own will, judgment, or conscience, in regard to his killing his fellow-men, or to being killed himself, if the government sees fit to use him as mere war material, in maintaining its arbitrary dominion over other human beings.

4. The government recognizes no such thing as any natural right of property, on the part of individuals.

This is proved by the fact that it takes, for its own uses, any and every man’s property—when it pleases, and as much of it as it pleases—without obtaining, or even asking, his consent.

This taking of a man’s property, without his consent, is a denial of his right of property; for the right of property is the right of supreme, absolute, and irresponsible dominion over anything that is naturally a subject of property,—that is, of [33] ownership. It is a right against all the world. And this right of property—this right of supreme, absolute, and irresponsible dominion over anything that is naturally a subject of ownership—is subject only to this qualification, viz., that each man must so use his own, as not to injure another.

If A uses his own property so as to injure the person or property of B, his own property may rightfully be taken to any extent that is necessary to make reparation for the wrong he has done.

This is the only qualification to which the natural right of property is subject.

When, therefore, a government takes a man’s property, for its own support, or for its own uses, without his consent, it practically denies his right of property altogether; for it practically asserts that its right of dominion is superior to his.

No man can be said to have any right of property at all, in any thing—that is, any right of supreme, absolute, and irresponsible dominion over any thing—of which any other men may rightfully deprive him at their pleasure.

Now, the government of the United States, in asserting its right to take at pleasure the property of individuals, without their consent, virtually denies their right of property altogether, because it asserts that its right of dominion over it, is superior to theirs.

5. The government denies the natural right of human beings to live on this planet. This it does by denying their natural right to those things that are indispensable to the maintenance of life. It says that, for every thing necessary to the maintenance of life, they must have a special permit from the government; and that the government cannot be required to grant them any other means of living than it chooses to grant them.

All this is shown as follows, viz.:

The government denies the natural right of individuals to take possession of wilderness land, and hold and cultivate it for their own subsistence.

It asserts that wilderness land is the property of the government; and that individuals have no right to take possession of, or cultivate, it, unless by special grant of the government. And if an individual attempts to exercise this natural right, the government punishes him as a trespasser and a criminal.

The government has no more right to claim the ownership of wilderness lands, than it has to claim the ownership of the sunshine, the water, or the atmosphere. And it has no more right to punish a man for taking possession of wilderness land, and cultivating it, without the consent of the government, than it has to punish him for breathing the air, drinking the water, or enjoying the sunshine, without a special grant from the government.

In thus asserting the government’s right of property in wilderness land, and in denying men’s right to take possession of and cultivate it, except on first obtaining a grant from the government,—which grant the government may withhold if it pleases,—the government plainly denies the natural right of men to live on this [34] planet, by denying their natural right to the means that are indispensable to their procuring the food that is necessary for supporting life.

In asserting its right of arbitrary dominion over that natural wealth that is indispensable to the support of human life, it asserts its right to withhold that wealth from those whose lives are dependent upon it. In this way it denies the natural right of human beings to live on the planet. It asserts that government owns the planet, and that men have no right to live on it, except by first getting a permit from the government.

This denial of men’s natural right to take possession of and cultivate wilderness land is not altered at all by the fact that the government consents to sell as much land as it thinks it expedient or profitable to sell; nor by the fact that, in certain cases, it gives outright certain lands to certain persons. Notwithstanding these sales and gifts, the fact remains that the government claims the original ownership of the lands; and thus denies the natural right of individuals to take possession of and cultivate them. In denying this natural right of individuals, it denies their natural right to live on the earth; and asserts that they have no other right to life than the government, by its own mere will, pleasure, and discretion, may see fit to grant them.

In thus denying man’s natural right to life, it of course denies every other natural right of human beings; and asserts that they have no natural right to anything; but that, for all other things, as well as for life itself, they must depend wholly upon the good pleasure and discretion of the government.

Section XIII.

In still another way, the government denies men’s natural right to life. And that is by denying their natural right to make any of those contracts with each other, for buying and selling, borrowing and lending, giving and receiving, property, which are necessary, if men are to exist in any considerable numbers on the earth.

Even the few savages, who contrive to live, mostly or wholly, by hunting, fishing, and gathering wild fruits, without cultivating the earth, and almost wholly without the use of tools or machinery, are yet, at times, necessitated to buy and sell, borrow and lend, give and receive, articles of food, if no others, as their only means of preserving their lives. But, in civilized life, where but a small portion of men’s labor is necessary for the production of food, and they employ themselves in an almost infinite variety of industries, and in the production of an almost infinite variety of commodities, it would be impossible for them to live, if they were wholly prohibited from buying and selling, borrowing and lending, giving and receiving, the products of each other’s labor.

Yet the government of the United States—either acting separately, or jointly [35] with the State governments—has heretofore constantly denied, and still constantly denies, the natural right of the people, as individuals, to make their own contracts, for such buying and selling, borrowing and lending, and giving and receiving, such commodities as they produce for each other’s uses.

I repeat that both the national and State governments have constantly denied the natural right of individuals to make their own contracts. They have done this, sometimes by arbitrarily forbidding them to make particular contracts, and sometimes by arbitrarily qualifying the obligations of particular contracts, when the contracts themselves were naturally and intrinsically as just and lawful as any others that men ever enter into; and were, consequently, such as men have as perfect a natural right to make, as they have to make any of those contracts which they are permitted to make.

The laws arbitrarily prohibiting, or arbitrarily qualifying, certain contracts, that are naturally and intrinsically just and lawful, are so numerous, and so well known, that they need not all be enumerated here. But any and all such prohibitions, or qualifications, are a denial of men’s natural right to make their own contracts. They are a denial of men’s right to make any contracts whatever, except such as the governments shall see fit to permit them to make.

It is the natural right of any and all human beings, who are mentally competent to make reasonable contracts, to make any and every possible contract, that is naturally and intrinsically just and honest, for buying and selling, borrowing and lending, giving and receiving, any and all possible commodities, that are naturally vendible, loanable, and transferable, and that any two or more individuals may, at any time, without force or fraud, choose to buy and sell, borrow and lend, give and receive, of and to each other.

And it is plainly only by the untrammelled exercise of this natural right, that all the loanable capital, that is required by men’s industries, can be lent and borrowed, or that all the money can be supplied for the purchase and sale of that almost infinite diversity and amount of commodities, that men are capable of producing, and that are to be transferred from the hands of the producers to those of the consumers.

But the government of the United States—and also the governments of the States—utterly deny the natural right of any individuals whatever to make any contracts whatever, for buying and selling, borrowing and lending, giving and receiving, any and all such commodities, as are naturally vendible, loanable, and transferable, and as the producers and consumers of such commodities may wish to buy and sell, borrow and lend, give and receive, of and to each other.

These governments (State and national) deny this natural right of buying and selling, etc., by arbitrarily prohibiting, or qualifying, all such, and so many, of these contracts, as they choose to prohibit, or qualify.

The prohibition, or qualification, of any one of these contracts—that are intrinsically [36] just and lawful—is a denial of all individual natural right to make any of them. For the right to make any and all of them stands on the same grounds of natural law, natural justice, and men’s natural rights. If a government has the right to prohibit, or qualify, any one of these contracts, it has the same right to prohibit, or qualify, all of them. Therefore the assertion, by the government, of a right to prohibit, or qualify, any one of them, is equivalent to a denial of all natural right, on the part of individuals, to make any of them.

The power that has been thus usurped by governments, to arbitrarily prohibit or qualify all contracts that are naturally and intrinsically just and lawful, has been the great, perhaps the greatest, of all the instrumentalities, by which, in this, as in other countries, nearly all the wealth, accumulated by the labor of the many, has been, and is now, transferred into the pockets of the few.

It is by this arbitrary power over contracts, that the monopoly of money is sustained. Few people have any real perception of the power, which this monopoly gives to the holders of it, over the industry and traffic of all other persons. And the one only purpose of the monopoly is to enable the holders of it to rob everybody else in the prices of their labor, and the products of their labor.

The theory, on which the advocates of this monopoly attempt to justify it, is simply this: That it is not at all necessary that money should be a bona fide equivalent of the labor or property that is to be bought with it; that if the government will but specially license a small amount of money, and prohibit all other money, the holders of the licensed money will then be able to buy with it the labor and property of all other persons for a half, a tenth, a hundredth, a thousandth, or a millionth, of what such labor and property are really and truly worth.

David A. Wells, one of the most prominent—perhaps at this time, the most prominent—advocate of the monopoly, in this country, states the theory thus:

A three-cent piece, if it could be divided into a sufficient number of pieces, with each piece capable of being handled, would undoubtedly suffice for doing all the business of the country in the way of facilitating exchanges, if no other better instrumentality was available.—New York Herald, February 13, 1875.

He means here to say, that “a three-cent piece” contains as much real, true, and natural market value, as it would be necessary that all the money of the country should have, if the government would but prohibit all other money; that is, if the government, by its arbitrary legislative power, would but make all other and better money unavailable.

And this is the theory, on which John Locke, David Hume, Adam Smith, David Ricardo, J. R. McCulloch, and John Stuart Mill, in England, and Amasa Walker, Charles H. Carroll, Hugh McCulloch, in this country, and all the other conspicuous advocates of the monopoly, both in this country and in England, have attempted to justify it. They have all held that it was not necessary that money should be [37] a bona fide equivalent of the labor or property to be bought with it; but that, by the prohibition of all other money, the holders of a comparatively worthless amount of licensed money would be enabled to buy, at their own prices, the labor and property of all other men.

And this is the theory on which the governments of England and the United States have always, with immaterial exceptions, acted, in prohibiting all but such small amounts of money as they (the governments) should specially license. And it is the theory upon which they act now. And it is so manifestly a theory of pure robbery, that scarce a word can be necessary to make it more evidently so than it now is.

But inasmuch as your mind seems to be filled with the wildest visions of the excellency of this government, and to be strangely ignorant of its wrongs; and inasmuch as this monopoly of money is, in its practical operation, one of the greatest—possibly the greatest—of all these wrongs, and the one that is most relied upon for robbing the great body of the people, and keeping them in poverty and servitude, it is plainly important that you should have your eyes opened on the subject. I therefore submit, for your consideration, the following self-evident propositions:

1. That to make all traffic just and equal, it is indispensable that, in each separate purchase and sale, the money paid should be a bona fide equivalent of the labor or property bought with it.

Dare you, or any other man, of common sense and common honesty, dispute the truth of that proposition? If not, let us consider that principle established. It will then serve as one of the necessary and infallible guides to the true settlement of all the other questions that remain to be settled.

2. That so long as no force or fraud is practised by either party, the parties themselves, to each separate contract, have the sole, absolute, and unqualified right to decide for themselves, what money, and how much of it, shall be considered a bona fide equivalent of the labor or property that is to be exchanged for it. All this is necessarily implied in the natural right of men to make their own contracts, for buying and selling their respective commodities.

Will you dispute the truth of that proposition?

3. That any one man, who has an honest dollar, of any kind whatsoever, has as perfect a right, as any other man can have, to offer it in the market, in competition with any and all other dollars, in exchange for such labor or property as may be in the market for sale.

Will you dispute the truth of that proposition?

4. That where no fraud is practised, every person, who is mentally competent to make reasonable contracts, must be presumed to be as competent to judge of the value of the money that is offered in the market, as he is to judge of the value of all the other commodities that are bought and sold for money.

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Will you dispute the truth of that proposition?

5. That the free and open market, in which all honest money and all honest commodities are free to be given and received in exchange for each other, is the true, final, absolute, and only test of the true and natural market value of all money, as of all the other commodities that are bought and sold for money.

Will you dispute the truth of that proposition?

6. That any prohibition, by a government, of any such kind or amount of money—provided it be honest in itself—as the parties to contracts may voluntarily agree to give and receive in exchange for labor or property, is a palpable violation of their natural right to make their own contracts, and to buy and sell their labor and property on such terms as they may find to be necessary for the supply of their wants, or may think most beneficial to their interests.

Will you dispute the truth of that proposition?

7. That any government, that licenses a small amount of an article of such universal necessity as money, and that gives the control of it into a few hands, selected by itself, and then prohibits any and all other money—that is intrinsically honest and valuable—palpably violates all other men’s natural right to make their own contracts, and infallibly proves its purpose to be to enable the few holders of the licensed money to rob all other persons in the prices of their labor and property.

Will you dispute the truth of that proposition?

Are not all these propositions so self-evident, or so easily demonstrated, that they cannot, with any reason, be disputed?

If you feel competent to show the falsehood of any one of them, I hope you will attempt the task.

Section XIV.

If, now, you wish to form some rational opinion of the extent of the robbery practised in this country, by the holders of this monopoly of money, you have only to look at the following facts.

There are, in this country, I think, at least twenty-five millions of persons, male and female, sixteen years old, and upwards, mentally and physically capable of running machinery, producing wealth, and supplying their own needs for an independent and comfortable subsistence.

To make their industry most effective, and to enable them, individually, to put into their own pockets as large a portion as possible of their own earnings, they need, on an average, one thousand dollars each of money capital. Some need one, two, three, or five hundred dollars, others one, two, three, or five thousand. These persons, then, need, in the aggregate, twenty-five thousand millions of dollars ($25,000,000,000), of money capital.

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They need all this money capital to enable them to buy the raw materials upon which to bestow their labor, the implements and machinery with which to labor, and their means of subsistence while producing their goods for the market.

Unless they can get this capital, they must all either work at a disadvantage, or not work at all. A very large portion of them, to save themselves from starvation, have no alternative but to sell their labor to others, at just such prices as these others choose to pay. And these others choose to pay only such prices as are far below what the laborers could produce, if they themselves had the necessary capital to work with.

But this needed capital your lawmakers arbitrarily forbid them to have; and for no other reason than to reduce them to the condition of servants; and subject them to all such extortions as their employers—the holders of the privileged money—may choose to practise upon them.

If, now, you ask me where these twenty-five thousand millions of dollars of money capital, which these laborers need, are to come from, I answer:

Theoretically there are, in this country, fifty thousand millions of dollars of money capital ($50,000,000,000)—or twice as much as I have supposed these laborers to need—now lying idle! And it is lying idle, solely because the circulation of it, as money, is prohibited by the lawmakers.

If you ask how this can be, I will tell you.

Theoretically, every dollar’s worth of material property, that is capable of being taken by law, and applied to the payment of the owner’s debts, is capable of being represented by a promissory note, that shall circulate as money.

But taking all this material property at only half its actual value, it is still capable of supplying the twenty-five thousand millions of dollars—or one thousand dollars each—which these laborers need.

Now, we know—because experience has taught us—that solvent promissory notes, made payable in coin on demand, are the best money that mankind have ever had; (although probably not the best they ever will have).

To make a note solvent, and suitable for circulation as money, it is only necessary that it should be made payable in coin on demand, and be issued by a person, or persons, who are known to have in their hands abundant material property, that can be taken by law, and applied to the payment of the note, with all costs and damages for non-payment on demand.

Theoretically, I repeat, all the material property in the country, that can be taken by law, and applied to the payment of debts, can be used as banking capital; and be represented by promissory notes, made payable in coin on demand. And, practically, so much of it can be used as banking capital as may be required for supplying all the notes that can be kept in circulation as money.

Although these notes are made legally payable in coin on demand, it is seldom that such payment is demanded, if only it be publicly known that the notes are solvent: [40] that is, if it be publicly known that they are issued by persons who have so much material property, that can be taken by law, and sold, as may be necessary to bring the coin that is needed to pay the notes. In such cases, the notes are preferred to the coin, because they are so much more safe and convenient for handling, counting, and transportation, than is the coin; and also because we can have so many times more of them.

These notes are also a legal tender, to the banks that issue them, in payment of the notes discounted; that is, in payment of the notes given by the borrowers to the banks. And, in the ordinary course of things, all the notes, issued by the banks for circulation, are wanted, and come back to the banks, in payment of the notes discounted; thus saving all necessity for redeeming them with coin, except in rare cases. For meeting these rare cases, the banks find it necessary to keep on hand small amounts of coin; probably not more than one per cent. of the amount of notes in circulation.

As the notes discounted have usually but a short time to run,—say three months on an average,—the bank notes issued for circulation will all come back, on an average, once in three months, and be redeemed by the bankers, by being accepted in payment of the notes discounted.

Then the bank notes will be re-issued, by discounting new notes, and will go into circulation again; to be again brought back, at the end of another three months, and redeemed, by being accepted in payment of the new notes discounted.

In this way the bank notes will be continually re-issued, and redeemed, in the greatest amounts that can be kept in circulation long enough to earn such an amount of interest as will make it an object for the bankers to issue them.

Each of these notes, issued for circulation, if known to be solvent, will always have the same value in the market, as the same nominal amount of coin. And this value is a just one, because the notes are in the nature of a lien, or mortgage, upon so much property of the bankers as is necessary to pay the notes, and as can be taken by law, and sold, and the proceeds applied to their payment.

There is no danger that any more of these notes will be issued than will be wanted for buying and selling property at its true and natural market value, relatively to coin; for as the notes are all made legally payable in coin on demand, if they should ever fall below the value of coin in the market, the holders of them will at once return them to the banks, and demand coin for them; and thus take them out of circulation.

The bankers, therefore, have no motive for issuing more of them than will remain long enough in circulation, to earn so much interest as will make it an object to issue them; the only motive for issuing them being to draw interest on them while they are in circulation.

The bankers readily find how many are wanted for circulation, by the time those issued remain in circulation, before coming back for redemption. If they [41] come back immediately, or very quickly, after being issued, the bankers know that they have over-issued, and that they must therefore pay in coin—to their inconvenience, and perhaps loss—notes that would otherwise have remained in circulation long enough to earn so much interest as would have paid for issuing them; and would then have come back to them in payment of notes discounted, instead of coming back on a demand for redemption in coin.

Now, the best of all possible banking capital is real estate. It is the best, because it is visible, immovable, and indestructible. It cannot, like coin, be removed, concealed, or carried out of the country. And its aggregate value, in all civilized countries, is probably a hundred times greater than the amount of coin in circulation. It is therefore capable of furnishing a hundred times as much money as we can have in coin.

The owners of this real estate have the greatest inducements to use it as banking capital, because all the banking profit, over and above expenses, is a clear profit; inasmuch as the use of the real estate as banking capital does not interfere at all with its use for other purposes.

Farmers have a double, and much more than a double, inducement to use their lands as banking capital; because they not only get a direct profit from the loan of their notes, but, by loaning them, they furnish the necessary capital for the greatest variety of manufacturing purposes. They thus induce a much larger portion of the people, than otherwise would, to leave agriculture, and engage in mechanical employments; and thus become purchasers, instead of producers, of agricultural commodities. They thus get much higher prices for their agricultural products, and also a much greater variety and amount of manufactured commodities in exchange.

The amount of money, capable of being furnished by this system, is so great that every man, woman, and child, who is worthy of credit, could get it, and do business for himself, or herself—either singly, or in partnerships—and be under no necessity to act as a servant, or sell his or her labor to others. All the great establishments, of every kind, now in the hands of a few proprietors, but employing a great number of wage laborers, would be broken up; for few, or no persons, who could hire capital, and do business for themselves, would consent to labor for wages for another.

The credit furnished by this system would always be stable; for the system is probably capable of furnishing, at all times, all the credit, and all the money, that can be needed. It would also introduce a substantially universal system of cash payments. Everybody, who could get credit at all, would be able to get it at bank, in money. With the money, he would buy everything he needed for cash. He would also sell everything for cash; for when everybody buys for cash, everybody sells for cash; since buying for cash, and selling for cash, are necessarily one and the same thing.

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We should, therefore, never have another crisis, panic, revulsion of credit, stagnation of industry, or fall of prices; for these are all caused by the lack of money, and the consequent necessity of buying and selling on credit; whereby the amount of indebtedness becomes so great, so enormous, in fact, in proportion to the amount of money extant, with which to meet it, that the whole system of credit breaks down; to the ruin of everybody, except the few holders of the monopoly of money, who reap a harvest in the fall of prices, and the consequent bankruptcy of everybody who is dependent on credit for his means of doing business.

It would be inadmissible for me, in this letter, to occupy the space that would be necessary, to expose all the false, absurd, and ridiculous pretences, by which the advocates of the monopoly of money have attempted to justify it. The only real argument they ever employed has been that, by means of the monopoly, the few holders of it were enabled to rob everybody else in the prices of their labor and property.

And our governments, State and national, have hitherto acted together in maintaining this monopoly, in flagrant violation of men’s natural right to make their own contracts, and in flagrant violation of the self-evident truth, that, to make all traffic just and equal, it is indispensable that the money paid should be, in all cases, a bona fide equivalent of the labor or property that is bought with it.

The holders of this monopoly now rule and rob this nation; and the government, in all its branches, is simply their tool. And being their tool for this gigantic robbery, it is equally their tool for all the lesser robberies, to which it is supposed that the people at large can be made to submit.

Section XV.

But although the monopoly of money is one of the most glaring violations of men’s natural right to make their own contracts, and one of the most effective—perhaps the most effective—for enabling a few men to rob everybody else, and for keeping the great body of the people in poverty and servitude, it is not the only one that our government practises, nor the only one that has the same robbery in view.

The so-called taxes or duties, which the government levies upon imports, are a practical violation both of men’s natural right of property, and of their natural right to make their own contracts.

A man has the same natural right to traffic with another, who lives on the opposite side of the globe, as he has to traffic with his next-door neighbor. And any obstruction, price, or penalty, interposed by the government, to the exercise of that right, is a practical violation of the right itself.

The ten, twenty, or fifty per cent. of a man’s property, which is taken from him, for the reason that he purchased it in a foreign country, must be considered either [43] as the price he is required to pay for the privilege of buying property in that country, or else as a penalty for having exercised his natural right of buying it in that country. Whether it be considered as a price paid for a privilege, or a penalty for having exercised a natural right, it is a violation both of his natural right of property, and of his natural right to make a contract in that country.

In short, it is nothing but downright robbery.

And when a man seeks to avoid this robbery, by evading the government robbers who are lying in wait for him,—that is, the so-called revenue officers,—whom he has as perfect a right to evade, as he has to evade any other robbers, who may be lying in wait for him,—the seizure of his whole property,—instead of the ten, twenty, or fifty per cent. that would otherwise have been taken from him,—is not merely adding so much to the robbery itself, but is adding insult to the robbery. It is punishing a man as a criminal, for simply trying to save his property from robbers.

But it will be said that these taxes or duties are laid to raise revenue for the support of the government.

Be it so, for the sake of the argument. All taxes, levied upon a man’s property for the support of government, without his consent, are mere robbery; a violation of his natural right of property. And when a government takes ten, twenty, or fifty per cent. of a man’s property, for the reason that he bought it in a foreign country, such taking is as much a violation of his natural right of property, or of his natural right to purchase property, as is the taking of property which he has himself produced, or which he has bought in his own village.

A man’s natural right of property, in a commodity he has bought in a foreign country, is intrinsically as sacred and inviolable as it is in a commodity produced at home. The foreign commodity is bought with the commodity produced at home; and therefore stands on the same footing as the commodity produced at home. And it is a plain violation of one’s right, for a government to make any distinction between them.

Government assumes to exist for the impartial protection of all rights of property. If it really exists for that purpose, it is plainly bound to make each kind of property pay its proper proportion, and only its proper proportion, of the cost of protecting all kinds. To levy upon a few kinds the cost of protecting all, is a naked robbery of the holders of those few kinds, for the benefit of the holders of all other kinds.

But the pretence that heavy taxes are levied upon imports, solely, or mainly, for the support of government, while light taxes, or no taxes at all, are levied upon property at home, is an utterly false pretence. They are levied upon the imported commodity, mainly, if not solely, for the purpose of enabling the producers of competing home commodities to extort from consumers a higher price than the home commodities would bring in free and open market. And this additional [44] price is sheer robbery, and is known to be so. And the amount of this robbery—which goes into the pockets of the home producers—is five, ten, twenty, or fifty times greater than the amount that goes into the treasury, for the support of the government, according as the amount of the home commodities is five, ten, twenty, or fifty times greater than the amount of the imported competing commodities.

Thus the amounts that go to the support of the government, and also the amounts that go into the pockets of the home producers, in the higher prices they get for their goods, are all sheer robberies; and nothing else.

But it will be said that the heavy taxes are levied upon the foreign commodity, not to put great wealth into a few pockets, but “to protect the home laborer against the competition of the pauper labor of other countries.”

This is the great argument that is relied on to justify the robbery.

This argument must have originated with the employers of home labor, and not with the home laborers themselves.

The home laborers themselves could never have originated it, because they must have seen that, so far as they were concerned, the object of the “protection,” so-called, was, at best, only to benefit them, by robbing others who were as poor as themselves, and who had as good a right as themselves to live by their labor. That is, they must have seen that the object of the “protection” was to rob the foreign laborers, in whole, or in part, of the pittances on which they were already necessitated to live; and, secondly, to rob consumers at home,—in the increased prices of the protected commodities,—when many or most of these home consumers were also laborers as poor as themselves.

Even if any class of laborers would have been so selfish and dishonest as to wish to thus benefit themselves by injuring others, as poor as themselves, they could have had no hope of carrying through such a scheme, if they alone were to profit by it; because they could have had no such influence with governments, as would be necessary to enable them to carry it through, in opposition to the rights and interests of consumers, both rich and poor, and much more numerous than themselves.

For these reasons it is plain that the argument originated with the employers of home labor, and not with the home laborers themselves.

And why do the employers of home labor advocate this robbery? Certainly not because they have such an intense compassion for their own laborers, that they are willing to rob everybody else, rich and poor, for their benefit. Nobody will suspect them of being influenced by any such compassion as that. But they advocate it solely because they put into their own pockets a very large portion certainly—probably three-fourths, I should judge—of the increased prices their commodities are thus made to bring in the market. The home laborers themselves probably get not more than one-fourth of these increased prices.

Thus the argument for “protection” is really an argument for robbing foreign [45] laborers—as poor as our own—of their equal and rightful chances in our markets; and also for robbing all the home consumers of the protected article—the poor as well as the rich—in the prices they are made to pay for it. And all this is done at the instigation, and principally for the benefit, of the employers of home labor, and not for the benefit of the home laborers themselves.

Having now seen that this argument—of “protecting our home laborers against the competition of the pauper labor of other countries”—is, of itself, an utterly dishonest argument; that it is dishonest towards foreign laborers and home consumers; that it must have originated with the employers of home labor, and not with the home laborers themselves; and that the employers of home labor, and not the home laborers themselves, are to receive the principal profits of the robbery, let us now see how utterly false is the argument itself.

1. The pauper laborers (if there are any such) of other countries have just as good a right to live by their labor, and have an equal chance in our own markets, and in all the markets of the world, as have the pauper laborers, or any other laborers, of our own country.

Every human being has the same natural right to buy and sell, of and to, any and all other people in the world, as he has to buy and sell, of and to, the people of his own country. And none but tyrants and robbers deny that right. And they deny it for their own benefit solely, and not for the benefit of their laborers.

And if a man, in our own country—either from motives of profit to himself, or from motives of pity towards the pauper laborers of other countries—chooses to buy the products of the foreign pauper labor, rather than the products of the laborers of his own country, he has a perfect legal right to do so. And for any government to forbid him to do so, or to obstruct his doing so, or to punish him for doing so, is a violation of his natural right of purchasing property of whom he pleases, and from such motives as he pleases.

2. To forbid our own people to buy in the best markets, is equivalent to forbidding them to sell the products of their own labor in the best markets; for they can buy the products of foreign labor, only by giving the products of their own labor in exchange. Therefore to deny our right to buy in foreign markets, is to forbid us to sell in foreign markets. And this is a plain violation of men’s natural rights.

If, when a producer of cotton, tobacco, grain, beef, pork, butter, cheese, or any other commodity, in our own country, has carried it abroad, and exchanged it for iron or woolen goods, and has brought these latter home, the government seizes one-half of them, because they were manufactured abroad, the robbery committed upon the owner is the same as if the government had seized one-half of his cotton, tobacco, or other commodity, before he exported it; because the iron or woolen goods, which he purchased abroad with the products of his own home labor, are as much his own property, as was the commodity with which he purchased them.

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Therefore the tax laid upon foreign commodities, that have been bought with the products of our home labor, is as much a robbery of the home laborer, as the same tax would have been, if laid directly upon the products of our home labor. It is, at best, only a robbery of one home laborer—the producer of cotton, tobacco, grain, beef, pork, butter, or cheese—for the benefit of another home laborer—the producer of iron or woolen goods.

3. But this whole argument is a false one, for the further reason that our home laborers do not have to compete with “the pauper labor” of any country on earth; since the actual paupers of no country on earth are engaged in producing commodities for export to any other country. They produce few, or no, other commodities than those they themselves consume; and ordinarily not even those.

There are a great many millions of actual paupers in the world. In some of the large provinces of British India, for example, it is said that nearly half the population are paupers. But I think that the commodities they are producing for export to other countries than their own, have never been heard of.

The term, “pauper labor,” is therefore a false one. And when these robbers—the employers of home labor—talk of protecting their laborers against the competition of “the pauper labor” of other countries, they do not mean that they are protecting them against the competition of actual paupers; but only against the competition of that immense body of laborers, in all parts of the world, who are kept constantly on the verge of pauperism, or starvation; who have little, or no, means of subsistence, except such as their employers see fit to give them,—which means are usually barely enough to keep them in a condition to labor.

These are the only “pauper laborers,” from whose competition our own laborers are sought to be protected. They are quite as badly off as our own laborers; and are in equal need of “protection.”

What, then, is to be done? This policy of excluding foreign commodities from our markets, is a game that all other governments can play at, as well as our own. And if it is the duty of our government to “protect” our laborers against the competition of “the pauper labor,” so-called, of all other countries, it is equally the duty of every other government to “protect” its laborers against the competition of the so-called “pauper labor” of all other countries. So that, according to this theory, each nation must either shut out entirely from its markets the products of all other countries; or, at least, lay such heavy duties upon them, as will, in some measure, “protect” its own laborers from the competition of the “pauper labor” of all other countries.

This theory, then, is that, instead of permitting all mankind to supply each other’s wants, by freely exchanging their respective products with each other, the government of each nation should rob the people of every other, by imposing heavy duties upon all commodities imported from them.

The natural effect of this scheme is to pit the so-called “pauper labor” of each [47] country against the so-called “pauper labor” of every other country; and all for the benefit of their employers. And as it holds that so-called “pauper labor” is cheaper than free labor, it gives the employers in each country a constant motive for reducing their own laborers to the lowest condition of poverty, consistent with their ability to labor at all. In other words, the theory is, that the smaller the portion of the products of labor, that is given to the laborers, the larger will be the portion that will go into the pockets of the employers.

Now, it is not a very honorable proceeding for any government to pit its own so-called “pauper laborers”—or laborers that are on the verge of pauperism—against similar laborers in all other countries: and all for the sake of putting the principal proceeds of their labor into the pockets of a few employers.

To set two bodies of “pauper laborers”—or of laborers on the verge of pauperism—to robbing each other, for the profit of their employers, is the next thing, in point of atrocity, to setting them to killing each other, as governments have heretofore been in the habit of doing, for the benefit of their rulers.

The laborers, who are paupers, or on the verge of pauperism—who are destitute, or on the verge of destitution—comprise (with their families) doubtless nine-tenths, probably nineteen-twentieths, of all the people on the globe. They are not all wage laborers. Some of them are savages, living only as savages do. Others are barbarians, living only as barbarians do. But an immense number are mere wage laborers. Much the larger portion of these have been reduced to the condition of wage laborers, by the monopoly of land, which mere bands of robbers have succeeded in securing for themselves by military power. This is the condition of nearly all the Asiatics, and of probably one-half the Europeans. But in those portions of Europe and the United States, where manufactures have been most extensively introduced, and where, by science and machinery, great wealth has been created, the laborers have been kept in the condition of wage laborers, principally, if not wholly, by the monopoly of money. This monopoly, established in all these manufacturing countries, has made it impossible for the manufacturing laborers to hire the money capital that was necessary to enable them to do business for themselves; and has consequently compelled them to sell their labor to the monopolists of money, for just such prices as these latter should choose to give.

It is, then, by the monopoly of land, and the monopoly of money, that more than a thousand millions of the earth’s inhabitants—as savages, barbarians, and wage laborers—are kept in a state of destitution, or on the verge of destitution. Hundreds of millions of them are receiving, for their labor, not more than three, five, or, at most, ten cents a day.

In western Europe, and in the United States, where, within the last hundred and fifty years, machinery has been introduced, and where alone any considerable wealth is now created, the wage laborers, although they get so small a portion of the wealth they create, are nevertheless in a vastly better condition than are the laboring classes in other parts of the world.

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If, now, the employers of wage labor, in this country,—who are also the monopolists of money,—and who are ostensibly so distressed lest their own wage laborers should suffer from the competition of the pauper labor of other countries,—have really any of that humanity, of which they make such profession, they have before them a much wider field for the display of it, than they seem to desire. That is to say, they have it in their power, not only to elevate immensely the condition of the laboring classes in this country, but also to set an example that will be very rapidly followed in all other countries; and the result will be the elevation of all oppressed laborers throughout the world. This they can do, by simply abolishing the monopoly of money. The real producers of wealth, with few or no exceptions, will then be able to hire all the capital they need for their industries, and will do business for themselves. They will also be able to hire their capital at very low rates of interest; and will then put into their own pockets all the proceeds of their labor, except what they pay as interest on their capital. And this amount will be too small to obstruct materially their rise to independence and wealth.

Section XVI.

But will the monopolists of money give up their monopoly? Certainly not voluntarily. They will do it only upon compulsion. They will hold on to it as long as they own and control governments as they do now. And why will they do so? Because to give up their monopoly would be to give up their control of those great armies of servants—the wage laborers—from whom all their wealth is derived, and whom they can now coerce by the alternative of starvation, to labor for them at just such prices as they (the monopolists of money) shall choose to pay.

Now these monopolists of money have no plans whatever for making their “capital,” as they call it—that is, their money capital—their privileged money capital—profitable to themselves, otherwise than by using it to employ other men’s labor. And they can keep control of other men’s labor only by depriving the laborers themselves of all other means of subsistence. And they can deprive them of all other means of subsistence only by putting it out of their power to hire the money that is necessary to enable them to do business for themselves. And they can put it out of their power to hire money, only by forbidding all other men to lend them their credit, in the shape of promissory notes, to be circulated as money.

If the twenty-five or fifty thousand millions of loanable capital—promissory notes—which, in this country, are now lying idle, were permitted to be loaned, these wage laborers would hire it, and do business for themselves, instead of laboring as servants for others; and would of course retain in their own hands all the wealth they should create, except what they should pay as interest for their capital.

And what is true of this country, is true of every other where civilization exists; for wherever civilization exists, land has value, and can be used as banking capital, [49] and be made to furnish all the money that is necessary to enable the producers of wealth to hire the capital necessary for their industries, and thus relieve them from their present servitude to the few holders of privileged money.

Thus it is that the monopoly of money is the one great obstacle to the liberation of the laboring classes all over the world, and to their indefinite progress in wealth.

But we are now to show, more definitely, what relation this monopoly of money is made to bear to the freedom of international trade; and why it is that the holders of this monopoly, in this country, demand heavy tariffs on imports, on the lying pretence of protecting our home labor against the competition of the so-called pauper labor of other countries.

The explanation of the whole matter is as follows.

1. The holders of the monopoly of money, in each country,—more especially in the manufacturing countries like England, the United States, and some others,—assume that the present condition of poverty, for the great mass of mankind, all over the world, is to be perpetuated forever; or at least for an indefinite period. From this assumption they infer that, if free trade between all countries is to be allowed, the so-called pauper labor of each country is to be forever pitted against the so-called pauper labor of every other country. Hence they infer that it is the duty of each government—or certainly of our government—to protect the so-called pauper labor of our own country—that is, the class of laborers who are constantly on the verge of pauperism—against the competition of the so-called pauper labor of all other countries, by such duties on imports as will secure to our own laborers a monopoly of our own home market.

This is, on the face of it, the most plausible argument—and almost, if not really, the only argument—by which they now attempt to sustain their restrictions upon international trade.

If this argument is a false one, their whole case falls to the ground. That it is a false one, will be shown hereafter.

2. These monopolists of money assume that pauper labor, so-called, is the cheapest labor in the world; and that therefore each nation, in order to compete with the pauper labor of all other nations, must itself have “cheap labor.” In fact, “cheap labor” is, with them, the great sine qua non of all national industry. To compete with “cheap labor,” say they, we must have “cheap labor.” This is, with them, a self-evident proposition. And this demand for “cheap labor” means, of course, that the laboring classes, in this country, must be kept, as nearly as possible, on a level with the so-called pauper labor of all other countries.

Thus their whole scheme of national industry is made to depend upon “cheap labor.” And to secure “cheap labor.” they hold it to be indispensable that the laborers shall be kept constantly either in actual pauperism, or on the verge of pauperism. And, in this country, they know of no way of keeping the laborers on the [50] verge of pauperism, but by retaining in their (the monopolists’) own hands such a monopoly of money as will put it out of the power of the laborers to hire money, and do business for themselves; and thus compel them, by the alternative of starvation, to sell their labor to the monopolists of money at such prices as will enable them (the monopolists) to manufacture goods in competition with the so-called pauper laborers of all other countries.

Let it be repeated—as a vital proposition—that the whole industrial programme of these monopolists rests upon, and implies, such a degree of poverty, on the part of the laboring classes, as will put their labor in direct competition with the so-called pauper labor of all other countries. So long as they (the monopolists) can perpetuate this extreme poverty of the laboring classes, in this country, they feel safe against all foreign competition; for, in all other things than “cheap labor,” we have advantages equal to those of any other nation.

Furthermore, this extreme poverty, in which the laborers are to be kept, necessarily implies that they are to receive no larger share of the proceeds of their own labor, than is necessary to keep them in a condition to labor. It implies that their industry—which is really the national industry—is not to be carried on at all for their own benefit, but only for the benefit of their employers, the monopolists of money. It implies that the laborers are to be mere tools and machines in the hands of their employers; that they are to be kept simply in running order, like other machinery; but that, beyond this, they are to have no more rights, and no more interests, in the products of their labor, than have the wheels, spindles, and other machinery, with which the work is done.

In short, this whole programme implies that the laborers—the real producers of wealth—are not to be considered at all as human beings, having rights and interests of their own; but only as tools and machines, to be owned, used, and consumed in producing such wealth as their employers—the monopolists of money—may desire for their own subsistence and pleasure.

What, then, is the remedy? Plainly it is to abolish the monopoly of money. Liberate all this loanable capital—promissory notes—that is now lying idle, and we liberate all labor, and furnish to all laborers all the capital they need for their industries. We shall then have no longer, all over the earth, the competition of pauper labor with pauper labor, but only the competition of free labor with free labor. And from this competition of free labor with free labor, no people on earth have anything to fear, but all peoples have everything to hope.

And why have all peoples everything to hope from the competition of free labor with free labor? Because when every human being, who labors at all, has, as nearly as possible, all the fruits of his labor, and all the capital that is necessary to make his labor most effective, he has all needed inducements to the best use of both his brains and his muscles, his head and his hands. He applies both his head and his hands to his work. He not only acquires, as far as possible, for his own use, all the [51] scientific discoveries and mechanical inventions, that are made by others, but he himself makes scientific discoveries and mechanical inventions. He thus multiplies indefinitely his powers of production. And the more each one produces of his own particular commodity, the more he can buy of every other man’s products, and the more he can pay for them.

With freedom in money, the scientific discoveries and mechanical inventions, made in each country, will not only be used to the utmost in that country, but will be carried into all other countries. And these discoveries and inventions, given by each country to every other, and received by each country from every other, will be of infinitely more value than all the material commodities that will be exchanged between these countries.

In this way each country contributes to the wealth of every other, and the whole human race are enriched by the increased power and stimulus given to each man’s labor of body and mind.

But it is to be kept constantly in mind, that there can be no such thing as free labor, unless there be freedom in money; that is, unless everybody, who can furnish money, shall be at liberty to do so. Plainly labor cannot be free, unless the laborers are free to hire all the money capital that is necessary for their industries. And they cannot be free to hire all this money capital, unless all who can lend it to them, shall be at liberty to do so.

In short, labor cannot be free, unless each laborer is free to hire all the capital—money capital, as well as all other capital—that he honestly can hire; free to buy, wherever he can buy, all the raw material he needs for his labor; and free to sell, wherever he can sell, all the products of his labor. Therefore labor cannot be free, unless we have freedom in money, and free trade with all mankind.

We can now understand the situation. In the most civilized nations—such as Western Europe and the United States—labor is utterly crippled, robbed, and enslaved by the monopoly of money; and also, in some of these countries, by the monopoly of land. In nearly or quite all the other countries of the world, labor is not only robbed and enslaved, but to a great extent paralyzed, by the monopoly of land, and by what may properly be called the utter absence of money. There is, consequently, in these latter countries, almost literally, no diversity of industry, no science, no skill, no invention, no machinery, no manufactures, no production, and no wealth; but everywhere miserable poverty, ignorance, servitude, and wretchedness.

In this country, and in Western Europe, where the uses of money are known, there is no excuse to be offered for the monopoly of money. It is maintained, in each of these countries, by a small knot of tyrants and robbers, who have got control of the governments, and use their power principally to maintain this monopoly; understanding, as they do, that this one monopoly of money gives them a substantially absolute control of all other men’s property and labor.

But not satisfied with this substantially absolute control of all other men’s property [52] and labor, the monopolists of money, in this country,—feigning great pity for their laborers, but really seeking only to make their monopoly more profitable to themselves,—cry out for protection against the competition of the pauper labor of all other countries; when they alone, and such as they, are the direct cause of all the pauper labor in the world. But for them, and others like them, there would be neither poverty, ignorance, nor servitude on the face of the earth.

But to all that has now been said, the advocates of the monopoly of money will say that, if all the material property of the country were permitted to be represented by promissory notes, and these promissory notes were permitted to be lent, bought, and sold as money, the laborers would not be able to hire them, for the reason that they could not give the necessary security for repayment.

But let those who would say this, tell us why it is that, in order to prevent men from loaning their promissory notes, for circulation as money, it has always been necessary for governments to prohibit it, either by penal enactments, or prohibitory taxation. These penal enactments and prohibitory taxation are acknowledgments that, but for them, the notes would be loaned to any extent that would be profitable to the lenders. What this extent would be, nothing but experience of freedom can determine. But freedom would doubtless give us ten, twenty, most likely fifty, times as much money as we have now, if so much could be kept in circulation. And laborers would at least have ten, twenty, or fifty times better chances for hiring capital, than they have now. And, furthermore, all labor and property would have ten, twenty, or fifty times better chances of bringing their full value in the market, than they have now.

But in the space that is allowable in this letter, it is impossible to say all, or nearly all, of what might be said, to show the justice, the utility, or the necessity, for perfect freedom in the matters of money and international trade. To pursue these topics further would exclude other matters of great importance, as showing how the government acts the part of robber and tyrant in all its legislation on contracts; and that the whole purpose of all its acts is that the earnings of the many may be put into the pockets of the few.

Section XVII.

Although, as has already been said, the constitution is a paper that nobody ever signed, that few persons have ever read, and that the great body of the people never saw; and that has, consequently, no more claim to be the supreme law of the land, or to have any authority whatever, than has any other paper, that nobody ever signed, that few persons ever read, and that the great body of the people never saw; and although it purports to authorize a government, in which the lawmakers, judges, and executive officers are all to be secured against any responsibility whatever to the people, whose liberty and rights are at stake; and although [53] this government is kept in operation only by votes given in secret (by secret ballot), and in a way to save the voters from all personal responsibility for the acts of their agents,—the lawmakers, judges, etc.; and although the whole affair is so audacious a fraud and usurpation, that no people could be expected to agree to it, or ought to submit to it, for a moment; yet, inasmuch as the constitution declares itself to have been ordained and established by the people of the United States, for the maintenance of liberty and justice for themselves and their posterity; and inasmuch as all its supporters—that is, the voters, lawmakers, judges, etc.—profess to derive all their authority from it; and inasmuch as all lawmakers, and all judicial and executive officers, both national and State, swear to support it; and inasmuch as they claim the right to kill, and are evidently determined to kill, and esteem it the highest glory to kill, all who do not submit to its authority; we might reasonably expect that, from motives of common decency, if from no other, those who profess to administer it, would pay some deference to its commands, at least in those particular cases where it explicitly forbids any violation of the natural rights of the people.

Especially might we expect that the judiciary—whose courts claim to be courts of justice—and who profess to be authorized and sworn to expose and condemn all such violations of individual rights as the constitution itself expressly forbids—would, in spite of all their official dependence on, and responsibility to, the lawmakers, have sufficient respect for their personal characters, and the opinions of the world, to induce them to pay some regard to all those parts of the constitution that expressly require any rights of the people to be held inviolable.

If the judicial tribunals cannot be expected to do justice, even in those cases where the constitution expressly commands them to do it, and where they have solemnly sworn to do it, it is plain that they have sunk to the lowest depths of servility and corruption, and can be expected to do nothing but serve the purposes of robbers and tyrants.

But how futile have been all expectations of justice from the judiciary, may be seen in the conduct of the courts—and especially in that of the so-called Supreme Court of the United States—in regard to men’s natural right to make their own contracts.

Although the State lawmakers have, more frequently than the national lawmakers, made laws in violation of men’s natural right to make their own contracts, yet all laws, State and national, having for their object the destruction of that right, have always, without a single exception, I think, received the sanction of the Supreme Court of the United States. And having been sanctioned by that court, they have been, as a matter of course, sanctioned by all the other courts, State and national. And this work has gone on, until, if these courts are to be believed, nothing at all is left of men’s natural right to make their own contracts.

That such is the truth, I now propose to prove.

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And, first, as to the State governments.

The constitution of the United States (Art. 1, Sec. 10) declares that:

No State shall pass any law impairing the obligation of contracts.

This provision does not designate what contracts have, and what have not, an “obligation.” But it clearly presupposes, implies, assumes, and asserts that there are contracts that have an “obligation.” Any State law, therefore, which declares that such contracts shall have no obligation, is plainly in conflict with this provision of the constitution of the United States.

This provision, also, by implying that there are contracts, that have an “obligation,” necessarily implies that men have a right to enter into them; for if men had no right to enter into the contracts, the contracts themselves could have no “obligation.”

This provision, then, of the constitution of the United States, not only implies that there are contracts that have an obligation, but it also implies that the people have the right to enter into all such contracts, and have the benefit of them. And “any” State “law,” conflicting with either of these implications, is necessarily unconstitutional and void.

Furthermore, the language of this provision of the constitution, to wit, “the obligation [singular] of contracts” [plural], implies that there is one and the same “obligation” to all “contracts” whatsoever, that have any legal obligation at all. And there obviously must be some one principle, that gives validity to all contracts alike, that have any validity.

The law, then, of this whole country, as established by the constitution of the United States, is, that all contracts whatsoever, in which this one principle of validity, or “obligation,” is found, shall be held valid; and that the States shall impose no restraint whatever upon the people’s entering into all such contracts.

All, therefore, that courts have to do, in order to determine whether any particular contract, or class of contracts, are valid, and whether the people have a right to enter into them, is simply to determine whether the contracts themselves have, or have not, this one principle of validity, or “obligation,” which the constitution of the United States declares shall not be impaired.

State legislation can obviously have nothing to do with the solution of this question. It can neither create, nor destroy, that “obligation of contracts,” which the constitution forbids it to impair. It can neither give, nor take away, the right to enter into any contract whatever, that has that “obligation.”

On the supposition, then, that the constitution of the United States is, what it declares itself to be, viz., “the supreme law of the land, . . . . anything in the constitutions or laws of the States to the contrary notwithstanding,” this provision against “any” State “law impairing the obligation of contracts,” is so explicit, and so authoritative, that the legislatures and courts of the States have no color of authority [55] for violating it. And the Supreme Court of the United States has had no color of authority or justification for suffering it to be violated.

This provision is certainly one of the most important—perhaps the most important—of all the provisions of the constitution of the United States, as protective of the natural rights of the people to make their own contracts, or provide for their own welfare.

Yet it has been constantly trampled under foot, by the State legislatures, by all manner of laws, declaring who may, and who may not, make certain contracts; and what shall, and what shall not, be “the obligation” of particular contracts; thus setting at defiance all ideas of justice, of natural rights, and equal rights; conferring monopolies and privileges upon particular individuals, and imposing the most arbitrary and destructive restraints and penalties upon others; all with a view of putting, as far as possible, all wealth into the hands of the few, and imposing poverty and servitude upon the great body of the people.

And yet all these enormities have gone on for nearly a hundred years, and have been sanctioned, not only by all the State courts, but also by the Supreme Court of the United States.

And what color of excuse have any of these courts offered for thus upholding all these violations of justice, of men’s natural rights, and even of that constitution which they had all sworn to support?

They have offered only this: They have all said they did not know what “the obligation of contracts” was!

Well, suppose, for the sake of the argument, that they have not known what “the obligation of contracts” was, what, then, was their duty? Plainly this, to neither enforce, nor annul, any contract whatever, until they should have discovered what “the obligation of contracts” was.

Clearly they could have no right to either enforce, or annul, any contract whatever, until they should have ascertained whether it had any “obligation,” and, if any, what that “obligation” was.

If these courts really do not know—as perhaps they do not—what “the obligation of contracts” is, they deserve nothing but contempt for their ignorance. If they do know what “the obligation of contracts” is, and yet sanction the almost literally innumerable laws that violate it, they deserve nothing but detestation for their villainy.

And until they shall suspend all their judgments for either enforcing, or annulling, contracts, or, on the other hand, shall ascertain what “the obligation of contracts” is, and sweep away all State laws that impair it, they will deserve both contempt for their ignorance, and detestation for their crimes.

Individual Justices of the Supreme Court of the United States have, at least in one instance, in 1827 (Ogden vs. Saunders, 12 Wheaton 213), attempted to give a definition of “the obligation of contracts.” But there was great disagreement [56] among them; and no one definition secured the assent of the whole court, or even of a majority. Since then, so far as I know, that court has never attempted to give a definition. And, so far as the opinion of that court is concerned, the question is as unsettled now, as it was sixty years ago. And the opinions of the Supreme Courts of the States are equally unsettled with those of the Supreme Court of the United States. The consequence is, that “the obligation of contracts”—the principle on which the real validity, or invalidity, of all contracts whatsoever depends—is practically unknown, or at least unrecognized, by a single court, either of the States, or of the United States. And, as a result, every species of absurd, corrupt, and robber legislation goes on unrestrained, as it always has done.

What, now, is the reason why not one of these courts has ever so far given its attention to the subject as to have discovered what “the obligation of contracts” is? What that principle is, I repeat, which they have all sworn to sustain, and on which the real validity, or invalidity, of every contract on which they ever adjudicate, depends? Why is it that they have all gone on sanctioning and enforcing all the nakedly iniquitous laws, by which men’s natural right to make their own contracts has been trampled under foot?

Surely it is not because they do not know that all men have a natural right to make their own contracts; for they know that, as well as they know that all men have a natural right to live, to breathe, to move, to speak, to hear, to see, or to do anything whatever for the support of their lives, or the promotion of their happiness.

Why, then, is it, that they strike down this right, without ceremony, and without compunction, whenever they are commanded to do so by the lawmakers? It is because, and solely because, they are so servile, slavish, degraded, and corrupt, as to act habitually on the principle, that justice and men’s natural rights are matters of no importance, in comparison with the commands of the impudent and tyrannical lawmakers, on whom they are dependent for their offices and their salaries. It is because, and solely because, they, like the judges under all other irresponsible and tyrannical governments, are part and parcel of a conspiracy for robbing and enslaving the great body of the people, to gratify the luxury and pride of a few. It is because, and solely because, they do not recognize our governments, State or national, as institutions designed simply to maintain justice, or to protect all men in the enjoyment of all their natural rights; but only as institutions designed to accomplish such objects as irresponsible cabals of lawmakers may agree upon.

In proof of all this, I give the following.

Previous to 1824, two cases had come up from the State courts, to the Supreme Court of the United States, involving the question whether a State law, invalidating some particular contract, came within the constitutional prohibition of “any law impairing the obligation of contracts.”

[57]

One of these cases was that of Fletcher vs. Peck, (6 Cranch 87), in the year 1810. In this case the court held simply that a grant of land, once made by the legislature of Georgia, could not be rescinded by a subsequent legislature.

But no general definition of “the obligation of contracts” was given.

Again, in the year 1819, in the case of Dartmouth College vs. Woodward (4 Wheaton 518), the court held that a charter, granted to Dartmouth College, by the king of England, before the Revolution, was a contract; and that a law of New Hampshire, annulling, or materially altering, the charter, without the consent of the trustees, was a “law impairing the obligation” of that contract.

But, in this case, as in that of Fletcher vs. Peck, the court gave no general definition of “the obligation of contracts.”

But in the year 1824, and again in 1827, in the case of Ogden vs. Saunders (12 Wheaton 213) the question was, whether an insolvent law of the State of New York, which discharged a debtor from a debt, contracted after the passage of the law, or, as the courts would say, “contracted under the law”—on his giving up his property to be distributed among his creditors—was a “law impairing the obligation of contracts?”

To the correct decision of this case, it seemed indispensable that the court should give a comprehensive, precise, and universal definition of “the obligation of contracts”; one by which it might forever after be known what was, and what was not, that “obligation of contracts,” which the State governments were forbidden to “impair” by “any law” whatever.

The cause was heard at two terms, that of 1824, and that of 1827.

It was argued by Webster, Wheaton, Wirt, Clay, Livingston, Ogden, Jones, Sampson, and Haines; nine in all. Their arguments were so voluminous that they could not be reported at length. Only summaries of them are given. But these summaries occupy thirty-eight pages in the reports.

The judges, at that time, were seven, viz., Marshall, Washington, Johnson, Duvall, Story, Thompson, and Trimble.

The judges gave five different opinions; occupying one hundred pages of the reports.

But no one definition of “the obligation of contracts” could be agreed on; not even by a majority.

Here, then, sixteen lawyers and judges—many of them among the most eminent the country has ever had—were called upon to give their opinions upon a question of the highest importance to all men’s natural rights, to all the interests of civilized society, and to the very existence of civilization itself; a question, upon the answer to which depended the real validity, or invalidity, of every contract that ever was made, or ever will be made, between man and man. And yet, by their disagreements, they all virtually acknowledged that they did not know what “the obligation of contracts” was!

[58]

But this was not all. Although they could not agree as to what “the obligation of contracts” was, they did all agree that it could be nothing which the State lawmakers could not prohibit and abolish, by laws passed before the contracts were made. That is to say, they all agreed that the State lawmakers had absolute power to prohibit all contracts whatsoever, for buying and selling, borrowing and lending, giving and receiving, property; and that, whenever they did prohibit any particular contract, or class of contracts, all such contracts, thereafter made, could have no “obligation”!

They said this, be it noted, not of contracts that were naturally and intrinsically criminal and void, but of contracts that were naturally and intrinsically as just, and lawful, and useful, and necessary, as any that men ever enter into; and that had as perfect a natural, intrinsic, inherent “obligation,” as any of those contracts, by which the traffic of society is carried on, or by which men ever buy and sell, borrow and lend, give and receive, property, of and to each other.

Not one of these sixteen lawyers and judges took the ground that the constitution, in forbidding any State to “pass any law impairing the obligation of contracts,” intended to protect, against the arbitrary legislation of the States, the only true, real, and natural “obligation of contracts,” or the right of the people to enter into all really just, and naturally obligatory contracts.

Is it possible to conceive of a more shameful exhibition, or confession, of the servility, the baseness, or the utter degradation, of both bar and bench, than their refusal to say one word in favor of justice, liberty, men’s natural rights, or the natural, and only real, “obligation” of their contracts?

And yet, from that day to this—a period of sixty years, save one—neither bar nor bench, so far as I know, have ever uttered one syllable in vindication of men’s natural right to make their own contracts, or to have the only true, real, natural, inherent, intrinsic “obligation” of their contracts respected by lawmakers or courts.

Can any further proof be needed that all ideas of justice and men’s natural rights are absolutely banished from the minds of lawmakers, and from so-called courts of justice? or that absolute and irresponsible lawmaking has usurped their place?

Or can any further proof be needed, of the utter worthlessness of all the constitutions, which these lawmakers and judges swear to support, and profess to be governed by?

Section XVIII.

If, now, it be asked, what is this constitutional “obligation of contracts,” which the States are forbidden to impair, the answer is, that it is, and necessarily must be, the natural obligation; or that obligation, which contracts have, on principles [59] of natural law, and natural justice, as distinguished from any arbitrary or unjust obligation, which lawmakers may assume to create, and attach to contracts.

This natural obligation is the only one “obligation,” which all obligatory contracts can be said to have. It is the only inherent “obligation,” that any contract can be said to have. It is recognized all over the world—at least as far as it is known—as the one only true obligation, that any, or all, contracts can have. And, so far as it is known—it is held valid all over the world, except in those exceptional cases, where arbitrary and tyrannical governments have assumed to annul it, or substitute some other in its stead.

The constitution assumes that this one “obligation of contracts,” which it designs to protect, is the natural one, because it assumes that it existed, and was known, at the time the constitution itself was established; and certainly no one “obligation,” other than the natural one, can be said to have been known, as applicable to all obligatory contracts, at the time the constitution was established. Unless, therefore, the constitution be presumed to have intended the natural “obligation,” it cannot be said to have intended any one “obligation” whatever; or, consequently, to have forbidden the violation of any one “obligation” whatever.

It cannot be said that “the obligation,” which the constitution designed to protect, was any arbitrary “obligation,” that was unknown at the time the constitution was established, but that was to be created, and made known afterward; for then this provision of the constitution could have had no effect, until such arbitrary “obligation” should have been created, and made known. And as it gives us no information as to how, or by whom, this arbitrary “obligation” was to be created, or what the obligation itself was to be, or how it could ever be known to be the one that was intended to be protected, the provision itself becomes a mere nullity, having no effect to protect any “obligation” at all.

It would be a manifest and utter absurdity to say that the constitution intended to protect any “obligation” whatever, unless it be presumed to have intended some particular “obligation,” that was known at the time; for that would be equivalent to saying that the constitution intended to establish a law, of which no man could know the meaning.

But this is not all.

The right of property is a natural right. The only real right of property, that is known to mankind, is the natural right. Men have also a natural right to convey their natural rights of property from one person to another. And there is no means known to mankind, by which this natural right of property can be transferred, or conveyed, by one man to another, except by such contracts as are naturally obligatory; that is, naturally capable of conveying and binding the right of property.

All contracts whatsoever, that are naturally capable, competent, and sufficient to convey, transfer, and bind the natural right of property, are naturally obligatory; [60] and really and truly do convey, transfer, and bind such rights of property as they purport to convey, transfer, and bind.

All the other modes, by which one man has ever attempted to acquire the property of another, have been thefts, robberies, and frauds. But these, of course, have never conveyed any real rights of property.

To make any contract binding, obligatory, and effectual for conveying and transferring rights of property, these three conditions only are essential, viz., 1, That it be entered into by parties, who are mentally competent to make reasonable contracts. 2. That the contract be a purely voluntary one: that is, that it be entered into without either force or fraud on either side. 3. That the right of property, which the contract purports to convey, be such an one as is naturally capable of being conveyed, or transferred, by one man to another.

Subject to these conditions, all contracts whatsoever, for conveying rights of property—that is, for buying and selling, borrowing and lending, giving and receiving property—are naturally obligatory, and bind such rights of property as they purport to convey.

Subject to these conditions, all contracts, for the conveyance of rights of property, are recognized as valid, all over the world, by both civilized and savage man, except in those particular cases where governments arbitrarily and tyrannically prohibit, alter, or invalidate them.

This natural “obligation of contracts” must necessarily be presumed to be the one, and the only one, which the constitution forbids to be impaired, by any State law whatever, if we are to presume that the constitution was intended for the maintenance of justice, or men’s natural rights.

On the other hand, if the constitution be presumed not to protect this natural “obligation of contracts,” we know not what other “obligation” it did intend to protect. It mentions no other, describes no other, gives us no hint of any other; and nobody can give us the least information as to what other “obligation of contracts” was intended.

It could not have been any “obligation” which the State lawmakers might arbitrarily create, and annex to all contracts; for this is what no lawmakers have ever attempted to do. And it would be the height of absurdity to suppose they ever will invent any one “obligation,” and attach it to all contracts. They have only attempted either to annul, or impair, the natural “obligation” of particular contracts; or, in particular cases, to substitute other “obligations” of their own invention. And this is the most they will ever attempt to do.

Section XIX.

Assuming it now to be proved that the “obligation of contracts,” which the States are forbidden to “impair,” is the natural “obligation”; and that, constitutionally [61] speaking, this provision secures, to all the people of the United States, the right to enter into, and have the benefit of, all contracts whatsoever, that have that one natural “obligation,” let us look at some of the more important of those State laws that have either impaired that obligation, or prohibited the exercise of that right.

1. That law, in all the States, by which any, or all, the contracts of persons, under twenty-one years of age, are either invalidated, or forbidden to be entered into.

The mental capacity of a person to make reasonable contracts, is the only criterion, by which to determine his legal capacity to make obligatory contracts. And his mental capacity to make reasonable contracts is certainly not to be determined by the fact that he is, or is not, twenty-one years of age. There would be just as much sense in saying that it was to be determined by his height, or his weight, as there is in saying that it should be determined by his age.

Nearly all persons, male and female, are mentally competent to make reasonable contracts, long before they are twenty-one years of age. And as soon as they are mentally competent to make reasonable contracts, they have the same natural right to make them, that they ever can have. And their contracts have the same natural “obligation” that they ever can have.

If a person’s mental capacity to make reasonable contracts be drawn in question, that is a question of fact, to be ascertained by the same tribunal that is to ascertain all the other facts involved in the case. It certainly is not to be determined by any arbitrary legislation, that shall deprive any one of his natural right to make contracts.

2. All the State laws, that do now forbid, or that have heretofore forbidden, married women to make any or all contracts, that they are, or were, mentally competent to make reasonably, are violations of their natural right to make their own contracts.

A married woman has the same natural right to acquire and hold property, and to make all contracts that she is mentally competent to make reasonably, as has a married man, or any other man. And any law invalidating her contracts, or forbidding her to enter into contracts, on the ground of her being married, are not only absurd and outrageous in themselves, but are also as plainly violations of that provision of the constitution, which forbids any State to pass any law impairing the natural obligation of contracts, as would be laws invalidating or prohibiting similar contracts by married men.

3. All those State laws, commonly called acts of incorporation, by which a certain number of persons are licensed to contract debts, without having their individual properties held liable to pay them, are laws impairing the natural obligation of their contracts.

On natural principles of law and reason, these persons are simply partners; and their private properties, like those of any other partners, should be held liable for [62] their partnership debts. Like any other partners, they take the profits of their business, if there be any profits. And they are naturally bound to take all the risks of their business, as in the case of any other business. For a law to say that, if they make any profits, they may put them all into their own pockets, but that, if they make a loss, they may throw it upon their creditors, is an absurdity and an outrage. Such a law is plainly a law impairing the natural obligation of their contracts.

4. All State insolvent laws, so-called, that distribute a debtor’s property equally among his creditors, are laws impairing the natural obligation of his contracts.

If the natural obligation of contracts were known, and recognized as law, we should have no need of insolvent or bankrupt laws.

The only force, function, or effect of a legal contract is to convey and bind rights of property. A contract that conveys and binds no right of property, has no legal force, effect, or obligation whatever.*

Consequently, the natural obligation of a contract of debt binds the debtor’s property, and nothing more. That is, it gives the creditor a mortgage upon the debtor’s property, and nothing more.

A first debt is a first mortgage; a second debt is a second mortgage; a third debt is a third mortgage; and so on indefinitely.

The first mortgage must be paid in full, before anything is paid on the second. The second must be paid in full, before anything is paid on the third; and so on indefinitely.

When the mortgaged property is exhausted, the debt is cancelled; there is no other property that the contract binds.

If, therefore, a debtor, at the time his debt becomes due, pays to the extent of his ability, and has been guilty of no fraud, fault, or neglect, during the time his debt had to run, he is thenceforth discharged from all legal obligation.

If this principle were acknowledged, we should have no occasion, and no use, for insolvent or bankrupt laws.

Of course, persons who have never asked themselves what the natural “obligation of contracts” is, will raise numerous objections to the principle, that a legal contract binds nothing else than rights of property. But their objections are all shallow and fallacious.

I have not space here to go into all the arguments that may be necessary to prove that contracts can have no legal effect, except to bind rights of property; or to show the truth of that principle in its application to all contracts whatsoever. To do this would require a somewhat elaborate treatise. Such a treatise I hope sometime to publish. For the present, I only assert the principle; and assert that the ignorance of this truth is at least one of the reasons why courts and lawyers have never been able to agree as to what “the obligation of contracts” was.

[63]

In all the cases that have now been mentioned,—that is, of minors (so-called), married women, corporations, insolvents, and in all other like cases—the tricks, or pretences, by which the courts attempt to uphold the validity of all laws that forbid persons to exercise their natural right to make their own contracts, or that annul, or impair, the natural “obligation” of their contracts, are these:

1. They say that, if a law forbids any particular contract to be made, such contract, being then an illegal one, can have no “obligation.” Consequently, say they, the law cannot be said to impair it; because the law cannot impair an “obligation,” that has never had an existence.

They say this of all contracts, that are arbitrarily forbidden; although, naturally and intrinsically, they have as valid an obligation as any others that men ever enter into, or as any that courts enforce.

By such a naked trick as this, these courts not only strike down men’s natural right to make their own contracts, but even seek to evade that provision of the constitution, which they are all sworn to support, and which commands them to hold valid the natural “obligation” of all men’s contracts; “anything in the constitutions or laws of the States to the contrary notwithstanding.”

They might as well have said that, if the constitution had declared that “no State shall pass any law impairing any man’s natural right to life, liberty, or property”—(that is, his natural right to live, and do what he will with himself and his property, so long as he infringes the right of no other person)—this prohibition could be evaded by a State law declaring that, from and after such a date, no person should have any natural right to life, liberty, or property; and that, therefore, a law arbitrarily taking from a man his life, liberty, and property, could not be said to impair his right to them, because no law could impair a right that did not exist.

The answer to such an argument as this, would be, that it is a natural truth that every man, who ever has been, or ever will be, born into the world, necessarily has been, and necessarily will be, born with an inherent right to life, liberty, and property; and that, in forbidding this right to be impaired, the constitution presupposes, implies, assumes, and asserts that every man has, and will have, such a right; and that this natural right is the very right, which the constitution forbids any State law to impair.

Or the courts might as well have said that, if the constitution had declared that “no State shall pass any law impairing the obligation of contracts made for the purchase of food,” that provision could have been evaded by a State law forbidding any contract to be made for the purchase of food; and then saying that such contract, being illegal, could have no “obligation,” that could be impaired.

The answer to this argument would be that, by forbidding any State law impairing the obligation of contracts made for the purchase of food, the constitution presupposes, implies, assumes, and asserts that such contracts have, and always [64] will have, a natural “obligation”; and that this natural “obligation” is the very “obligation,” which the constitution forbids any State law to impair.

So in regard to all other contracts. The constitution presupposes, implies, assumes, and asserts the natural truth, that certain contracts have, and always necessarily will have, a natural “obligation.” And this natural “obligation”—which is the only real obligation that any contract can have—is the very one that the constitution forbids any State law to impair, in the case of any contract whatever that has such obligation.

And yet all the courts hold the direct opposite of this. They hold that, if a State law forbids any contract to be made, such a contract can then have no obligation; and that, consequently, no State law can impair an obligation that never existed.

But if, by forbidding a contract to be made, a State law can prevent the contract’s having any obligation, State laws, by forbidding any contracts at all to be made, can prevent all contracts, thereafter made, from having any obligation; and thus utterly destroy all men’s natural rights to make any obligatory contracts at all.

2. A second pretence, by which the courts attempt to evade that provision of the constitution, which forbids any State to “pass any law impairing the obligation of contracts,” is this: They say that the State law, that requires, or obliges, a man to fulfil his contracts, is itself “the obligation,” which the constitution forbids to be impaired; and that therefore the constitution only prohibits the impairing of any law for enforcing such contracts as shall be made under it.

But this pretence, it will be seen, utterly discards the idea that contracts have any natural obligation. It implies that contracts have no obligation, except the laws that are made for enforcing them. But if contracts have no natural obligation, they have no obligation at all, that ought to be enforced; and the State is a mere usurper, tyrant, and robber, in passing any law to enforce them.

Plainly a State cannot rightfully enforce any contracts at all, unless they have a natural obligation.

3. A third pretence, by which the courts attempt to evade this provision of the constitution, is this: They say that “the law is a part of the contract” itself; and therefore cannot impair its obligation.

By this they mean that, if a law is standing upon the statute book, prescribing what obligation certain contracts shall, or shall not, have, it must then be presumed that, whenever such a contract is made, the parties intended to make it according to that law; and really to make the law a part of their contract; although they themselves say nothing of the kind.

This pretence, that the law is a part of the contract, is a mere trick to cheat people out of their natural right to make their own contracts; and to compel them to make only such contracts as the lawmakers choose to permit them to make.

[65]

To say that it must be presumed that the parties intended to make their contracts according to such laws as may be prescribed to them—or, what is the same thing, to make the laws a part of their contracts—is equivalent to saying that the parties must be presumed to have given up all their natural right to make their own contracts; to have acknowledged themselves imbeciles, incompetent to make reasonable contracts, and to have authorized the lawmakers to make their contracts for them; for if the lawmakers can make any part of a man’s contract, and presume his consent to it, they can make a whole one, and presume his consent to it.

If the lawmakers can make any part of men’s contracts, they can make the whole of them; and can, therefore, buy and sell, borrow and lend, give and receive men’s property of all kinds, according to their (the lawmakers’) own will, pleasure, or discretion; without the consent of the real owners of the property, and even without their knowledge, until it is too late. In short, they may take any man’s property, and give it, or sell it, to whom they please, and on such conditions, and at such prices, as they please; without any regard to the rights of the owner. They may, in fact, at their pleasure, strip any, or every, man of his property, and bestow it upon whom they will; and then justify the act upon the presumption that the owner consented to have his property thus taken from him and given to others.

This absurd, contemptible, and detestable trick has had a long lease of life, and has been used as a cover for some of the greatest of crimes. By means of it, the marriage contract has been perverted into a contract, on the part of the woman, to make herself a legal non-entity, or non compos mentis; to give up, to her husband, all her personal property, and the control of all her real estate; and to part with her natural, inherent, inalienable right, as a human being, to direct her own labor, control her own earnings, make her own contracts, and provide for the subsistence of herself and her children.

There would be just as much reason in saying that the lawmakers have a right to make the entire marriage contract; to marry any man and woman against their will; dispose of all their personal and property rights; declare them imbeciles, incapable of making a reasonable marriage contract; then presume the consent of both the parties; and finally treat them as criminals, and their children as outcasts, if they presume to make any contract of their own.

This same trick, of holding that the law is a part of the contract, has been made to protect the private property of stockholders from liability for the debts of the corporations, of which they were members; and to protect the private property of special partners, so-called, or limited partners, from liability for partnership debts.

This same trick has been employed to justify insolvent and bankrupt laws, so-called, whereby a first creditor’s right to a first mortgage on the property of his debtor, has been taken from him, and he has been compelled to take his chances with as many subsequent creditors as the debtor may succeed in becoming indebted to

[66]

All these absurdities and atrocities have been practiced by the lawmakers of the States, and sustained by the courts, under the pretence that they (the courts) did not know what the natural “obligation of contracts” was; or that, if they did know what it was, the constitution of the United States imposed no restraint upon its unlimited violation by the State lawmakers.

Section XX.

But, not content with having always sanctioned the unlimited power of the State lawmakers to abolish all men’s natural right to make their own contracts, the Supreme Court of the United States has, within the last twenty years, taken pains to assert that congress also has the arbitrary power to abolish the same right.

1. It has asserted the arbitrary power of congress to abolish all men’s right to make their own contracts, by asserting its power to alter the meaning of all contracts, after they are made, so as to make them widely, or wholly, different from what the parties had made them.

Thus the court has said that, after a man has made a contract to pay a certain number of dollars, at a future time,—meaning such dollars as were current at the time the contract was made,—congress has power to coin a dollar of less value than the one agreed on, and authorize the debtor to pay his debt with a dollar of less value than the one he had promised.

To cover up this infamous crime, the court asserts, over and over again,—what no one denies,—that congress has power (constitutionally speaking) to alter, at pleasure, the value of its coins. But it then asserts that congress has this additional, and wholly different, power, to wit, the power to declare that this alteration in the value of the coins shall work a corresponding change in all existing contracts for the payment of money.

In reality they say that a contract to pay money is not a contract to pay any particular amount, or value, of such money as was known and understood by the parties at the time the contract was made, but only such, and so much, as congress shall afterwards choose to call by that name, when the debt shall become due.

They assert that, by simply retaining the name, while altering the thing,—or by simply giving an old name to a new thing,—congress has power to utterly abolish the contract which the parties themselves entered into, and substitute for it any such new and different one, as they (congress) may choose to substitute.

Here are their own words:

The contract obligation . . . . was not a duty to pay gold or silver, or the kind of money recognized by law at the time when the contract was made, nor was it a duty to pay money of equal intrinsic value in the market. . . . . But the obligation of a contract to pay money is to pay that which the law shall recognize as money when the payment is to be made.—Legal Tender Cases, 12 Wallace 548.

[67]

This is saying that the obligation of a contract to pay money is not an obligation to pay what both the law and the parties recognize as money, at the time when the contract is made, but only such substitute as congress shall afterwards prescribe, “when the payment is to be made.”

This opinion was given by a majority of the court in the year 1870.

In another opinion the court says:

Under the power to coin money, and to regulate its value, congress may issue coins of the same denomination [that is, bearing the same name] as those already current by law, but of less intrinsic value than those, by reason of containing a less weight of the precious metals, and thereby enable debtors to discharge their debts by the payment of coins of the less real value. A contract to pay a certain sum of money, without any stipulation as to the kind of money in which it shall be made, may always be satisfied by payment of that sum [that is, that nominal amount] in any currency which is lawful money at the place and time at which payment is to be made.—Juilliard vs. Greenman, 110 U. S. Reports, 449.

This opinion was given by the entire court—save one, Field—at the October term of 1883.

Both these opinions are distinct declarations of the power of congress to alter men’s contracts, after they are made, by simply retaining the name, while altering the thing, that is agreed to be paid.

In both these cases, the court means distinctly to say that, after the parties to a contract have agreed upon the number of dollars to be paid, congress has power to reduce the value of the dollar, and authorize all debtors to pay the less valuable dollar, instead of the one agreed on.

In other words, the court means to say that, after a contract has been made for the payment of a certain number of dollars, congress has power to alter the meaning of the word dollar, and thus authorize the debtor to pay in something different from, and less valuable than, the thing he agreed to pay.

Well, if congress has power to alter men’s contracts, after they are made, by altering the meaning of the word dollar, and thus reducing the value of the debt, it has a precisely equal power to increase the value of the dollar, and thus compel the debtor to pay more than he agreed to pay.

Congress has evidently just as much right to increase the value of the dollar, after a contract has been made, as it has to reduce its value. It has, therefore, just as much right to cheat debtors, by compelling them to pay more than they agreed to pay, as it has to cheat creditors, by compelling them to accept less than they agreed to accept.

All this talk of the court is equivalent to asserting that congress has the right to alter men’s contracts at pleasure, after they are made, and make them over into something, or anything, wholly different from what the parties themselves had made them.

And this is equivalent to denying all men’s right to make their own contracts, [68] or to acquire any contract rights, which congress may not afterward, at pleasure, alter, or abolish.

It is equivalent to saying that the words of contracts are not to be taken in the sense in which they are used, by the parties themselves, at the time when the contracts are entered into, but only in such different senses as congress may choose to put upon them at any future time.

If this is not asserting the right of congress to abolish altogether men’s natural right to make their own contracts, what is it?

Incredible as such audacious villainy may seem to those unsophisticated persons, who imagine that a court of law should be a court of justice, it is nevertheless true, that this court intended to declare the unlimited power of congress to alter, at pleasure, the contracts of parties, after they have been made, by altering the kind and amount of money by which the contracts may be fulfilled. That they intended all this, is proved, not only by the extracts already given from their opinions, but also by the whole tenor of their arguments—too long to be repeated here—and more explicitly by these quotations, viz.:

There is no well-founded distinction to be made between the constitutional validity of an act of congress declaring treasury notes a legal tender for the payment of debts contracted after its passage, and that of an act making them a legal tender for the discharge of all debts, as well those incurred before, as those made after, its enactment.—Legal Tender Cases, 12 Wallace 530 (1870).

Every contract for the payment of money, simply, is necessarily subject to the constitutional power of the government over the currency, whatever that power may be, and the obligation of the parties is, therefore, assumed with reference to that power.—12 Wallace 549.

Contracts for the payment of money are subject to the authority of congress, at least so far as relates to the means of payment.—12 Wallace 549.

The court means here to say that “every contract for the payment of money, simply,” is necessarily made, by the parties, subject to the power of congress to alter it afterward—by altering the kind and value of the money with which it may be paid—into anything, into which they (congress) may choose to alter it.

And this is equivalent to saying that all such contracts are made, by the parties, with the implied understanding that the contracts, as written and signed by themselves, do not bind either of the parties to anything; but that they simply suggest, or initiate, some non-descript or other, which congress may afterward convert into a binding contract, of such a sort, and only such a sort, as they (congress) may see fit to convert it into.

Every one of these judges knew that no two men, having common honesty and common sense,—unless first deprived of all power to make their own contracts,—would ever enter into a contract to pay money, with any understanding that the government had any such arbitrary power as the court here ascribes to it, to alter [69] their contract after it should be made. Such an absurd contract would, in reality, be no legal contract at all. It would be a mere gambling agreement, having, naturally and really, no legal “obligation” at all.

But further. A solvent contract to pay money is in reality—in law, and in equity—a bona fide mortgage upon the debtor’s property. And this mortgage right is as veritable a right of property, as is any right of property, that is conveyed by a warranty deed. And congress has no more right to invalidate this mortgage, by a single iota, than it has to invalidate a warranty deed of land. And these judges will sometime find out that such is “the obligation of contracts,” if they ever find out what “the obligation of contracts” is.

The justices of that court have had this question—what is “the obligation of contracts”?—before them for seventy years, and more. But they have never agreed among themselves—even by so many as a majority—as to what it is. And this disagreement is very good evidence that none of them have known what it is; for if any one of them had known what it is, he would doubtless have been able, long ago, to enlighten the rest.

Considering the vital importance of men’s contracts, it would evidently be more to the credit of these judges, if they would give their attention to this question of “the obligation of contracts,” until they shall have solved it, than it is to be telling fifty millions of people that they have no right to make any contracts at all, except such as congress has power to invalidate after they shall have been made. Such assertions as this, coming from a court that cannot even tell us what “the obligation of contracts” is, are not entitled to any serious consideration. On the contrary, they show us what farces and impostures these judicial opinions—or decisions, as they call them—are. They show that these judicial oracles, as men call them, are no better than some of the other so-called oracles, by whom mankind have been duped.

But these judges certainly never will find out what “the obligation of contracts” is, until they find out that men have the natural right to make their own contracts, and unalterably fix their “obligation”; and that governments can have no power whatever to make, unmake, alter, or invalidate that “obligation.”

Still further. Congress has the same power over weights and measures that it has over coins. And the court has no more right or reason to say that congress has power to alter existing contracts, by altering the value of the coins, than it has to say that, after any or all men have, for value received, entered into contracts to deliver so many bushels of wheat or other grain, so many pounds of beef, pork, butter, cheese, cotton, wool, or iron, so many yards of cloth, or so many feet of lumber, congress has power, by altering these weights and measures, to alter all these existing contracts, so as to convert them into contracts to deliver only half as many, or to deliver twice as many, bushels, pounds, yards, or feet, as the parties agreed upon.

[70]

To add to the farce, as well as to the iniquity, of these judicial opinions, it must be kept in mind, that the court says that, after A has sold valuable property to B, and has taken in payment an honest and sufficient mortgage on B’s property, congress has the power to compel him (A) to give up this mortgage, and to accept, in place of it, not anything of any real value whatever, but only the promissory note of a so-called government; and that government one which—if taxation without consent is robbery—never had an honest dollar in its treasury, with which to pay any of its debts, and is never likely to have one; but relies wholly on its future robberies for its means to pay them; and can give no guaranty, but its own interest at the time, that it will even make the payment out of its future robberies.

If a company of bandits were to seize a man’s property for their own uses, and give him their note, promising to pay him out of their future robberies, the transaction would not be considered a very legitimate one. But it would be intrinsically just as legitimate as is the one which the Supreme Court sanctions on the part of congress.

Banditti have not usually kept supreme courts of their own, to legalize either their robberies, or their promises to pay for past robberies, out of the proceeds of their future ones. Perhaps they may now take a lesson from our Supreme Court, and establish courts of their own, that will hereafter legalize all their contracts of this kind.

Section XXI.

To justify its declaration, that congress has power to alter men’s contracts after they are made, the court dwells upon the fact that, at the times when the legal-tender acts were passed, the government was in peril of its life; and asserts that it had therefore a right to do almost anything for its self-preservation, without much regard to its honesty, or dishonesty, towards private persons. Thus it says:

A civil war was then raging, which seriously threatened the overthrow of the government, and the destruction of the constitution itself. It demanded the equipment and support of large armies and navies, and the employment of money to an extent beyond the capacity of all ordinary sources of supply. Meanwhile the public treasury was nearly empty, and the credit of the government, if not stretched to its utmost tension, bad become nearly exhausted. Moneyed institutions had advanced largely of their means, and more could not be expected of them. They had been compelled to suspend specie payments. Taxation was inadequate to pay even the interest on the debt already incurred, and it was impossible to await the income of additional taxes. The necessity was immediate and pressing. The army was unpaid. There was then due to the soldiers in the field nearly a score of millions of dollars. The requisitions from the War and Navy departments for supplies, exceeded fifty millions, and the current expenditure was over one million per day. . . . . Foreign credit we had none. We say nothing of the overhanging paralysis of trade, and business generally, which threatened loss of confidence in the ability of the government to maintain its continued existence, and therewith the complete destruction of all remaining national credit.

[71]

It was at such a time, and in such circumstances, that congress was called upon to devise means for maintaining the army and navy, for securing the large supplies of money needed, and indeed for the preservation of the government created by the constitution. It was at such a time, and in such an emergency, that the legal-tender acts were passed.—12 Wallace 540-1.

In the same case Bradley said:

Can the poor man’s cattle, and horses, and corn be thus taken by the government, when the public exigency requires it, and cannot the rich man’s bonds and notes be in like manner taken to reach the same end?—p. 561.

He also said:

It is absolutely essential to independent national existence that government should have a firm hold on the two great instrumentalities of the sword and the purse, and the right to wield them without restriction, on occasions of national peril. In certain emergencies government must have at its command, not only the personal services—the bodies and lives—of its citizens, but the lesser, though not less essential, power of absolute control over the resources of the country. Its armies must be filled, and its navies manned, by the citizens in person.—p. 563.

Also he said:

The conscription may deprive me of liberty, and destroy my life. . . . . All these are fundamental political conditions on which life, property, and money are respectively held and enjoyed under our system of government, nay, under any system of government. There are times when the exigencies of the State rightly absorb all subordinate considerations of private interest, convenience, and feeling.—p. 565.

Such an attempt as this, to justify one crime, by taking for granted the justice of other and greater crimes, is a rather desperate mode of reasoning, for a court of law; to say nothing of a court of justice. The answer to it is, that no government, however good in other respects—any more than any other good institution—has any right to live otherwise than on purely voluntary support. It can have no right to take either “the poor man’s cattle, and horses, and corn,” or “the rich man’s bonds and notes,” or poor men’s “bodies and lives,” without their consent. And when a government resorts to such measures to save its life, we need no further proof that its time to die has come. A good government, no more than a bad one, has any right to live by robbery, murder, or any other crime.

But so think not the Justices of the Supreme Court of the United States. On the contrary, they hold that, in comparison with the preservation of the government, all the rights of the people to property, liberty, and life are worthless things, not to be regarded. So they hold that in such an exigency as they describe, congress had the right to commit any crime against private persons, by which the government could be saved. And among these lawful crimes, the court holds that [72] congress had the right to issue money that should serve as a license to all holders of it, to cheat—or rather openly rob—their creditors.

The court might, with just as much reason, have said that, to preserve the life of the government, congress had the right to issue such money as would authorize all creditors to demand twice the amount of their honest dues from all debtors.

The court might, with just as much reason, have said that, to preserve the life of the government, congress had the right to sell indulgences for all manner of crimes; for theft, robbery, rape, murder, and all other crimes, for which indulgences would bring a price in the market.

Can any one imagine it possible that, if the government had always done nothing but that “equal and exact justice to all men”—which you say it is pledged to do,—but which you must know it has never done,—it could ever have been brought into any such peril of its life, as these judges describe? Could it ever have been necessitated to take either “the poor man’s cattle, and horses, and corn,” or “the rich man’s bonds and notes,” or poor men’s “bodies and lives,” without their consent? Could it ever have been necessitated to “conscript” the poor man—too poor to pay a ransom of three hundred dollars—made thus poor by the tyranny of the government itself—“deprive him of his liberty, and destroy his life”? Could it ever have been necessitated to sell indulgences for crime to either debtors, or creditors, or anybody else? To preserve “the constitution”—a constitution, I repeat, that authorized nothing but “equal and exact justice to all men”—could it ever have been necessitated to send into the field millions of ignorant young men, to cut the throats of other young men as ignorant as themselves—few of whom, on either side, had ever read the constitution, or had any real knowledge of its legal meaning; and not one of whom had ever signed it, or promised to support it, or was under the least obligation to support it?

It is, I think, perfectly safe to say, that not one in a thousand, probably not one in ten thousand, of these young men, who were sent out to butcher others, and be butchered themselves, had any real knowledge of the constitution they were professedly sent out to support; or any reasonable knowledge of the real character and motives of the congresses and courts that profess to administer the constitution. If they had possessed this knowledge, how many of them would have ever gone to the field?

But further. Is it really true that the right of the government to commit all these atrocities:

Are the fundamental political conditions on which life, property, and money are respectively held and enjoyed under our system of government?

If such is the real character of the constitution, can any further proof be required of the necessity that it be buried out of sight at once and forever?

The truth was that the government was in peril, solely because it was not fit to exist. [73] It, and the State governments—all but parts of one and the same system—were rotten with tyranny and crime. And being bound together by no honest tie, and existing for no honest purpose, destruction was the only honest doom to which any of them were entitled. And if we had spent the same money and blood to destroy them, that we did to preserve them, it would have been ten thousand times more creditable to our intelligence and character as a people.

Clearly the court has not strengthened its case at all by this picture of the peril in which the government was placed. It has only shown to what desperate straits a government, founded on usurpation and fraud, and devoted to robbery and oppression, may be brought, by the quarrels that are liable to arise between the different factions—that is, the different bands of robbers—of which it is composed. When such quarrels arise, it is not to be expected that either faction—having never had any regard to human rights, when acting in concert with the other—will hesitate at any new crimes that may be necessary to prolong its existence.

Here was a government that had never had any legitimate existence. It professedly rested all its authority on a certain paper called a constitution; a paper, I repeat, that nobody had ever signed, that few persons had ever read, that the great body of the people had never seen. This government had been imposed, by a few property holders, upon a people too poor, too scattered, and many of them too ignorant, to resist. It had been carried on, for some seventy years, by a mere cabal of irresponsible men, called lawmakers. In this cabal, the several local bands of robbers—the slaveholders of the South, the iron monopolists, the woollen monopolists, and the money monopolists, of the North—were represented. The whole purpose of its laws was to rob and enslave the many—both North and South—for the benefit of a few. But these robbers and tyrants quarreled—as lesser bands of robbers have done—over the division of their spoils. And hence the war. No such principle as justice to anybody—black or white—was the ruling motive on either side.

In this war, each faction—already steeped in crime—plunged into new, if not greater, crimes. In its desperation, it resolved to destroy men and money, without limit, and without mercy, for the preservation of its existence. The northern faction, having more men, money, and credit than the southern, survived the Kilkenny fight. Neither faction cared anything for human rights then, and neither of them has shown any regard for human rights since. “As a war measure,” the northern faction found it necessary to put an end to the one great crime, from which the southern faction had drawn its wealth. But all other government crimes have been more rampant since the war, than they were before. Neither the conquerors, nor the conquered, have yet learned that no government can have any right to exist for any other purpose than the simple maintenance of justice between man and man.

And now, years after the fiendish butchery is over, and after men would seem [74] to have had time to come to their senses, the Supreme Court of the United States, representing the victorious faction, comes forward with the declaration that one of the crimes—the violation of men’s private contracts—resorted to by its faction, in the heat of conflict, as a means of preserving its power over the other, was not only justifiable and proper at the time, but that it is also a legitimate and constitutional power, to be exercised forever hereafter in time of peace!

Mark the knavery of these men. They first say that, because the government was in peril of its life, it had a right to license great crimes against private persons, if by so doing it could raise money for its own preservation. Next they say that, although the government is no longer in peril of its life, it may still go on forever licensing the same crimes as it was before necessitated to license!

They thus virtually say that the government may commit the same crimes in time of peace, that it is necessitated to do in time of war; and, that, consequently, it has the same right to “take the poor man’s cattle, and horses, and corn,” and “the rich man’s bonds and notes,” and poor men’s “bodies and lives,” in time of peace, when no necessity whatever can be alleged, as in time of war, when the government is in peril of its life.

In short, they virtually say, that this government exists for itself alone; and that all the natural rights of the people, to property, liberty, and life, are mere baubles, to be disposed of, at its pleasure, whether in time of peace, or in war.

Section XXII.

As if to place beyond controversy the fact, that the court may forever hereafter be relied on to sanction every usurpation and crime that congress will ever dare to put into the form of a statute, without the slightest color of authority from the constitution, necessity, utility, justice, or reason, it has, on three separate occasions, announced its sanction of the monopoly of money, as finally established by congress in 1866, and continued in force ever since.

This monopoly is established by a prohibitory tax—a tax of ten per cent.—on all notes issued for circulation as money, other than the notes of the United States and the national banks.

This ten per cent. is called a “tax,” but is really a penalty, and is intended as such, and as nothing else. Its whole purpose is—not to raise revenue—but solely to establish a monopoly of money, by prohibiting the issue of all notes intended for circulation as money, except those issued, or specially licensed, by the government itself.

This prohibition upon the issue of all notes, except those issued, or specially licensed, by the government, is a prohibition upon all freedom of industry and traffic. It is a prohibition upon the exercise of men’s natural right to lend and hire such money capital as all men need to enable them to create and distribute [75] wealth, and supply their own wants, and provide for their own happiness. Its whole purpose is to reduce, as far as possible, the great body of the people to the condition of servants to a few—a condition but a single grade above that of chattel slavery—in which their labor, and the products of their labor, may be extorted from them at such prices only as the holders of the monopoly may choose to give.

This prohibitory tax—so-called—is therefore really a penalty imposed upon the exercise of men’s natural right to create and distribute wealth, and provide for their own and each other’s wants. And it is imposed solely for the purpose of establishing a practically omnipotent monopoly in the hands of a few.

Calling this penalty a “tax” is one of the dirty tricks, or rather downright lies—that of calling things by false names—to which congress and the courts resort, to hide their usurpations and crimes from the common eye.

Everybody—who believes in the government—says, of course, that congress has power to levy taxes; that it must do so to raise revenue for the support of the government. Therefore this lying congress call this penalty a “tax,” instead of calling it by its true name, a penalty.

It certainly is no tax, because no revenue is raised, or intended to be raised, by it. It is not levied upon property, or persons, as such, but only upon a certain act, or upon persons for doing a certain act; an act that is not only perfectly innocent and lawful in itself, but that is naturally and intrinsically useful, and even indispensable for the prosperity and welfare of the whole people. Its whole object is simply to deter everybody—except those specially licensed—from performing this innocent, useful, and necessary act. And this it has succeeded in doing for the last twenty years; to the destruction of the rights, and the impoverishment and immeasurable injury of all the people, except the few holders of the monopoly.

If congress had passed an act, in this form, to wit:

No person, nor any association of persons, incorporated or unincorporated—unless specially licensed by congress—shall issue their promissory notes for circulation as money; and a penalty of ten per cent. upon the amount of all such notes shall be imposed upon the persons issuing them,

the act would have been the same, in effect and intention, as is this act, that imposes what it calls a “tax.” The penalty would have been understood by everybody as a punishment for issuing the notes; and would have been applied to, and enforced against, those only who should have issued them. And it is the same with this so-called tax. It will never be collected, except for the same cause, and under the same circumstances, as the penalty would have been. It has no more to do with raising a revenue, than the penalty would have had. And all these lying lawmakers and courts know it.

But if congress had put this prohibition distinctly in the form of a penalty, the usurpation would have been so barefaced—so destitute of all color of constitutional [76] authority—that congress dared not risk the consequences. And possibly the court might not have dared to sanction it; if, indeed, there be any crime or usurpation which the court dare not sanction. So these knavish lawmakers called this penalty a “tax”; and the court says that such a “tax” is clearly constitutional. And the monopoly has now been established for twenty years. And substantially all the industrial and financial troubles of that period have been the natural consequences of the monopoly.

If congress had laid a prohibitory tax upon all food—that is, had imposed a penalty upon the production and sale of all food—except such as it should have itself produced, or specially licensed; and should have reduced the amount of food, thus produced or licensed, to one tenth, twentieth, or fiftieth of what was really needed; the motive and the crime would have been the same, in character, if not in degree, as they are in this case, viz., to enable the few holders of the licensed food to extort, from everybody else, by the fear of starvation, all their (the latter’s) earnings and property, in exchange for this small quantity of privileged food.

Such a monopoly of food would have been no clearer violation of men’s natural rights, than is the present monopoly of money. And yet this colossal crime—like every other crime that congress chooses to commit—is sanctioned by its servile, rotten, and stinking court.

On what constitutional grounds—that is, on what provisions found in the constitution itself—does the court profess to give its sanction to such a crime?

On these three only:

- 1. On the power of congress to lay and collect taxes, etc.

- 2. On the power of congress to coin money.

- 3. On the power of congress to borrow money.

Out of these simple, and apparently harmless provisions, the court manufactures an authority to grant, to a few persons, a monopoly that is practically omnipotent over all the industry and traffic of the country; that is fatal to all other men’s natural right to lend and hire capital for any or all their legitimate industries; and fatal absolutely to all their natural right to buy, sell, and exchange any, or all, the products of their labor at their true, just, and natural prices.

Let us look at these constitutional provisions, and see how much authority congress can really draw from them.

1. The constitution says:

The congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defence and general welfare of the United States.

This provision plainly authorizes no taxation whatever, except for the raising of revenue to pay the debts and legitimate expenses of the government. It no more authorizes taxation for the purpose of establishing monopolies of any kind whatever, than it does for taking openly and boldly all the property of the many, [77] and giving it outright to a few. And none but a congress of usurpers, robbers, and swindlers would ever think of using it for that purpose.

The court says, in effect, that this provision gives congress power to establish the present monopoly of money; that the power to tax all other money, is a power to prohibit all other money; and a power to prohibit all other money is a power to give the present money a monopoly.

How much is such an argument worth? Let us show by a parallel case, as follows.

Congress has the same power to tax all other property, that it has to tax money. And if the power to tax money is a power to prohibit money, then it follows that the power of congress to tax all other property than money, is a power to prohibit all other property than money; and a power to prohibit all other property than money, is a power to give monopolies to all such other property as congress may not choose to prohibit; or may choose to specially license.

On such reasoning as this, it would follow that the power of congress to tax money, and all other property, is a power to prohibit all money, and all other property; and thus to establish monopolies in favor of all such money, and all such other property, as it chooses not to prohibit; or chooses to specially license.

Thus, this reasoning would give congress power to establish all the monopolies, it may choose to establish, not only in money, but in agriculture, manufactures, and commerce; and protect these monopolies against infringement, by imposing prohibitory taxes upon all money and other property, except such as it should choose not to prohibit; or should choose to specially license.

Because the constitution says that “congress shall have power to lay and collect taxes,” etc., to raise the revenue necessary for paying the current expenses of the government, the court say that congress have power to levy prohibitory taxes—taxes that shall yield no revenue at all—but shall operate only as a penalty upon all industries and traffic, and upon the use of all the means of industry and traffic, that shall compete with such monopolies as congress shall choose to grant.

This is no more than an unvarnished statement of the argument, by which the court attempts to justify a prohibitory “tax” upon money; for the same reasoning would justify the levying of a prohibitory tax—that is, penalty—upon the use of any and all other means of industry and traffic, by which any other monopolies, granted by congress, might be infringed.

There is plainly no more connection between the “power to lay and collect taxes,” etc., for the necessary expenses of the government, and the power to establish this monopoly of money, than there is between such a power of taxation, and a power to punish, as a crime, any or all industry and traffic whatsoever, except such as the government may specially license.

This whole cheat lies in the use of the word “tax,” to describe what is really a penalty, upon the exercise of any or all men’s natural rights of providing for their subsistence and well-being. And none but corrupt and rotten congresses and courts would ever think of practising such a cheat.

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2. The second provision of the constitution, relied on by the court to justify the monopoly of money, is this:

The congress shall have power to coin money, regulate the value thereof, and of foreign coins.

The only important part of this provision is that which says that “the congress shall have power to coin money, [and] regulate the value thereof.”

That part about regulating the value of foreign coins—if any one can tell how congress can regulate it—is of no appreciable importance to anybody; for the coins will circulate, or not, as men may, or may not, choose to buy and sell them as money, and at such value as they will bear in free and open market,—that is, in competition with all other coins, and all other money. This is their only true and natural market value; and there is no occasion for congress to do anything in regard to them.

The only thing, therefore, that we need to look at, is simply the power of congress “to coin money.”

So far as congress itself is authorized to coin money, this is simply a power to weigh and assay metals,—gold, silver, or any other,—stamp upon them marks indicating their weight and fineness, and then sell them to whomsoever may choose to buy them; and let them go in the market for whatever they may chance to bring, in competition with all other money that may chance to be offered there.

It is no power to impose any restrictions whatever upon any or all other honest money, that may be offered in the market, and bought and sold in competition with the coins weighed and assayed by the government.

The power itself is a frivolous one, of little or no utility; for the weighing and assaying of metals is a thing so easily done, and can be done by so many different persons, that there is certainly no necessity for its being done at all by a government. And it would undoubtedly have been far better if all coins—whether coined by governments or individuals—had all been made into pieces bearing simply the names of pounds, ounces, pennyweights, etc., and containing just the amounts of pure metal described by those weights. The coins would then have been regarded as only so much metal; and as having only the same value as the same amount of metal in any other form. Men would then have known exactly how much of certain metals they were buying, selling, and promising to pay. And all the jugglery, cheating, and robbery that governments have practised, and licensed individuals to practise—by coining pieces bearing the same names, but having different amounts of metal—would have been avoided.

And all excuses for establishing monopolies of money, by prohibiting all other money than the coins, would also have been avoided.

As it is, the constitution imposes no prohibition upon the coining of money by individuals, but only by State governments. Individuals are left perfectly free to [79] coin it, except that they must not “counterfeit the securities and current coin of the United States.”

For quite a number of years after the discovery of gold in California—that is, until the establishment of a government mint there—a large part of the gold that was taken out of the earth, was coined by private persons and companies; and this coinage was perfectly legal. And I do not remember to have ever heard any complaint, or accusation, that it was not honest and reliable.

The true and only value, which the coins have as money, is that value which they have as metals, for uses in the arts,—that is, for plate, watches, jewelry, and the like. This value they will retain, whether they circulate as money, or not. At this value, they are so utterly inadequate to serve as bona fide equivalents for such other property as is to be bought and sold for money; and, after being minted, are so quickly taken out of circulation, and worked up into articles of use—plate, watches, jewelry, etc.—that they are practically of almost no importance at all as money.

But they can be so easily and cheaply carried from one part of the world to another, that they have substantially the same market value all over the world. They are also, in but a small degree, liable to great or sudden changes in value. For these reasons, they serve well as standards—are perhaps the best standards we can have—by which to measure the value of all other money, as well as other property. But to give them any monopoly as money, is to deny the natural right of all men to make their own contracts, and buy and sell, borrow and lend, give and receive, all such money as the parties to bargains may mutually agree upon; and also to license the few holders of the coins to rob all other men in the prices of the latter’s labor and property.

3. The third provision of the constitution, on which the court relies to justify the monopoly of money, is this:

The congress shall have power to borrow money.

Can any one see any connection between the power of congress “to borrow money,” and its power to establish a monopoly of money?

Certainly no such connection is visible to the legal eye. But it is distinctly visible to the political and financial eye; that is, to that class of men, for whom governments exist, and who own congresses and courts, and set in motion armies and navies, whenever they can promote their own interests by doing so.

To a government, whose usurpations and crimes have brought it to the verge of destruction, these men say:

Make bonds bearing six per cent. interest; sell them to us at half their face value; then give us a monopoly of money based upon these bonds—such a monopoly as will subject the great body of the people to a dependence upon us for the necessaries of life, and compel them to sell their labor and property to us at our own prices; then, under pretence of raising [80] revenue to pay the interest and principal of the bonds, impose such a tariff upon imported commodities as will enable us to get fifty per cent. more for our own goods than they are worth; in short, pledge to us all the power of the government to extort for us, in the future, everything that can be extorted from the producers of wealth, and we will lend you all the money you need to maintain your power.

And the government has no alternative but to comply with this infamous proposal, or give up its infamous life.

This is the only real connection there is between the power of congress “to borrow money,” and its power to establish a monopoly of money. It was only by an outright sale of the rights of the whole people, for a long series of years, that the government could raise the money necessary to continue its villainous existence.

Congress had just as much constitutional power “to borrow money,” by the sale of any and all the other natural rights of the people at large, as it had “to borrow money” by the sale of the people’s natural rights to lend and hire money.

When the Supreme Court of the United States—assuming to be an oracle, empowered to define authoritatively the legal rights of every human being in the country—declares that congress has a constitutional power to prohibit the use of all that immense mass of money capital, in the shape of promissory notes, which the real property of the country is capable of supplying and sustaining, and which is sufficient to give to every laboring person, man or woman, the means of independence and wealth—when that court says that congress has power to prohibit the use of all this money capital, and grant to a few men a monopoly of money that shall condemn the great body of wealth-producers to hopeless poverty, dependence, and servitude—and when the court has the audacity to make these declarations on such nakedly false and senseless grounds as those that have now been stated, it is clearly time for the people of this country to inquire what constitutions and governments are good for, and whether they (the people) have any natural right, as human beings, to live for themselves, or only for a few conspirators, swindlers, usurpers, robbers, and tyrants, who employ lawmakers, judges, etc., to do their villainous work upon their fellow-men.

The court gave their sanction to the monopoly of money in these three separate cases, viz.: Veazie Bank vs. Fenno, 8 Wallace, 549 (1869). National Bank vs. United States, 101 U. S. Reports, 5 and 6 (1879). Juliard vs. Greenman, 110 U. S. Reports 445-6 (1884).

Section XXIII.

If anything could add to the disgust and detestation which the monstrous falsifications of the constitution, already described, should excite towards the court that resorts to them, it would be the fact that the court, not content with falsifying to the utmost the constitution itself, goes outside of the constitution, to the tyrannical [81] practices of what it calls the “sovereign” governments of “other civilized nations,” to justify the same practices by our own.

It asserts, over and over again, the idea that our government is a “sovereign” government; that it has the same rights of “sovereignty,” as the governments of “other civilized nations”; especially those in Europe.

What, then, is a “sovereign” government? It is a government that is “sovereign” over all the natural rights of the people. This is the only “sovereignty” that any government can be said to have. Under it, the people have no rights. They are simply “subjects,”—that is, slaves. They have but one law, and one duty, viz., obedience, submission. They are not recognized as having any rights. They can claim nothing as their own. They can only accept what the government chooses to give them. The government owns them and their property; and disposes of them and their property, at its pleasure, or discretion; without regard to any consent, or dissent, on their part.

Such was the “sovereignty” claimed and exercised by the governments of those, so-called, “civilized nations of Europe,” that were in power in 1787, 1788, and 1789, when our constitution was framed and adopted, and the government put in operation under it. And the court now says, virtually, that the constitution intended to give to our government the same “sovereignty” over the natural rights of the people, that those governments had then.

But how did the “civilized governments of Europe” become possessed of such “sovereignty”? Had the people ever granted it to them? Not at all. The governments spurned the idea that they were dependent on the will or consent of their people for their political power. On the contrary, they claimed to have derived it from the only source, from which such “sovereignty” could have been derived; that is, from God Himself.

In 1787, 1788, and 1789, all the great governments of Europe, except England, claimed to exist by what was called “Divine Right.” That is, they claimed to have received authority from God Himself, to rule over their people. And they taught, and a servile and corrupt priesthood taught, that it was a religious duty of the people to obey them. And they kept great standing armies, and hordes of pimps, spies, and ruffians, to keep the people in subjection.

And when, soon afterwards, the revolutionists of France dethroned the king then existing—the Legitimist king, so-called—and asserted the right of the people to choose their own government, these other governments carried on a twenty years’ war against her, to reëstablish the principle of “sovereignty” by “Divine Right.” And in this war, the government of England, although not itself claiming to exist by Divine Right,—but really existing by brute force,—furnished men and money without limit, to reëstablish that principle in France, and to maintain it wherever else, in Europe, it was endangered by the idea of popular rights.

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The principle, then, of “Sovereignty by Divine Right”—sustained by brute force—was the principle on which the governments of Europe then rested; and most of them rest on that principle today. And now the Supreme Court of the United States virtually says that our constitution intended to give to our government the same “sovereignty”—the same absolutism—the same supremacy over all the natural rights of the people—as was claimed and exercised by those “Divine Right” governments of Europe, a hundred years ago!

That I may not be suspected of misrepresenting these men, I give some of their own words as follows:

It is not doubted that the power to establish a standard of value, by which all other values may be measured, or, in other words, to determine what shall be lawful money and a legal tender, is in its nature, and of necessity, a governmental power. It is in all countries exercised by the government.—Hepburn vs. Griswold, 8 Wallace 615.

The court call a power,

To make treasury notes a legal tender for the payment of all debts [private as well as public] a power confessedly possessed by every independent sovereignty other than the United States.—Legal Tender Cases, 12 Wallace, p. 529.

Also, in the same case, it speaks of:

That general power over the currency, which has always been an acknowledged attribute of sovereignty in every other civilized nation than our own.—p. 545.

In this same case, by way of asserting the power of congress to do any dishonest thing that any so-called “sovereign government” ever did, the court say:

Has any one, in good faith, avowed his belief that even a law debasing the current coin, by increasing the alloy [and then making these debased coins a legal tender in payment of debts previously contracted], would be taking private property? It might be impolitic, and unjust, but could its constitutionality be doubted?—p. 552.

In the same case, Bradley said:

As a government, it [the government of the United States] was invested with all the attributes of sovereignty.—p. 555.

Also he said:

Such being the character of the General Government, it seems to be a self-evident proposition that it is invested with all those inherent and implied powers, which, at the time of adopting the constitution, were generally considered to belong to every government, as such, and as being essential to the exercise of its functions.—p. 556.

Also he said:

Another proposition equally clear is, that at the time the constitution was adopted, it was, [83] and for a long time had been, the practice of most, if not all, civilized governments, to employ the public credit as a means of anticipating the national revenues for the purpose of enabling them to exercise their governmental functions.—p. 556.

Also he said:

It is our duty to construe the instrument [the constitution] by its words, in the light of history, of the general nature of government, and the incidents of sovereignty.—p. 55.

Also he said:

The government simply demands that its credit shall be accepted and received by public and private creditors during the pending exigency. Every government has a right to demand this, when its existence is at stake.—p. 560.

Also he said:

These views are exhibited . . . . for the purpose of showing that it [the power to make its notes a legal tender in payment of private debts] is one of those vital and essential powers inhering in every national sovereignty, and necessary to its self-preservation.—p. 564.

In still another legal tender case, the court said:

The people of the United States, by the constitution, established a national government, with sovereign powers, legislative, executive, and judicial.—Juilliard vs. Greenman, 110 U. S. Reports, p. 438.

Also it calls the constitution:

A constitution, establishing a form of government, declaring fundamental principles, and creating a national sovereignty, intended to endure for ages.—p. 439.

Also the court speaks of the government of the United States:

As a sovereign government.—p. 446.

Also it said:

It appears to us to follow, as a logical and necessary consequence, that congress has the power to issue the obligations of the United States in such form, and to impress upon them such qualities as currency, for the purchase of merchandise and the payment of debts, as accord with the usage of other sovereign governments. The power, as incident to the power of borrowing money, and issuing bills or notes of the government for money borrowed, of impressing upon those bills or notes the quality of being a legal tender for the payment of private debts, was a power universally understood to belong to sovereignty, in Europe and America, at the time of the framing and adoption of the constitution of the United States. The governments of Europe, acting through the monarch, or the legislature, according to the distribution of powers under their respective constitutions, had, and have, as sovereign a power of issuing paper money as of stamping coin. This power has been distinctly recognized in an important modern case, ably argued and fully considered, in which the Emperor of Austria, as King of Hungary, obtained from the English Court of Chancery an injunction [84] against the issue, in England, without his license, of notes purporting to be public paper money of Hungary.—p. 447.

Also it speaks of:

Congress, as the legislature of a sovereign nation.—p. 449.

Also it said:

The power to make the notes of the government a legal tender in payment of private debts, being one of the powers belonging to sovereignty in other civilized nations, . . . we are irresistibly impelled to the conclusion that the impressing upon the treasury notes of the United States the quality of being a legal tender in payment of private debts, is an appropriate means, conducive and plainly adapted to the execution of the undoubted powers of congress, consistent with the letter and spirit of the constitution, etc.—p. 450.

On reading these astonishing ideas about “sovereignty”—“sovereignty” over all the natural rights of mankind—“sovereignty,” as it prevailed in Europe “at the time of the framing and adoption of the constitution of the United States”—we are compelled to see that these judges obtained their constitutional law, not from the constitution itself, but from the example of the “Divine Right” governments existing in Europe a hundred years ago. These judges seem never to have heard of the American Revolution, or the French Revolution, or even of the English Revolutions of the seventeenth century—revolutions fought and accomplished to overthrow these very ideas of “sovereignty,” which these judges now proclaim, as the supreme law of this country. They seem never to have heard of the Declaration of Independence, nor of any other declaration of the natural rights of human beings. To their minds, “the sovereignty of governments” is everything; human rights nothing. They apparently cannot conceive of such a thing as a people’s establishing a government as a means of preserving their personal liberty and rights. They can only see what fearful calamities “sovereign governments” would be liable to, if they could not compel their “subjects”—the people—to support them against their will, and at every cost of their property, liberty, and lives. They are utterly blind to the fact, that it is this very assumption of “sovereignty” over all the natural rights of men, that brings governments into all their difficulties, and all their perils. They do not see that it is this very assumption of “sovereignty” over all men’s natural rights, that makes it necessary for the “Divine Right” governments of Europe to maintain not only great standing armies, but also a vile purchased priesthood, that shall impose upon, and help to crush, the ignorant and superstitious people.

These judges talk of “the constitutions” of these “sovereign governments” of Europe, as they existed “at the time of the framing and adoption of the constitution of the United States.” They apparently do not know that those governments had no constitutions at all, except the Will of God, their standing armies, and the judges, lawyers, priests, pimps, spies, and ruffians they kept in their service.

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If these judges had lived in Russia, a hundred years ago, and had chanced to be visited with a momentary spasm of manhood—a fact hardly to be supposed of such creatures—and had been sentenced therefor to the knout, a dungeon, or Siberia, would we ever afterward have seen them, as judges of our Supreme Court, declaring that government to be the model after which ours was formed?

These judges will probably be surprised when I tell them that the constitution of the United States contains no such word as “sovereign,” or “sovereignty”; that it contains no such word as “subjects”; nor any word that implies that the government is “sovereign,” or that the people are “subjects.” At most, it contains only the mistaken idea that a power of making laws—by lawmakers chosen by the people—was consistent with, and necessary to, the maintenance of liberty and justice for the people themselves. This mistaken idea was, in some measure, excusable in that day, when reason and experience had not demonstrated, to their minds, the utter incompatibility of all lawmaking whatsoever with men’s natural rights.

The only other provision of the constitution, that can be interpreted as a declaration of “sovereignty” in the government, is this:

This constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land, and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding.—Art. VI.

This provision I interpret to mean simply that the constitution, laws, and treaties of the United States, shall be “the supreme law of the land”—not anything in the natural rights of the people to liberty and justice, to the contrary notwithstanding—but only that they shall be “the supreme law of the land,” “anything in the constitution or laws of any State to the contrary notwithstanding,”—that is, whenever the two may chance to conflict with each other.

If this is its true interpretation, the provision contains no declaration of “sovereignty” over the natural rights of the people.

Justice is “the supreme law” of this, and all other lands; anything in the constitutions or laws of any nation to the contrary notwithstanding. And if the constitution of the United States intended to assert the contrary, it was simply an audacious lie—a lie as foolish as it was audacious—that should have covered with infamy every man who helped to frame the constitution, or afterward sanctioned it, or that should ever attempt to administer it.

Inasmuch as the constitution declares itself to have been “ordained and established” by

We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity,

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everybody who attempts to administer it, is bound to give it such an interpretation, and only such an interpretation, as is consistent with, and promotive of, those objects, if its language will admit of such an interpretation.

To suppose that “the people of the United States” intended to declare that the constitution and laws of the United States should be “the supreme law of the land,” anything in their own natural rights, or in the natural rights of the rest of mankind, to the contrary notwithstanding, would be to suppose that they intended, not only to authorize every injustice, and arouse universal violence, among themselves, but that they intended also to avow themselves the open enemies of the rights of all the rest of mankind. Certainly no such folly, madness, or criminality as this can be attributed to them by any rational man—always excepting the justices of the Supreme Court of the United States, the lawmakers, and the believers in the “Divine Right” of the cunning and the strong, to establish governments that shall deceive, plunder, enslave, and murder the ignorant and the weak.

Many men, still living, can well remember how, some fifty years ago, those famous champions of “sovereignty,” of arbitrary power, Webster and Calhoun, debated the question, whether, in this country, “sovereignty” resided in the general or State governments. But they never settled the question, for the very good reason that no such thing as “sovereignty” resided in either.

And the question was never settled, until it was settled at the cost of a million of lives, and some ten thousand millions of money. And then it was settled only as the same question had so often been settled before, to wit, that “the heaviest battalions” are “sovereign” over the lighter.

The only real “sovereignty,” or right of “sovereignty,” in this or any other country, is that right of sovereignty which each and every human being has over his or her own person and property, so long as he or she obeys the one law of justice towards the person and property of every other human being. This is the only natural right of sovereignty, that was ever known among men. All other so-called rights of sovereignty are simply the usurpations of impostors, conspirators, robbers, tyrants, and murderers.

It is not strange that we are in such high favor with the tyrants of Europe, when our Supreme Court tells them that our government, although a little different in form, stands on the same essential basis as theirs of a hundred years ago; that it is as absolute and irresponsible as theirs were then; that it will spend more money, and shed more blood, to maintain its power, than they have ever been able to do; that the people have no more rights here than there; and that the government is doing all it can to keep the producing classes as poor here as they are there.

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Section XXIV.

John Marshall has the reputation of having been the greatest jurist the country has ever had. And he unquestionably would have been a great jurist, if the two fundamental propositions, on which all his legal, political, and constitutional ideas were based, had been true.

These propositions were, first, that government has all power; and, secondly, that the people have no rights.

These two propositions were, with him, cardinal principles, from which, I think, he never departed.

For these reasons he was the oracle of all the rapacious classes, in whose interest the government was administered. And from them he got all his fame.

I think his record does not furnish a single instance, in which he ever vindicated men’s natural rights, in opposition to the arbitrary legislation of congress.

He was chief justice thirty-four years: from 1801 to 1835. In all that time, so far as I have known, he never declared a single act of congress unconstitutional; and probably never would have done so, if he had lived to this time.

And, so far as I know, he never declared a single State law unconstitutional, on account of its injustice, or its violation of men’s natural rights; but only on account of its conflict with the constitution, laws, or treaties of the United States.

He was considered very profound on questions of “sovereignty.” In fact, he never said much in regard to anything else. He held that, in this country, “sovereignty” was divided: that the national government was “sovereign” over certain things; and that the State governments were “sovereign” over all other things. He had apparently never heard of any natural, individual, human rights, that had never been delegated to either the general or State governments.

As a practical matter, he seemed to hold that the general government had “sovereignty” enough to destroy as many of the natural rights of the people as it should please to destroy; and that the State governments had “sovereignty” enough to destroy what should be left, if there should be any such. He evidently considered that, to the national government, had been delegated the part of the lion, with the right to devour as much of his prey as his appetite should crave; and that the State governments were jackals, with power to devour what the lion should leave.

In his efforts to establish the absolutism of our governments, he made himself an adept in the use of all those false definitions, and false assumptions, to which courts are driven, who hold that constitutions and statute books are supreme over all natural principles of justice, and over all the natural rights of mankind.

Here is his definition of law. He professes to have borrowed it from some one,—he does not say whom,—but he accepts it as his own.

Law has been defined by a writer, whose definitions especially have been the theme of almost universal panegyric, “To be a rule of civil conduct prescribed by the supreme power

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in a State.” In our system, the legislature of a State is the supreme power, in all cases where its action is not restrained by the constitution of the United States.—Ogden vs. Saunders, 12 Wheaton 347.

This definition is an utterly false one. It denies all the natural rights of the people; and is resorted to only by usurpers and tyrants, to justify their crimes.

The true definition of law is, that it is a fixed, immutable, natural principle; and not anything that man ever made, or can make, unmake, or alter. Thus we speak of the laws of matter, and the laws of mind; of the law of gravitation, the laws of light, heat, and electricity, the laws of chemistry, geology, botany; of physiological laws, of astronomical and atmospherical laws, etc., etc.

All these are natural laws, that man never made, nor can ever unmake, or alter.

The law of justice is just as supreme and universal in the moral world, as these others are in the mental or physical world; and is as unalterable as are these by any human power. And it is just as false and absurd to talk of anybody’s having the power to abolish the law of justice, and set up their own will in its stead, as it would be to talk of their having the power to abolish the law of gravitation, or any of the other natural laws of the universe, and set up their own will in the place of them.

Yet Marshall holds that this natural law of justice is no law at all, in comparison with some “rule of civil conduct prescribed by [what he calls] the supreme power in a State.”

And he gives this miserable definition, which he picked up somewhere—out of the legal filth in which he wallowed—as his sufficient authority for striking down all the natural obligation of men’s contracts, and all men’s natural rights to make their own contracts; and for upholding the State governments in prohibiting all such contracts as they, in their avarice and tyranny, may choose to prohibit. He does it too, directly in the face of that very constitution, which he professes to uphold, and which declares that “No State shall pass any law impairing the [natural] obligation of contracts.”

By the same rule, or on the same definition of law, he would strike down any and all the other natural rights of mankind.

That such a definition of law should suit the purposes of men like Marshall, who believe that governments should have all power, and men no rights, accounts for the fact that, in this country, men have had no “rights”—but only such permits as lawmakers have seen fit to allow them—since the State and United States governments were established,—or at least for the last eighty years.

Marshall also said:

The right [of government] to regulate contracts, to prescribe the rules by which they may be evidenced, to prohibit such as may be deemed mischievous, is unquestionable, and has been universally exercised.—Ogden vs. Saunders, 12 Wheaton 347.

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He here asserts that “the supreme power in a State”—that is, the legislature of a State—has “the right” to “deem it mischievous” to allow men to exercise their natural right to make their own contracts! Contracts that have a natural obligation! And that, if a State legislature thinks it “mischievous” to allow men to make contracts that are naturally obligatory, “its right to prohibit them is unquestionable.”

Is not this equivalent to saying that governments have all power, and the people no rights?

On the same principle, and under the same definition of law, the lawmakers of a State may, of course, hold it “mischievous” to allow men to exercise any of their other natural rights, as well as their right to make their own contracts; and may therefore prohibit the exercise of any, or all, of them.

And this is equivalent to saying that governments have all power, and the people no rights.

If a government can forbid the free exercise of a single one of man’s natural rights, it may, for the same reason, forbid the exercise of any and all of them; and thus establish, practically and absolutely, Marshall’s principle, that the government has all power, and the people no rights.

In the same case, of Ogden vs. Saunders, Marshall’s principle was agreed to by all the other justices, and all the lawyers!

Thus Thompson, one of the justices, said:

Would it not be within the legitimate powers of a State legislature to declare prospectively that no one should be made responsible, upon contracts entered into before arriving at the age of twenty-five years? This, I presume, cannot be doubted.—p. 300.

On the same principle, he might say that a State legislature may declare that no person, under fifty, or seventy, or a hundred, years of age, shall exercise his natural right of making any contract that is naturally obligatory.

In the same case, Trimble, another of the justices, said:

If the positive law [that is, the statute law] of the State declares the contract shall have no obligation, it can have no obligation, whatever may be the principles of natural law in regard to such a contract. This doctrine has been held and maintained by all States and nations. The power of controlling, modifying, and even taking away, all obligation from such contracts as, independently of positive enactions to the contrary, would have been obligatory, has been exercised by all independent sovereigns.—p. 320.

Yes; and why has this power been exercised by “all States and nations,” and “all independent sovereigns”? Solely because these governments have all—or at least so many of them as Trimble had in his mind—been despotic and tyrannical; and have claimed for themselves all power, and denied to the people all rights.

Thus it seems that Trimble, like all the rest of them, got his constitutional law, not from any natural principles of justice, not from men’s natural rights, not from the constitution of the United States, nor even from any constitution affirming [90] men’s natural rights, but from “the doctrine [that] has been held and maintained by all [those] States and nations,” and “all [those] independent sovereigns,” who have usurped all power, and denied all the natural rights of mankind.

Marshall gives another of his false definitions, when, speaking for the whole court, in regard to the power of congress “to regulate commerce with foreign nations, and among the several States,” he asserts the right of congress to an arbitrary, absolute dominion over all men’s natural rights to carry on such commerce. Thus he says:

What is this power? It is the power to regulate: that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed by the constitution. These are expressed in plain terms, and do not affect the questions which arise in this case, or which have been discussed at the bar. If, as has always been understood, the sovereignty of congress, though limited to specific objects, is plenary as to those objects, the power over commerce with foreign nations, and among the several States, is vested in congress as absolutely as it would be in a single government, having in its constitution the same restrictions on the exercise of the power as are found in the constitution of the United States. The wisdom and the discretion of congress, their identity with the people, and the influence which their constituents possess at elections, are, in this, as in many other instances, as that, for example, of declaring war, the sole restraints on which they [the people] have relied, to secure them from its abuse. They are the restraints on which the people must often rely solely, in all representative governments.—Gibbons vs. Ogden, 9 Wheaton 196.

This is a general declaration of absolutism over all “commerce with foreign nations and among the several States,” with certain exceptions mentioned in the constitution; such as that “all duties, imposts, and excises shall be uniform throughout the United States,” and “no tax or duty shall be laid on articles exported from any State,” and “no preference shall be given, by any regulation of commerce or revenue, to the ports of one State over those of another; nor shall vessels bound to, or from, one State, be obliged to enter, clear, or pay duties in another.”

According to this opinion of the court, congress has—subject to the exceptions referred to—absolute, irresponsible dominion over “all commerce with foreign nations, and among the several States”; and all men’s natural rights to trade with each other, among the several States, and all over the world, are prostrate under the feet of a contemptible, detestable, and irresponsible cabal of lawmakers; and the people have no protection or redress for any tyranny or robbery that may be practised upon them, except “the wisdom and the discretion of congress, their identity with the people, and the influence which their constituents possess at elections”!

It will be noticed that the court say that “all the other powers, vested in congress, are complete in themselves, and may be exercised to their utmost extent, and acknowledge no limitations, other than those prescribed by the constitution.”

They say that among “all the other [practically unlimited] powers, vested in [91] congress,” is the power “of declaring war”; and, of course, of carrying on war; that congress has power to carry on war, for any reason, to any extent, and against any people, it pleases.

Thus they say, virtually, that the natural rights of mankind impose no constitutional restraints whatever upon congress, in the exercise of their lawmaking powers.

Is not this asserting that governments have all power, and the people no rights?

But what is to be particularly noticed, is the fact that Marshall gives to congress all this practically unlimited power over all “commerce with foreign nations, and among the several States,” solely on the strength of a false definition of the verb “to regulate.” He says that “the power to regulate commerce” is the power “to prescribe the rule by which commerce is to be governed.”

This definition is an utterly false, absurd, and atrocious one. It would give congress power arbitrarily to control, obstruct, impede, derange, prohibit, and destroy commerce.

The verb “to regulate” does not, as Marshall asserts, imply the exercise of any arbitrary control whatever over the thing regulated; nor any power “to prescribe [arbitrarily] the rule, by which” the thing regulated “is to be governed.” On the contrary, it comes from the Latin word, regula, a rule; and implies the pre-existence of a rule, to which the thing regulated is made to conform.

To regulate one’s diet, for example, is not, on the one hand, to starve one’s self to emaciation, nor, on the other, to gorge one’s self with all sorts of indigestible and hurtful substances, in disregard of the natural laws of health. But it supposes the pre-existence of the natural laws of health, to which the diet is made to conform.

A clock is not “regulated,” when it is made to go, to stop, to go forwards, to go backwards, to go fast, to go slow, at the mere will or caprice of the person who may have it in hand. It is “regulated” only when it is made to conform to, to mark truly, the diurnal revolutions of the earth. These revolutions of the earth constitute the pre-existing rule, by which alone a clock can be regulated.

A mariner’s compass is not “regulated,” when the needle is made to move this way and that, at the will of an operator, without reference to the north pole. But it is regulated when it is freed from all disturbing influences, and suffered to point constantly to the north, as it is its nature to do.

A locomotive is not “regulated,” when it is made to go, to stop, to go forwards, to go backwards, to go fast, to go slow, at the mere will and caprice of the engineer, and without regard to economy, utility, or safety. But it is regulated, when its motions are made to conform to a pre-existing rule, that is made up of economy, utility, and safety combined. What this rule is, in the case of a locomotive, may not be known with such scientific precision, as is the rule in the case of a clock, or a mariner’s compass; but it may be approximated with sufficient accuracy for practical purposes.

The pre-existing rule, by which alone commerce can be “regulated,” is a matter of science; and is already known, so far as the natural principle of justice, in relation to contracts, is known. The natural right of all men to make all contracts whatsoever, that are naturally and intrinsically just and lawful, furnishes the pre-existing rule, by which alone commerce can be regulated. And it is the only rule, to which congress have any constitutional power to make commerce conform.

When all commerce, that is intrinsically just and lawful, is secured and protected, and all [92] commerce that is intrinsically unjust and unlawful, is prohibited, then commerce is regulated, and not before.*

This false definition of the verb “to regulate” has been used, time out of mind, by knavish lawmakers and their courts, to hide their violations of men’s natural right to do their own businesses in all such ways—that are naturally and intrinsically just and lawful—as they may choose to do them in. These lawmakers and courts dare not always deny, utterly and plainly, men’s right to do their own businesses in their own ways; but they will assume “to regulate” them; and in pretending simply “to regulate” them, they contrive “to regulate” men out of all their natural rights to do their own businesses in their own ways.

How much have we all heard (we who are old enough), within the last fifty years, of the power of congress, or of the States, “to regulate the currency.” And “to regulate the currency” has always meant to fix the kind, and limit the amount, of currency, that men may be permitted to buy and sell, lend and borrow, give and receive, in their dealings with each other. It has also meant to say who shall have the control of the licensed money; instead of making it mean the suppression only of false and dishonest money, and then leaving all men free to exercise their natural right of buying and selling, borrowing and lending, giving and receiving, all such, and so much, honest and true money, or currency, as the parties to any or all contracts may mutually agree upon.

Marshall’s false assumptions are numerous and tyrannical. They all have the same end in view as his false definitions; that is, to establish the principle that governments have all power, and the people no rights. They are so numerous that it would be tedious, if not impossible, to describe them all separately. Many, or most, of them are embraced in the following, viz.:

1. The assumption that, by a certain paper, called the constitution of the United States—a paper (I repeat and reiterate) which nobody ever signed, which but few persons ever read, and which the great body of the people never saw—and also by some forty subsidiary papers, called State constitutions, which also nobody ever signed, which but few persons ever read, and which the great body of the people never saw—all making a perfect system of the merest nothingness—the assumption, I say, that, by these papers, the people have all consented to the abolition of justice itself, the highest moral law of the Universe; and that all their own natural, inherent, inalienable rights to the benefits of that law, shall be annulled; and that they themselves, and everything that is theirs, shall be given over into the irresponsible custody of some forty little cabals of blockheads and villains called lawmakers—blockheads, who imagine themselves wiser than justice itself, and villains, who care nothing for either wisdom or justice, but only for the [93] gratification of their own avarice and ambitions; and that these cabals shall be invested with the right to dispose of the property, liberty, and lives of all the rest of the people, at their pleasure or discretion; or, as Marshall says, “their wisdom and discretion!”

If such an assumption as that does not embrace nearly, or quite, all the other false assumptions that usurpers and tyrants can ever need, to justify themselves in robbing, enslaving, and murdering all the rest of mankind, it is less comprehensive than it appears to me to be.

2. In the following paragraph may be found another batch of Marshall’s false assumptions.

The right to contract is the attribute of a free agent, and he may rightfully coerce performance from another free agent, who violates his faith. Contracts have consequently an intrinsic obligation. [But] When men come into society, they can no longer exercise this original natural right of coercion. It would be incompatible with general peace, and is therefore surrendered. Society prohibits the use of private individual coercion, and gives in its place a more safe and more certain remedy. But the right to contract is not surrendered with the right to coerce performance.—Ogden vs. Saunders, 12 Wheaton 350.

In this extract, taken in connection with the rest of his opinion in the same case, Marshall convicts himself of the grossest falsehood. He acknowledges that men have a natural right to make their own contracts; that their contracts have an “intrinsic obligation”; and that they have an “original and natural right” to coerce performance of them. And yet he assumes, and virtually asserts, that men voluntarily “come into society,” and “surrender” to “society” their natural right to coerce the fulfilment of their contracts. He assumes, and virtually asserts, that they do this, upon the ground, and for the reason, that “society gives in its place a more safe and more certain remedy”; that is, “a more safe and more certain” enforcement of all men’s contracts that have “an intrinsic obligation.”

In thus saying that “men come into society,” and “surrender” to society, their “original and natural right” of coercing the fulfilment of contracts, and that “society gives in its place a more safe and certain remedy,” he virtually says, and means to say, that, in consideration of such “surrender” of their “original and natural right of coercion,” “society” pledges itself to them that it will give them this “more safe and more certain remedy”; that is, that it will more safely and more certainly enforce their contracts than they can do it themselves.

And yet, in the same opinion—only two and three pages preceding this extract—he declares emphatically that “the right” of government—or of what he calls “society”—“to prohibit such contracts as may be deemed mischievous, is unquestionable.”—p. 347.

And as an illustration of the exercise of this right of “society” to prohibit such contracts “as may be deemed mischievous,” he cites the usury laws, thus:

The acts against usury declare the contract to be void in the beginning. They deny that [94] the instrument ever became a contract. They deny it all original obligation; and cannot impair that which never came into existence.—p. 348.

All this is as much as to say that, when a man has voluntarily “come into society,” and has “surrendered” to society “his original and natural right of coercing” the fulfilment of his contracts, and when he has done this in the confidence that society will fulfil its pledge to “give him a more safe and more certain coercion” than he was capable of himself, “society” may then turn around to him, and say:

We acknowledge that you have a natural right to make your own contracts. We acknowledge that your contracts have “an intrinsic obligation.” We acknowledge that you had “an original and natural right” to coerce the fulfilment of them. We acknowledge that it was solely in consideration of our pledge to you, that we would give you a more safe and more certain coercion than you were capable of yourself, that you “surrendered” to us your right to coerce a fulfilment of them. And we acknowledge that, according to our pledge, you have now a right to require of us that we coerce a fulfilment of them. But after you had “surrendered” to us your own right of coercion, we took a different view of the pledge we had given you; and concluded that it would be “mischievous” to allow you to make such contracts. We therefore “prohibited” your making them. And having prohibited the making of them, we cannot now admit that they have any “obligation.” We must therefore decline to enforce the fulfilment of them. And we warn you that, if you attempt to enforce them, by virtue of your own “original and natural right of coercion,” we shall be obliged to consider your act a breach of “the general peace,” and punish you accordingly. We are sorry that you have lost your property, but “society” must judge as to what contracts are, and what are not, “mischievous.” We can therefore give you no redress. Nor can we suffer you to enforce your own rights, or redress your own wrongs.

Such is Marshall’s theory of the way in which “society” got possession of all men’s “original and natural right” to make their own contracts, and enforce the fulfilment of them; and of the way in which “society” now justifies itself in prohibiting all contracts, though “intrinsically obligatory,” which it may choose to consider “mischievous.” And he asserts that, in this way, “society” has acquired “an unquestionable right” to cheat men out of all their “original and natural right” to make their own contracts, and enforce the fulfilment of them.

A man’s “original and natural right” to make all contracts that are “intrinsically obligatory,” and to coerce the fulfilment of them, is one of the most valuable and indispensable of all human possessions. But Marshall assumes that a man may “surrender” this right to “society,” under a pledge from “society,” that it will secure to him “a more safe and certain” fulfilment of his contracts, than he is capable of himself; and that “society,” having thus obtained from him this “surrender,” may then turn around to him, and not only refuse to fulfil its pledge to him, but may also prohibit his own exercise of his own “original and natural right,” which he has “surrendered” to “society!”

This is as much as to say that, if A can but induce B to intrust his (B’s) property [95] with him (A), for safekeeping, under a pledge that he (A) will keep it more safely and certainly than B can do it himself, A thereby acquires an “unquestionable right” to keep the property forever, and let B whistle for it!

This is the kind of assumption on which Marshall based all his ideas of the constitutional law of this country; that constitutional law, which he was so famous for expounding. It is the kind of assumption, by which he expounded the people out of all their “original and natural rights.”

He had just as much right to assume, and practically did assume, that the people had voluntarily “come into society,” and had voluntarily “surrendered” to their governments all their other natural rights, as well as their “original and natural right” to make and enforce their own contracts.

He virtually said to all the people of this country:

You have voluntarily “come into society,” and have voluntarily “surrendered” to your governments all your natural rights, of every name and nature whatsoever, for safe keeping; and now that these governments have, by your own consent, got possession of all your natural rights, they have an “unquestionable right” to withhold them from you forever.

If it were not melancholy to see mankind thus cheated, robbed, enslaved, and murdered, on the authority of such naked impostures as these, it would be, to the last degree, ludicrous, to see a man like Marshall—reputed to be one of the first intellects the country has ever had—solemnly expounding the “constitutional powers,” as he called them, by which the general and State governments were authorized to rob the people of all their natural rights as human beings.

And yet this same Marshall has done more than any other one man—certainly more than any other man within the last eighty-five years—to make our governments, State and national, what they are. He has, for more than sixty years, been esteemed an oracle, not only by his associates and successors on the bench of the Supreme Court of the United States, but by all the other judges, State and national, by all the ignorant, as well as knavish, lawmakers in the country, and by all the sixty to a hundred thousand lawyers, upon whom the people have been, and are, obliged to depend for the security of their rights.

This system of false definitions, false assumptions, and fraud and usurpation generally, runs through all the operations of our governments, State and national. There is nothing genuine, nothing real, nothing true, nothing honest, to be found in any of them. They all proceed upon the principle, that governments have all power, and the people no rights.

Section XXV.

But perhaps the most absolute proof that our national lawmakers and judges are as regardless of all constitutional, as they are of all natural, law, and that their [96] statutes and decisions are as destitute of all constitutional, as they are of all natural, authority, is to be found in the fact that these lawmakers and judges have trampled upon, and utterly ignored, certain amendments to the constitution, which had been adopted, and (constitutionally speaking) become authoritative, as early as 1791; only two years after the government went into operation.

If these amendments had been obeyed, they would have compelled all congresses and courts to understand that, if the government had any constitutional powers at all, they were simply powers to protect men’s natural rights, and not to destroy any of them.

These amendments have actually forbidden any lawmaking whatever in violation of men’s natural rights. And this is equivalent to a prohibition of any lawmaking at all. And if lawmakers and courts had been as desirous of preserving men’s natural rights, as they have been of violating them, they would long ago have found out that, since these amendments, the constitution authorized no lawmaking at all.

These amendments were ten in number. They were recommended by the first congress, at its first session, in 1789; two-thirds of both houses concurring. And in 1791, they had been ratified by all the States: and from that time they imposed the restrictions mentioned upon all the powers of congress.

These amendments were proposed, by the first congress, for the reason that, although the constitution, as originally framed, had been adopted, its adoption had been procured only with great difficulty, and in spite of great objections. These objections were that, as originally framed and adopted, the constitution contained no adequate security for the private rights of the people.

These objections were admitted, by very many, if not all, the friends of the constitution themselves, to be very weighty; and such as ought to be immediately removed by amendments. And it was only because these friends of the constitution pledged themselves to use their influence to secure these amendments, that the adoption of the constitution itself was secured. And it was in fulfilment of these pledges, and to remove these objections, that the amendments were proposed and adopted.

The first eight amendments specified particularly various prohibitions upon the power of congress; such, for example, as those securing to the people the free exercise of religion, the freedom of speech and the press, the right to keep and bear arms, etc., etc. Then followed the ninth amendment, in these words:

The enumeration in the constitution, of certain rights, [retained by the people] shall not be construed to deny or disparage others retained by the people.

Here is an authoritative declaration, that “the people” have “other rights” than those specially “enumerated in the constitution”; and that these “other rights” were “retained by the people”; that is, that congress should have no power to infringe them.

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What, then, were these “other rights,” that had not been “enumerated”; but which were nevertheless “retained by the people”?

Plainly they were men’s natural “rights”; for these are the only “rights” that “the people” ever had, or, consequently, that they could “retain.”

And as no attempt is made to enumerate all these “other rights,” or any considerable number of them, and as it would be obviously impossible to enumerate all, or any considerable number, of them; and as no exceptions are made of any of them, the necessary, the legal, the inevitable inference is, that they were all “retained”; and that congress should have no power to violate any of them.

Now, if congress and the courts had attempted to obey this amendment, as they were constitutionally bound to do, they would soon have found that they had really no lawmaking power whatever left to them; because they would have found that they could make no law at all, of their own invention, that would not violate men’s natural rights.

All men’s natural rights are co-extensive with natural law, the law of justice; or justice as a science. This law is the exact measure, and the only measure, of any and every man’s natural rights. No one of these natural rights can be taken from any man, without doing him an injustice; and no more than these rights can be given to any one, unless by taking from the natural rights of one or more others.

In short, every man’s natural rights are, first, the right to do, with himself and his property, everything that he pleases to do, and that justice towards others does not forbid him to do; and, secondly, to be free from all compulsion, by others, to do anything whatever, except what justice to others requires him to do.

Such, then, has been the constitutional law of this country since 1791; admitting, for the sake of the argument—what I do not really admit to be a fact—that the constitution, so called, has ever been a law at all.

This amendment, from the remarkable circumstances under which it was proposed and adopted, must have made an impression upon the minds of all the public men of the time; although they may not have fully comprehended, and doubtless did not fully comprehend, its sweeping effects upon all the supposed powers of the government.

But whatever impression it may have made upon the public men of that time, its authority and power were wholly lost upon their successors; and probably, for at least eighty years, it has never been heard of, either in congress or the courts.

John Marshall was perfectly familiar with all the circumstances, under which this, and the other nine amendments, were proposed and adopted. He was thirty-two years old (lacking seven days) when the constitution, as originally framed, was published (September 17, 1787); and he was a member of the Virginia convention that ratified it. He knew perfectly the objections that were raised to it, in that convention, on the ground of its inadequate guaranty of men’s natural rights. He knew with what force these objections were urged by some of the ablest members [98] of the convention. And he knew that, to obviate these objections, the convention, as a body, without a dissenting voice, so far as appears, recommended that very stringent amendments, for securing men’s natural rights, be made to the constitution. And he knew further, that, but for these amendments being recommended, the constitution would not have been adopted by the convention.*

The amendments proposed were too numerous to be repeated here, although they would be very instructive, as showing how jealous the people were, lest their natural rights should be invaded by laws made by congress. And that the convention might do everything in its power to secure the adoption of these amendments, it resolved as follows:

And the convention do, in the name and behalf of the people of this commonwealth, enjoin it upon their representatives in congress to exert all their influence, and use all reasonable and legal methods, to obtain a ratification of the foregoing alterations and provisions, in the manner provided by the 5th article of the said Constitution; and, in all congressional laws to be passed in the meantime, to conform to the spirit of these amendments, as far as the said Constitution will admit.—Elliot’s Debates, Vol. 3, p. 661.

In seven other State conventions, to wit, in those of Massachusetts, New Hampshire, Rhode Island, New York, Maryland, North Carolina, and South Carolina, the inadequate security for men’s natural rights, and the necessity for amendments, were admitted, and insisted upon, in very similar terms to those in Virginia.

In Massachusetts, the convention proposed nine amendments to the constitution; and resolved as follows:

And the convention do, in the name and in the behalf of the people of this commonwealth, enjoin it upon their representatives in Congress, at all times, until the alterations and provisions aforesaid have been considered, agreeably to the 5th article of the said Constitution, to exert all their influence, and use all reasonable and legal methods, to obtain a ratification of the said alterations and provisions, in such manner as is provided in the said article.—Elliot’s Debates, Vol. 2, p. 178.

The New Hampshire convention, that ratified the constitution, proposed twelve amendments, and added:

And the Convention do, in the name and behalf of the people of this State, enjoin it upon their representatives in congress, at all times, until the alterations and provisions aforesaid have been considered agreeably to the fifth article of the said Constitution, to exert all their influence, and use all reasonable and legal methods, to obtain a ratification of the said alterations and provisions, in such manner as is provided in the article.—Elliot’s Debates, Vol. 1, p. 326.

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The Rhode Island convention, in ratifying the constitution, put forth a declaration of rights, in eighteen articles, and also proposed twenty-one amendments to the constitution; and prescribed as follows:

And the Convention do, in the name and behalf of the people of the State of Rhode Island and Providence Plantations, enjoin it upon their senators and representative or representatives, which may be elected to represent this State in congress, to exert all their influence, and use all reasonable means, to obtain a ratification of the following amendments to the said Constitution, in the manner prescribed therein; and in all laws to be passed by the congress in the mean time, to conform to the spirit of the said amendments, as far as the Constitution will admit.—Elliot’s Debates, Vol. 1, p. 335.

The New York convention, that ratified the constitution, proposed a great many amendments, and added:

And the Convention do, in the name and behalf of the people of the State of New York, enjoin it upon their representatives in congress, to exert all their influence, and use all reasonable means, to obtain a ratification of the following amendments to the said Constitution, in the manner prescribed therein; and in all laws to be passed by the congress, in the mean time, to conform to the spirit of the said amendments as far as the Constitution will admit.—Elliot’s Debates, Vol. 1, p. 329.

The New York convention also addressed a “Circular Letter” to the governors of all the other States, the first two paragraphs of which are as follows:

Lysander Spooner

Spooner, Lysander

July 28, 1788

Poughkeepsie,

The Circular Letter, From the Convention of the State of New York to the Governors of the several States in the Union.

Poughkeepsie,

July 28, 1788

.

Sir,

We, the members of the Convention of this State, have deliberately and maturely considered the Constitution proposed for the United States. Several articles in it appear so exceptionable to a majority of us, that nothing but the fullest confidence of obtaining a revision of them by a general convention, and an invincible reluctance to separating from our sister States, could have prevailed upon a sufficient number to ratify it, without stipulating for previous amendments. We all unite in opinion, that such a revision will be necessary to recommend it to the approbation and support of a numerous body of our constituents.

We observe that amendments have been proposed, and are anxiously desired, by several of the States, as well as by this; and we think it of great importance that effectual measures be immediately taken for calling a convention, to meet at a period not far remote; for we are convinced that the apprehensions and discontents, which those articles occasion, cannot be removed or allayed, unless an act to provide for it be among the first that shall be passed by the new congress.—Elliot’s Debates, Vol. 2, p. 413.

In the Maryland convention, numerous amendments were proposed, and thirteen were agreed to; “most of them by a unanimous vote, and all by a great majority.” Fifteen others were proposed, but there was so much disagreement in regard to them, that none at all were formally recommended to congress. But, says Elliot:

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All the members, who voted for the ratification [of the constitution], declared that they would engage themselves, under every tie of honor, to support the amendments they had agreed to, both in their public and private characters, until they should become a part of the general government.—Elliot’s Debates, Vol. 2, pp. 550, 552-3.

The first North Carolina convention refused to ratify the constitution, and

Resolved, That a declaration of rights, asserting and securing from encroachments the great principles of civil and religious liberty, and the inalienable rights of the people, together with amendments to the most ambiguous and exceptionable parts of the said constitution of government, ought to be laid before congress, and the convention of States that shall or may be called for the purpose of amending the said Constitution, for their consideration, previous to the ratification of the Constitution aforesaid, on the part of the State of North Carolina.—Elliot’s Debates, Vol. 1, p. 332.

The South Carolina convention, that ratified the constitution, proposed certain amendments, and

Resolved, That it be a standing instruction to all such delegates as may hereafter be elected to represent this State in the General Government, to exert their utmost abilities and influence to effect an alteration of the Constitution, conformably to the foregoing resolutions.—Elliot’s Debates, Vol. 1. p. 325.

In the Pennsylvania convention, numerous objections were made to the constitution, but it does not appear that the convention, as a convention, recommended any specific amendments. But a strong movement, outside of the convention, was afterwards made in favor of such amendments. (“Elliot’s Debates,” Vol. 2, p. 542.)

Of the debates in the Connecticut convention, Elliot gives only what he calls “A Fragment.”

Of the debates in the conventions of New Jersey, Delaware, and Georgia, Elliot gives no accounts at all.

I therefore cannot state the grounds, on which the adoption of the constitution was opposed. They were doubtless very similar to those in the other States. This is rendered morally certain by the fact, that the amendments, soon afterwards proposed by congress, were immediately ratified by all the States. Also by the further fact, that these States, by reason of the smallness of their representation in the popular branch of congress, would naturally be even more jealous of their rights, than the people of the larger States.

It is especially worthy of notice that, in some, if not in all, the conventions that ratified the constitution, although the ratification was accompanied by such urgent recommendations of amendments, and by an almost absolute assurance that they would be made, it was nevertheless secured only by very small majorities.

Thus in Virginia, the vote was only 89 ayes to 79 nays. (Elliot, Vol. 3, p. 654.)

In Massachusetts, the ratification was secured only by a vote of 187 yeas to 168 nays. (Elliot, Vol. 2, p. 181.)

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In New York, the vote was only 30 yeas to 27 nays. (Elliot, Vol. 2, p. 413.)

In New Hampshire and Rhode Island, neither the yeas nor nays are given. (Elliot, Vol. 1, pp. 327-335.)

In Connecticut, the yeas were 128; nays not given. (Elliot, Vol. 1, p. 321-2.)

In New Jersey, the yeas were 38; nays not given. (Elliot, Vol. 1, p. 321.)

In Pennsylvania, the yeas were 46; the nays not given. (Elliot, Vol. 1, p. 320.)

In Delaware, the yeas were 30; nays not given. (Elliot, Vol. 1, p. 319.)

In Maryland, the vote was 57 yeas; nays not given. (Elliot, Vol. 1, p. 325.)

In North Carolina, neither the yeas nor nays are given. (Elliot, Vol. 1, p. 333.)

In South Carolina, neither the yeas nor nays are given. (Elliot, Vol. 1, p. 325.)

In Georgia, the yeas were 26; nays not given. (Elliot, Vol. 1, p. 324.)

We can thus see by what meagre votes the constitution was adopted. We can also see that, but for the prospect that important amendments would be made, specially for securing the natural rights of the people, the constitution would have been spurned with contempt, as it deserved to be.

And yet now, owing to the usurpations of lawmakers and courts, the original constitution—with the worst possible construction put upon it—has been carried into effect; and the amendments have been simply cast into the waste baskets.

Marshall was thirty-six years old, when these amendments became a part of the constitution in 1791. Ten years after, in 1801, he became Chief Justice. It then became his sworn constitutional duty to scrutinize severely every act of congress, and to condemn, as unconstitutional, all that should violate any of these natural rights. Yet he appears never to have thought of the matter afterwards. Or, rather, this ninth amendment, the most important of all, seems to have been so utterly antagonistic to all his ideas of government, that he chose to ignore it altogether, and, as far as he could, to bury it out of sight.

Instead of recognizing it as an absolute guaranty of all the natural rights of the people, he chose to assume—for it was all a mere assumption, a mere making a constitution out of his own head, to suit himself—that the people had all voluntarily “come into society,” and had voluntarily “surrendered” to “society” all their natural rights, of every name and nature—trusting that they would be secured; and that now, “society,” having thus got possession of all these natural rights of the people, had the “unquestionable right” to dispose of them, at the pleasure—or, as he would say, according to the “wisdom and discretion”—of a few contemptible, detestable, and irresponsible lawmakers, whom the constitution (thus amended) had forbidden to dispose of any one of them.

If, now, Marshall did not see, in this amendment, any legal force or authority, what becomes of his reputation as a constitutional lawyer? If he did see this force and authority, but chose to trample them under his feet, he was a perjured tyrant and traitor.

What, also, are we to think of all the judges,—forty in all,—his associates and [102] successors, who, for eighty years, have been telling the people that the government has all power, and the people no rights? Have they all been mere blockheads, who never read this amendment, or knew nothing of its meaning? Or have they, too, been perjured tyrants and traitors?

What, too, becomes of those great constitutional lawyers, as we have called them, who have been supposed to have won such immortal honors, as “expounders of the constitution,” but who seem never to have discovered in it any security for men’s natural rights? Is their apparent ignorance, on this point, to be accounted for by the fact, that that portion of the people, who, by authority of the government, are systematically robbed of all their earnings, beyond a bare subsistence, are not able to pay such fees as are the robbers who are authorized to plunder them?

If any one will now look back to the records of congress and the courts, for the last eighty years, I do not think he will find a single mention of this amendment. And why has this been so? Solely because the amendment—if its authority had been recognized—would have stood as an insuperable barrier against all the ambition and rapacity—all the arbitrary power, all the plunder, and all the tyranny—which the ambitious and rapacious classes have determined to accomplish through the agency of the government.

The fact that these classes have been so successful in perverting the constitution (thus amended) from an instrument avowedly securing all men’s natural rights, into an authority for utterly destroying them, is a sufficient proof that no lawmaking power can be safely intrusted to any body, for any purpose whatever.

And that this perversion of the constitution should have been sanctioned by all the judicial tribunals of the country, is also a proof, not only of the servility, audacity, and villainy of the judges, but also of the utter rottenness of our judicial system. It is a sufficient proof that judges, who are dependent upon lawmakers for their offices and salaries, and are responsible to them by impeachment, cannot be relied on to put the least restraint upon the acts of their masters, the lawmakers.

Such, then, would have been the effect of the ninth amendment, if it had been permitted to have its legitimate authority.

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.”

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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, [104] 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 [105] 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 [106] 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.

Section XXVII.

Of course we can have no courts of justice, under such systems of lawmaking, and supreme court decisions, as now prevail.

We have a population of fifty to sixty millions; and not a single court of justice, State or national!

But we have everywhere courts of injustice—open and avowed injustice—claiming sole jurisdiction of all cases affecting men’s rights of both person and property; and having at their beck brute force enough to compel absolute submission to their decrees, whether just or unjust.

Can a more decisive or infallible condemnation of our governments be conceived of, than the absence of all courts of justice, and the absolute power of their courts of injustice?

Yes, they lie under still another condemnation, to wit, that their courts are not only courts of injustice, but they are also secret tribunals; adjudicating all causes according to the secret instructions of their masters, the lawmakers, and their authorized interpreters, their supreme courts.

I say secret tribunals, and secret instructions, because, to the great body of the people, whose rights are at stake, they are secret to all practical intents and purposes. They are secret, because their reasons for their decrees are to be found only in great volumes of statutes and supreme court reports, which the mass of the people have neither money to buy, nor time to read; and would not understand, if they were to read them.

These statutes and reports are so far out of reach of the people at large, that the only knowledge a man can ordinarily get of them, when he is summoned before [107] one of the tribunals appointed to execute them, is to be obtained by employing an expert—or so-called lawyer—to enlighten him.

This expert in injustice is one who buys these great volumes of statutes and reports, and spends his life in studying them, and trying to keep himself informed of their contents. But even he can give a client very little information in regard to them; for the statutes and decisions are so voluminous, and are so constantly being made and unmade, and are so destitute of all conformity to those natural principles of justice which men readily and intuitively comprehend; and are moreover capable of so many different interpretations, that he is usually in as great doubt—perhaps in even greater doubt—than his client, as to what will be the result of a suit.

The most he can usually say to his client, is this:

Every civil suit must finally be given to one of two persons, the plaintiff or defendant. Whether, therefore, your cause is a just, or an unjust, one, you have at least one chance in two, of gaining it. But no matter how just your cause may be, you need have no hope that the tribunal that tries it, will be governed by any such consideration, if the statute book, or the past decisions of the supreme court, are against you. So, also, no matter how unjust your cause may be, you may nevertheless expect to gain it, if the statutes and past decisions are in your favor. If, therefore, you have money to spend in such a lottery as this, I will do my best to gain your cause for you, whether it be a just, or an unjust, one.

If the charge is a criminal one, this expert says to his client:

You must either be found guilty, or acquitted. Whether, therefore, you are really innocent or guilty, you have at least one chance in two, of an acquittal. But no matter how innocent you may be of any real crime, you need have no hope of an acquittal, if the statute book, or the past decisions of the supreme court, are against you. If, on the other hand, you have committed a real wrong to another, there may be many laws on the statute book, many precedents, and technicalities, and whimsicalities, through which you may hope to escape. But your reputation, your liberty, or perhaps your life, is at stake. To save these you can afford to risk your money, even though the result is so uncertain. Therefore you had best give me your money, and I will do my best to save you, whether you are innocent or guilty.

But for the great body of the people,—those who have no money that they can afford to risk in a lawsuit,—no matter what may be their rights in either a civil or criminal suit,—their cases are hopeless. They may have been taxed, directly and indirectly, to their last dollars, for the support of the government; they may even have been compelled to risk their lives, and to lose their limbs, in its defence; yet when they want its protection,—that protection for which their taxes and military services were professedly extorted from them,—they are coolly told that the government offers no justice, nor even any chance or semblance of justice, except to those who have more money than they.

But the point now to be specially noticed is, that in the case of either the civil [108] or criminal suit, the client, whether rich or poor, is nearly or quite as much in the dark as to his fate, and as to the grounds on which his fate will be determined, as though he were to be tried by an English Star Chamber court, or one of the secret tribunals of Russia, or even the Spanish Inquisition.

Thus in the supreme exigencies of a man’s life, whether in civil or criminal cases, where his property, his reputation, his liberty, or his life is at stake, he is really to be tried by what is, to him, at least, a secret tribunal; a tribunal that is governed by what are, to him, the secret instructions of lawmakers, and supreme courts; neither of whom care anything for his rights of property in a civil suit, or for his guilt or innocence in a criminal one; but only for their own authority as lawmakers and judges.

The bystanders, at these trials, look on amazed, but powerless to defend the right, or prevent the wrong. Human nature has no rights, in the presence of these infernal tribunals.

Is it any wonder that all men live in constant terror of such a government as that? Is it any wonder that so many give up all attempts to preserve their natural rights of person and property, in opposition to tribunals, to whom justice and injustice are indifferent, and whose ways are, to common minds, hidden mysteries, and impenetrable secrets.

But even this is not all. The mode of trial, if not as infamous as the trial itself, is at least so utterly false and absurd, as to add a new element of uncertainty to the result of all judicial proceedings.

A trial in one of these courts of injustice is a trial by battle, almost, if not quite, as really as was a trial by battle, five hundred or a thousand years ago.

Now, as then, the adverse parties choose their champions, to fight their battles for them.

These champions, trained to such contests, and armed, not only with all the weapons their own skill, cunning, and power can supply, but also with all the iniquitous laws, precedents, and technicalities that lawmakers and supreme courts can give them, for defeating justice, and accomplishing injustice, can—if not always, yet none but themselves know how often—offer their clients such chances of victory—independently of the justice of their causes—as to induce the dishonest to go into court to evade justice, or accomplish injustice, not less often perhaps than the honest go there in the hope to get justice, or avoid injustice.

We have now, I think, some sixty thousand of these champions, who make it the business of their lives to equip themselves for these conflicts, and sell their services for a price.

Is there any one of these men, who studies justice as a science, and regards that alone in all his professional exertions? If there are any such, why do we so seldom, or never, hear of them? Why have they not told us, hundreds of years ago, what are men’s natural rights of person and property? And why have they not [109] told us how false, absurd, and tyrannical are all these lawmaking governments? Why have they not told us what impostors and tyrants all these so-called lawmakers, judges, etc., etc., are? Why are so many of them so ambitious to become lawmakers and judges themselves?

Is it too much to hope for mankind, that they may sometime have courts of justice, instead of such courts of injustice as these?

If we ever should have courts of justice, it is easy to see what will become of statute books, supreme courts, trial by battle, and all the other machinery of fraud and tyranny, by which the world is now ruled.

If the people of this country knew what crimes are constantly committed by these courts of injustice, they would squelch them, without mercy, as unceremoniously as they would squelch so many gangs of bandits or pirates. In fact, bandits and pirates are highly respectable and honorable villains, compared with the judges of these courts of injustice. Bandits and pirates do not—like these judges—attempt to cheat us out of our common sense, in order to cheat us out of our property, liberty, or life. They do not profess to be anything but such villains as they really are. They do not claim to have received any “Divine” authority for robbing, enslaving, or murdering us at their pleasure. They do not claim immunity for their crimes, upon the ground that they are duly authorized agents of any such invisible, intangible, irresponsible, unimaginable thing as “society,” or “the State.” They do not insult us by telling us that they are only exercising that authority to rob, enslave, and murder us, which we ourselves have delegated to them. They do not claim that they are robbing, enslaving, and murdering us, solely to secure our happiness and prosperity, and not from any selfish motives of their own. They do not claim a wisdom so superior to that of the producers of wealth, as to know, better than they, how their wealth should be disposed of. They do not tell us that we are the freest and happiest people on earth, inasmuch as each of our male adults is allowed one voice in ten millions in the choice of the men, who are to rob, enslave, and murder us. They do not tell us that all liberty and order would be destroyed, that society itself would go to pieces, and man go back to barbarism, if it were not for the care, and supervision, and protection, they lavish upon us. They do not tell us of the almshouses, hospitals, schools, churches, etc., which, out of the purest charity and benevolence, they maintain for our benefit, out of the money they take from us. They do not carry their heads high, above all other men, and demand our reverence and admiration, as statesmen, patriots, and benefactors. They do not claim that we have voluntarily “come into their society,” and “surrendered” to them all our natural rights of person and property; nor all our “original and natural right” of defending our own rights, and redressing our own wrongs. They do not tell us that they have established infallible supreme courts, to whom they refer all questions as to the legality of their acts, and that they do nothing that is not sanctioned by these courts. They do not attempt [110] to deceive us, or mislead us, or reconcile us to their doings, by any such pretences, impostures, or insults as these. There is not a single John Marshall among them. On the contrary, they acknowledge themselves robbers, murderers, and villains, pure and simple. When they have once taken our money, they have the decency to get out of our sight as soon as possible; they do not persist in following us, and robbing us, again and again, so long as we produce anything that they can take from us. In short, they acknowledge themselves hostes humani generis: enemies of the human race. They acknowledge it to be our unquestioned right and duty to kill them, if we can; that they expect nothing else, than that we will kill them, if we can; and that we are only fools and cowards, if we do not kill them, by any and every means in our power. They neither ask, nor expect, any mercy, if they should ever fall into the hands of honest men.

For all these reasons, they are not only modest and sensible, but really frank, honest, and honorable villains, contrasted with these courts of injustice, and the lawmakers by whom these courts are established.

Such, Mr. Cleveland, is the real character of the government, of which you are the nominal head. Such are, and have been, its lawmakers. Such are, and have been, its judges. Such have been its executives. Such is its present executive. Have you anything to say for any of them?

Yours frankly,

LYSANDER SPOONER.

Boston,

May 15, 1886

.

The End.

Endnotes

*

Under a somewhat different title, to wit, “A Letter to Grover Cleveland, on his False, Absurd, Self-contradictory, and Ridiculous Inaugural Address,” this letter was first published, in instalments, in “Liberty” (a paper published in Boston); the instalments commencing June 20, 1885, and continuing to May 22, 1886: notice being given, in each paper, of the reservation of copyright.

*

The irresponsibility of the senators and representatives is guaranteed to them in this wise:

For any speech or debate [or vote] in either house, they [the senators and representatives] shall not be questioned [held to any legal responsibility] in any other place.—Constitution, Art. 1, Sec. 6.

The judicial and executive officers are all equally guaranteed against all responsibility to the people. They are made responsible only to the senators and representatives, whose laws they are to administer and execute. So long as they sanction and execute all these laws, to the satisfaction of the lawmakers, they are safe against all responsibility. In no case can the people, whose rights they are continually denying and trampling upon, hold them to any accountability whatever.

Thus it will be seen that all departments of the government, legislative, judicial, and executive, are placed entirely beyond any responsibility to the people, whose agents they profess to be, and whose rights they assume to dispose of at pleasure.

Was a more absolute, irresponsible government than that ever invented?

*

In the Senate they stood thirty to thirty-six, in the house ninety to one hundred and forty-seven, in the two branches united one hundred and twenty to one hundred and eighty-three, relatively to the non-slaveholding members.

From the foundation of the government—without a single interval, I think—the lawmakers from the slaveholding States had been, relatively, as strong, or stronger, than in 1860.

*

It may have very weighty moral obligation; but it can have no legal obligation.

*

The above extracts are from a pamphlet published by me in 1864, entitled “Considerations for Bankers,” etc., pp. 55, 56, 57.

*

For the amendments recommended by the Virginia convention, see “Elliot’s Debates,” Vol. 3, pp. 657 to 663. For the debates upon these amendments, see pages 444 to 452, and 460 to 462, and 466 to 471, and 579 to 652.

T.27 Vices are Not Crimes: A Vindication of Moral Liberty (1875).↩

Title

[27.] Vices are Not Crimes: A Vindication of Moral Liberty in Dio Lewis, Prohibition a Failure, Or, The True Solution of the Temperance Question (Boston: J.R. Osgood and Company, 1875), pp. 107-46.

- also online Shorter Works, vol. 2: </titles/2292#lf1531-02_head_038>

Text

VICES ARE NOT CRIMES. A VINDICATION OF MORAL LIBERTY.

I.

VICES are those acts by which a man harms himself or his property.

Crimes are those acts by which one man harms the person or property of another.

Vices are simply the errors which a man makes in his search after his own happiness. Unlike crimes, they imply no malice toward others, and no interference with their persons or property.

In vices, the very essence of crime—that is, the design to injure the person or property of another—is wanting.

It is a maxim of the law that there can be no crime without a criminal intent; that is, without the intent to invade the person or property of another. But no one ever practises a vice with any such criminal intent. He practises his vice for his own happiness solely, and not from any malice toward others.

Unless this clear distinction between vices and crimes be made and recognized by the laws, there can be on earth no such thing as individual right, liberty, or property; no such things as the right of one man to the control of his own person and property, and the corresponding and co-equal rights of another man to the control of his own person and property.

[2]

For a government to declare a vice to be a crime, and to punish it as such, is an attempt to falsify the very nature of things. It is as absurd as it would be to declare truth to be falsehood, or falsehood truth.

II.

EVERY voluntary act of a man’s life is either virtuous or vicious. That is to say, it is either in accordance, or in conflict, with those natural laws of matter and mind, on which his physical, mental, and emotional health and well-being depend. In other words, every act of his life tends, on the whole, either to his happiness, or to his unhappiness. No single act in his whole existence is indifferent.

Furthermore, each human being differs in his physical, mental, and emotional constitution, and also in the circumstances by which he is surrounded, from every other human being. Many acts, therefore, that are virtuous, and tend to happiness, in the case of one person, are vicious, and tend to unhappiness, in the case of another person.

Many acts, also, that are virtuous, and tend to happiness, in the case of one man, at one time, and under one set of circumstances, are vicious, and tend to unhappiness, in the case of the same man, at another time, and under other circumstances.

III.

TO know what actions are virtuous, and what vicious,—in other words, to know what actions tend, on the whole, to happiness, and what to unhappiness,—in the [3] case of each and every man, in each and all the conditions in which they may severally be placed, is the profoundest and most complex study to which the greatest human mind ever has been, or ever can be, directed. It is, nevertheless, the constant study to which each and every man—the humblest in intellect as well as the greatest—is necessarily driven by the desires and necessities of his own existence. It is also the study in which each and every person, from his cradle to his grave, must necessarily form his own conclusions; because no one else knows or feels, or can know or feel, as he knows and feels, the desires and necessities, the hopes, and fears, and impulses of his own nature, or the pressure of his own circumstances.

IV.

IT is not often possible to say of those acts that are called vices, that they really are vices, except in degree. That is, it is difficult to say of any actions, or courses of action, that are called vices, that they really would have been vices, if they had stopped short of a certain point. The question of virtue or vice, therefore, in all such cases, is a question of quantity and degree, and not of the intrinsic character of any single act, by itself. This fact adds to the difficulty, not to say the impossibility, of any one’s—except each individual for himself—drawing any accurate line, or anything like any accurate line, between virtue and vice; that is, of telling where virtue ends, and vice begins. And this is another reason why this whole question of virtue and vice should be left for each person to settle for himself.

[4]

V.

VICES are usually pleasurable, at least for the time being, and often do not disclose themselves as vices, by their effects, until after they have been practised for many years; perhaps for a lifetime. To many, perhaps most, of those who practise them, they do not disclose themselves as vices at all during life. Virtues, on the other hand, often appear so harsh and rugged, they require the sacrifice of so much present happiness, at least, and the results, which alone prove them to be virtues, are often so distant and obscure, in fact, so absolutely invisible to the minds of many, especially of the young, that, from the very nature of things, there can be no universal, or even general, knowledge that they are virtues. In truth, the studies of profound philosophers have been expended—if not wholly in vain, certainly with very small results—in efforts to draw the lines between the virtues and the vices.

If, then, it be so difficult, so nearly impossible, in most cases, to determine what is, and what is not, vice; and especially if it be so difficult, in nearly all cases, to determine where virtue ends, and vice begins; and if these questions, which no one can really and truly determine for anybody but himself, are not to be left free and open for experiment by all, each person is deprived of the highest of all his rights as a human being, to wit: his right to inquire, investigate, reason, try experiments, judge, and ascertain for himself, what is, to him, virtue, and what is, to him, vice; in other words. what, on the whole, conduces to his happiness, and what, on the whole, tends to his unhappiness. If this great right is not to be left free and open to all, then each man’s whole right, as [5] a reasoning human being, to “liberty and the pursuit of happiness,” is denied him.

VI.

WE all come into the world in ignorance of ourselves, and of everything around us. By a fundamental law of our natures we are all constantly impelled by the desire of happiness, and the fear of pain. But we have everything to learn, as to what will give us happiness, and save us from pain. No two of us are wholly alike, either physically, mentally, or emotionally; or, consequently, in our physical, mental, or emotional requirements for the acquisition of happiness, and the avoidance of unhappiness. No one of us, therefore, can learn this indispensable lesson of happiness and unhappiness, of virtue and vice, for another. Each must learn it for himself. To learn it, he must be at liberty to try all experiments that commend themselves to his judgment. Some of his experiments succeed, and, because they succeed, are called virtues; others fail, and, because they fail, are called vices. He gathers wisdom from his failures, as well as from his successes; from his so-called vices, as from his so-called virtues. He gathers wisdom as much from his failures as from his successes; from his so-called vices, as from his so-called virtues. Both are necessary to his acquisition of that knowledge—of his own nature, and of the world around him, and of their adaptations or non-adaptations to each other—which shall show him how happiness is acquired, and pain avoided. And, unless he can be permitted to try these experiments to his own satisfaction, he is restrained from the acquisition of knowledge, and, consequently, from pursuing the great purpose and duty of his life.

[6]

VII.

A MAN is under no obligation to take anybody’s word, or yield to anybody’s authority, on a matter so vital to himself, and in regard to which no one else has, or can have, any such interest as he. He cannot, if he would, safely rely upon the opinions of other men, because he finds that the opinions of other men do not agree. Certain actions, or courses of action, have been practised by many millions of men, through successive generations, and have been held by them to be, on the whole, conducive to happiness, and therefore virtuous. Other men, in other ages or countries, or under other conditions, have held, as the result of their experience and observation, that these actions tended, on the whole, to unhappiness, and were therefore vicious. The question of virtue or vice, as already remarked in a previous section, has also been, in most minds, a question of degree; that is, of the extent to which certain actions should be carried; and not of the intrinsic character of any single act, by itself. The questions of virtue and vice have therefore been as various, and, in fact, as infinite, as the varieties of mind, body, and condition of the different individuals inhabiting the globe. And the experience of ages has left an infinite number of these questions unsettled. In fact, it can scarcely be said to have settled any of them.

VIII.

IN the midst of this endless variety of opinion, what man, or what body of men, has the right to say, in regard to any particular action, or course of action, “We [7] have tried this experiment, and determined every question involved in it? We have determined it, not only for ourselves, but for all others? And, as to all those who are weaker than we, we will coerce them to act in obedience to our conclusion? We will suffer no further experiment or inquiry by any one, and, consequently, no further acquisition of knowledge by anybody?”

Who are the men who have the right to say this? Certainly there are none such. The men who really do say it, are either shameless impostors and tyrants, who would stop the progress of knowledge, and usurp absolute control over the minds and bodies of their fellow-men; and are therefore to be resisted instantly, and to the last extent; or they are themselves too ignorant of their own weaknesses, and of their true relations to other men, to be entitled to any other consideration than sheer pity or contempt.

We know, however, that there are such men as these in the world. Some of them attempt to exercise their power only within a small sphere, to wit, upon their children, their neighbors, their townsmen, and their countrymen. Others attempt to exercise it on a larger scale. For example, an old man at Rome, aided by a few subordinates, attempts to decide all questions of virtue and vice; that is, of truth or falsehood, especially in matters of religion. He claims to know and teach what religious ideas and practices are conducive, or fatal, to a man’s happiness, not only in this world, but in that which is to come. He claims to be miraculously inspired for the performance of this work; thus virtually acknowledging, like a sensible man, that nothing short of miraculous inspiration would qualify him for it. This miraculous inspiration, however, has been ineffectual to enable him to settle more than a very few questions. The most important of these are, first, that the highest religious virtue [8] to which common mortals can attain, is an implicit belief in his (the pope’s) infallibility! and, secondly, that the blackest vices of which they can be guilty are to believe and declare that he is only a man like the rest of them!

It required some fifteen or eighteen hundred years to enable him to reach definite conclusions on these two vital points. Yet it would seem that the first of these must necessarily be preliminary to his settlement of any other questions; because, until his own infallibility is determined, he can authoritatively decide nothing else. He has, however, heretofore attempted or pretended to settle a few others. And he may, perhaps, attempt or pretend to settle a few more in the future, if he shall continue to find anybody to listen to him. But his success, thus far, certainly does not encourage the belief that he will be able to settle all questions of virtue and vice, even in his peculiar department of religion, in time to meet the necessities of mankind. He, or his successors, will undoubtedly be compelled, at no distant day, to acknowledge that he has undertaken a task to which all his miraculous inspiration was inadequate; and that, of necessity, each human being must be left to settle all questions of this kind for himself. And it is not unreasonable to expect that all other popes, in other and lesser spheres, will some time have cause to come to the same conclusion. No one, certainly, not claiming supernatural inspiration, should undertake a task to which obviously nothing less than such inspiration is adequate. And, clearly, no one should surrender his own judgment to the teachings of others, unless he be first convinced that these others have something more than ordinary human knowledge on this subject.

If those persons, who fancy themselves gifted with both the power and the right to define and punish other men’s vices, would but turn their thoughts inwardly, they would [9] probably find that they have a great work to do at home; and that, when that shall have been completed, they will be little disposed to do more towards correcting the vices of others, than simply to give to others the results of their experience and observation. In this sphere their labors may possibly be useful; but, in the sphere of infallibility and coercion, they will probably, for well-known reasons, meet with even less success in the future than such men have met with in the past.

IX.

IT is now obvious, from the reasons already given, that government would be utterly impracticable, if it were to take cognizance of vices, and punish them as crimes. Every human being has his or her vices. Nearly all men have a great many. And they are of all kinds; physiological, mental, emotional; religious, social, commercial, industrial, economical, &c., &c. If government is to take cognizance of any of these vices, and punish them as crimes, then, to be consistent, it must take cognizance of all, and punish all impartially. The consequence would be, that everybody would be in prison for his or her vices. There would be no one left outside to lock the doors upon those within. In fact, courts enough could not be found to try the offenders, nor prisons enough built to hold them. All human industry in the acquisition of knowledge, and even in acquiring the means of subsistence, would be arrested; for we should all be under constant trial or imprisonment for our vices. But even if it were possible to imprison all the vicious, our knowledge of human nature tells us that, as a general rule, they would be far more vicious in prison than they ever have been out of it.

[10]

X.

A GOVERNMENT that shall punish all vices impartially is so obviously an impossibility, that nobody was ever found, or ever will be found, foolish enough to propose it. The most that any one proposes is, that government shall punish some one, or at most a few, of what he esteems the grossest of them. But this discrimination is an utterly absurd, illogical, and tyrannical one. What right has any body of men to say, “The vices of other men we will punish; but our own vices nobody shall punish? We will restrain other men from seeking their own happiness, according to their own notions of it; but nobody shall restrain us from seeking our own happiness, according to our own notions of it? We will restrain other men from acquiring any experimental knowledge of what is conducive or necessary to their own happiness; but nobody shall restrain us from acquiring an experimental knowledge of what is conducive or necessary to our own happiness?”

Nobody but knaves or blockheads ever thinks of making such absurd assumptions as these. And yet, evidently, it is only upon such assumptions that anybody can claim the right to punish the vices of others, and at the same time claim exemption from punishment for his own.

XI.

SUCH a thing as a government, formed by voluntary association, would never have been thought of, if the object proposed had been the punishment of all vices, impartially; because nobody wants such an institution, [11] or would voluntarily submit to it. But a government, formed by voluntary association, for the punishment of all crimes, is a reasonable matter; because everybody wants protection for himself against all crimes by others, and also acknowledges the justice of his own punishment, if he commits a crime.

XII.

IT is a natural impossibility that a government should have a right to punish men for their vices; because it is impossible that a government should have any rights, except such as the individuals composing it had previously had, as individuals. They could not delegate to a government any rights which they did not themselves possess. They could not contribute to the government any rights, except such as they themselves possessed as individuals. Now, nobody but a fool or an impostor pretends that he, as an individual, has a right to punish other men for their vices. But anybody and everybody have a natural right, as individuals, to punish other men for their crimes; for everybody has a natural right, not only to defend his own person and property against aggressors, but also to go to the assistance and defence of everybody else, whose person or property is invaded. The natural right of each individual to defend his own person and property against an aggressor, and to go to the assistance and defence of every one else whose person or property is invaded, is a right without which men could not exist on the earth. And government has no rightful existence, except in so far as it embodies, and is limited by, this natural right of individuals. But the idea that each man has a natural right to sit in judgment on all his neighbor’s actions, and [12] decide what are virtues, and what are vices,—that is, what contribute to that neighbor’s happiness, and what do not,—and to punish him for all that do not contribute to it, is what no one ever had the impudence or folly to assert. It is only those who claim that government has some rightful power, which no individual or individuals ever did, or ever could, delegate to it, that claim that government has any rightful power to punish vices.

It will do for a pope or a king—who claims to have received direct authority from Heaven, to rule over his fellow-men—to claim the right, as the vicegerent of God, to punish men for their vices; but it is a sheer and utter absurdity for any government, claiming to derive its power wholly from the grant of the governed, to claim any such power; because everybody knows that the governed never would grant it. For them to grant it would be an absurdity, because it would be granting away their own right to seek their own happiness; since to grant away their right to judge of what will be for their happiness, is to grant away all their right to pursue their own happiness.

XIII.

WE can now see how simple, easy, and reasonable a matter is a government for the punishment of crimes, as compared with one for the punishment of vices. Crimes are few, and easily distinguished from all other acts; and mankind are generally agreed as to what acts are crimes. Whereas vices are innumerable; and no two persons are agreed, except in comparatively few cases, as to what are vices. Furthermore, everybody wishes to be protected, in his person and property, against the aggressions of other men. But nobody wishes [13] to be protected, either in his person or property, against himself; because it is contrary to the fundamental laws of human nature itself, that any one should wish to harm himself. He only wishes to promote his own happiness, and to be his own judge as to what will promote, and does promote, his own happiness. This is what every one wants, and has a right to, as a human being. And though we all make many mistakes, and necessarily must make them, from the imperfection of our knowledge, yet these mistakes are no argument against the right; because they all tend to give us the very knowledge we need, and are in pursuit of, and can get in no other way.

The object aimed at in the punishment of crimes, therefore, is not only wholly different from, but it is directly opposed to, that aimed at in the punishment of vices.

The object aimed at in the punishment of crimes is to secure, to each and every man alike, the fullest liberty he possibly can have—consistently with the equal rights of others—to pursue his own happiness, under the guidance of his own judgment, and by the use of his own property. On the other hand, the object aimed at in the punishment of vices, is to deprive every man of his natural right and liberty to pursue his own happiness, under the guidance of his own judgment, and by the use of his own property.

These two objects, then, are directly opposed to each other. They are as directly opposed to each other as are light and darkness, or as truth and falsehood, or as liberty and slavery. They are utterly incompatible with each other; and to suppose the two to be embraced in one and the same government, is an absurdity, an impossibility. It is to suppose the objects of a government to be to commit crimes, and to prevent crimes; to destroy individual liberty, and to secure individual liberty.

[14]

XIV.

FINALLY, on this point of individual liberty: Every man must necessarily judge and determine for himself as to what is conducive and necessary to, and what is destructive of, his own well-being; because, if he omits to perform this task for himself, nobody else can perform it for him. And nobody else will even attempt to perform it for him, except in very few cases. Popes, and priests, and kings will assume to perform it for him, in certain cases, if permitted to do so. But they will, in general, perform it only in so far as they can minister to their own vices and crimes, by doing it. They will, in general, perform it only in so far as they can make him their fool and their slave. Parents, with better motives, no doubt, than the others, too often attempt the same work. But in so far as they practise coercion, or restrain a child from anything not really and seriously dangerous to himself, they do him a harm, rather than a good. It is a law of Nature that to get knowledge, and to incorporate that knowledge into his own being, each individual must get it for himself. Nobody, not even his parents, can tell him the nature of fire, so that he will really know it. He must himself experiment with it, and be burnt by it, before he can know it.

Nature knows, a thousand times better than any parent, what she designs each individual for, what knowledge he requires, and how he must get it. She knows that her own processes for communicating that knowledge are not only the best, but the only ones that can be effectual.

The attempts of parents to make their children virtuous are generally little else than attempts to keep them [15] in ignorance of vice. They are little else than attempts to teach their children to know and prefer truth, by keeping them in ignorance of falsehood. They are little else than attempts to make them seek and appreciate health, by keeping them in ignorance of disease, and of everything that will cause disease. They are little else than attempts to make their children love the light, by keeping them in ignorance of darkness. In short, they are little else than attempts to make their children happy, by keeping them in ignorance of everything that causes them unhappiness.

In so far as parents can really aid their children in the latter’s search after happiness, by simply giving them the results of their (the parents’) own reason and experience, it is all very well, and is a natural and appropriate duty. But to practise coercion in matters of which the children are reasonably competent to judge for themselves, is only an attempt to keep them in ignorance. And this is as much a tyranny, and as much a violation of the children’s right to acquire knowledge for themselves, and such knowledge as they desire, as is the same coercion when practised upon older persons. Such coercion, practised upon children, is a denial of their right to develop the faculties that Nature has given them, and to be what Nature designs them to be. It is a denial of their right to themselves, and to the use of their own powers. It is a denial of their right to acquire the most valuable of all knowledge, to wit, the knowledge that Nature, the great teacher, stands ready to impart to them.

The results of such coercion are not to make the children wise or virtuous, but to make them ignorant, and consequently weak and vicious; and to perpetuate through them, from age to age, the ignorance, the superstitions, the vices, and the crimes of the parents. This is proved by every page of the world’s history.

[16]

Those who hold opinions opposite to these, are those whose false and vicious theologies, or whose own vicious general ideas, have taught them that the human race are naturally given to evil, rather than good; to the false, rather than the true; that mankind do not naturally turn their eyes to the light; that they love darkness, rather than light; and that they find their happiness only in those things that tend to their misery.

XV.

BUT these men, who claim that government shall use its power to prevent vice, will say, or are in the habit of saying, “We acknowledge the right of an individual to seek his own happiness in his own way, and consequently to be as vicious as he pleases; we only claim that government shall prohibit the sale to him of those articles by which he ministers to his vice.”

The answer to this is, that the simple sale of any article whatever—independently of the use that is to be made of the article—is legally a perfectly innocent act. The quality of the act of sale depends wholly upon the quality of the use for which the thing is sold. If the use of anything is virtuous and lawful, then the sale of it, for that use, is virtuous and lawful. If the use is vicious, then the sale of it, for that use, is vicious. If the use is criminal, then the sale of it, for that use, is criminal. The seller is, at most, only an accomplice in the use that is to be made of the article sold, whether the use be virtuous, vicious, or criminal. Where the use is criminal, the seller is an accomplice in the crime, and punishable as such. But where the use is only vicious, the seller is only an accomplice in the vice, and is not punishable.

[17]

XVI.

BUT it will be asked, “Is there no right, on the part of government, to arrest the progress of those who are bent on self-destruction?”

The answer is, that government has no rights whatever in the matter, so long as these so-called vicious persons remain sane, compos mentis, capable of exercising reasonable discretion and self-control; because, so long as they do remain sane, they must be allowed to judge and decide for themselves whether their so-called vices really are vices; whether they really are leading them to destruction; and whether, on the whole, they will go there or not. When they shall become insane, non compos mentis, incapable of reasonable discretion or self-control, their friends or neighbors, or the government, must take care of them, and protect them from harm, and against all persons who would do them harm, in the same way as if their insanity had come upon them from any other cause than their supposed vices.

But because a man is supposed, by his neighbors, to be on the way to self-destruction, from his vices, it does not, therefore, follow that he is insane, non compos mentis, incapable of reasonable discretion and self-control, within the legal meaning of those terms. Men and women may be addicted to very gross vices, and to a great many of them,—such as gluttony, drunkenness, prostitution, gambling, prize-fighting, tobacco-chewing, smoking, and snuffing, opium-eating, corset-wearing, idleness, waste of property, avarice, hypocrisy, &c., &c.,—and still be sane, compos mentis, capable of reasonable discretion and self-control, within the meaning of the law. And so long as they are sane, they must be permitted to control [18] themselves and their property, and to be their own judges as to where their vices will finally lead them. It may be hoped by the lookers-on, in each individual case, that the vicious person will see the end to which he is tending, and be induced to turn back. But, if he chooses to go on to what other men call destruction, he must be permitted to do so. And all that can be said of him, so far as this life is concerned, is, that he made a great mistake in his search after happiness, and that others will do well to take warning by his fate. As to what may be his condition in another life, that is a theological question with which the law, in this world, has no more to do than it has with any other theological question, touching men’s condition in a future life.

If it be asked how the question of a vicious man’s sanity or insanity is to be determined? the answer is, that it is to be determined by the same kinds of evidence as is the sanity or insanity of those who are called virtuous; and not otherwise. That is, by the same kinds of evidence by which the legal tribunals determine whether a man should be sent to an asylum for lunatics, or whether he is competent to make a will, or otherwise dispose of his property. Any doubt must weigh in favor of his sanity, as in all other cases, and not of his insanity.

If a person really does become insane, non compos mentis, incapable of reasonable discretion or self-control, it is then a crime, on the part of other men, to give to him or sell to him, the means of self-injury.* And such a crime is to be punished like any other crime.

There are no crimes more easily punished, no cases in which juries would be more ready to convict, than those [19] where a sane person should sell or give to an insane one any article with which the latter was likely to injure himself.

XVII.

BUT it will be said that some men are made, by their vices, dangerous to other persons; that a drunkard, for example, is sometimes quarrelsome and dangerous toward his family or others. And it will be asked, “Has the law nothing to do in such a case?”

The answer is, that if, either from drunkenness or any other cause, a man be really dangerous, either to his family or to other persons, not only himself may be rightfully restrained, so far as the safety of other persons requires, but all other persons—who know or have reasonable grounds to believe him dangerous—may also be restrained from selling or giving to him anything that they have reason to suppose will make him dangerous.

But because one man becomes quarrelsome and dangerous after drinking spirituous liquors, and because it is a crime to give or sell liquor to such a man, it does not follow at all that it is a crime to sell liquors to the hundreds and thousands of other persons, who are not made quarrelsome or dangerous by drinking them. Before a man can be convicted of crime in selling liquor to a dangerous man, it must be shown that the particular man, to whom the liquor was sold, was dangerous; and also that the seller knew, or had reasonable grounds to suppose, that the man would be made dangerous by drinking it.

The presumption of law is, in all cases, that the sale is innocent; and the burden of proving it criminal, in any particular case, rests upon the government. And that particular case must be proved criminal, independently of all others.

[20]

Subject to these principles, there is no difficulty in convicting and punishing men for the sale or gift of any article to a man, who is made dangerous to others by the use of it.

XVIII.

BUT it is often said that some vices are nuisances (public or private), and that nuisances can be abated and punished.

It is true that anything that is really and legally a nuisance (either public or private) can be abated and punished. But it is not true that the mere private vices of one man are, in any legal sense, nuisances to another man, or to the public.

No act of one person can be a nuisance to another, unless it in some way obstructs or interferes with that other’s safe and quiet use or enjoyment of what is rightfully his own.

Whatever obstructs a public highway, is a nuisance, and may be abated and punished. But a hotel where liquors are sold, a liquor store, or even a grog-shop, so called, no more obstructs a public highway, than does a dry goods store, a jewelry store, or a butcher’s shop.

Whatever poisons the air, or makes it either offensive or unhealthful, is a nuisance. But neither a hotel, nor a liquor store, nor a grog-shop poisons the air, or makes it offensive or unhealthful to outside persons.

Whatever obstructs the light, to which a man is legally entitled, is a nuisance. But neither a hotel, nor a liquor store, nor a grog-shop, obstructs anybody’s light, except in cases where a church, a school-house, or a dwelling-house would have equally obstructed it. On this ground, therefore, the former are no more, and no less, nuisances than the latter would be.

[21]

Some persons are in the habit of saying that a liquor-shop is dangerous, in the same way that gunpowder is dangerous. But there is no analogy between the two cases. Gunpowder is liable to be exploded by accident, and especially by such fires as often occur in cities. For these reasons it is dangerous to persons and property in its immediate vicinity. But liquors are not liable to be thus exploded, and therefore are not dangerous nuisances, in any such sense as is gunpowder in cities.

But it is said, again, that drinking-places are frequently filled with noisy and boisterous men, who disturb the quiet of the neighborhood, and the sleep and rest of the neighbors.

This may be true occasionally, though not very frequently. But whenever, in any case, it is true, the nuisance may be abated by the punishment of the proprietor and his customers, and if need be, by shutting up the place. But an assembly of noisy drinkers is no more a nuisance than is any other noisy assembly. A jolly or hilarious drinker disturbs the quiet of a neighborhood no more, and no less, than does a shouting religious fanatic. An assembly of noisy drinkers is no more, and no less, a nuisance than is an assembly of shouting religious fanatics. Both of them are nuisances when they disturb the rest and sleep, or quiet, of neighbors. Even a dog that is given to barking, to the disturbance of the sleep or quiet of the neighborhood, is a nuisance.

XIX.

BUT it is said, that for one person to entice another into a vice, is a crime.

This is preposterous. If any particular act is simply a vice, then a man who entices another to commit it, is [22] simply an accomplice in the vice. He evidently commits no crime, because the accomplice can certainly commit no greater offence than the principal.

Every person who is sane, compos mentis, possessed of reasonable discretion and self-control, is presumed to be mentally competent to judge for himself of all the arguments, pro and con, that may be addressed to him, to persuade him to do any particular act; provided no fraud is employed to deceive him. And if he is persuaded or induced to do the act, his act is then his own; and even though the act prove to be harmful to himself, he cannot complain that the persuasion or arguments, to which he yielded his assent, were crimes against himself.

When fraud is practised, the case is, of course, different. If, for example, I offer a man poison, assuring him that it is a safe and wholesome drink, and he, on the faith of my assertion, swallows it, my act is a crime.

Volenti non fit injuria, is a maxim of the law. To the willing no injury is done. That is, no legal wrong. And every person who is sane, compos mentis, capable of exercising reasonable discretion in judging of the truth or falsehood of the representations or persuasions to which he yields his assent, is “willing,” in the view of the law; and takes upon himself the entire responsibility for his acts, when no intentional fraud has been practised upon him.

This principle, that to the willing no injury is done, has no limit, except in the case of frauds, or of persons not possessed of reasonable discretion for judging in the particular case. If a person possessed of reasonable discretion, and not deceived by fraud, consents to practise the grossest vice, and thereby brings upon himself the greatest moral, physical, or pecuniary sufferings or losses, he cannot allege that he has been legally wronged. To illustrate this principle, take the case of rape. To have [23] carnal knowledge of a woman, against her will, is the highest crime, next to murder, that can be committed against her. But to have carnal knowledge of her, with her consent, is no crime; but at most, a vice. And it is usually holden that a female child, of no more than ten years of age, has such reasonable discretion, that her consent, even though procured by rewards, or promises of reward, is sufficient to convert the act, which would otherwise be a high crime, into a simple act of vice.*

We see the same principle in the case of prize-fighters. If I but lay one of my fingers upon another man’s person, against his will, no matter how lightly, and no matter how little practical injury is done, the act is a crime. But if two men agree to go out and pound each other’s faces to a jelly, it is no crime, but only a vice.

Even duels have not generally been considered crimes, because each man’s life is his own, and the parties agree that each may take the other’s life, if he can, by the use of such weapons as are agreed upon, and in conformity with certain rules that are also mutually assented to.

And this is a correct view of the matter, unless it can be said (as it probably cannot), that “anger is a madness” that so far deprives men of their reason as to make them incapable of reasonable discretion.

Gambling is another illustration of the principle that to the willing no injury is done. If I take but a single cent of a man’s property, without his consent, the act is a crime. But if two men, who are compos mentis, possessed [24] of reasonable discretion to judge of the nature and probable results of their act, sit down together, and each voluntarily stakes his money against the money of another, on the turn of a die, and one of them loses his whole estate (however large that may be), it is no crime, but only a vice.

It is not a crime, even, to assist a person to commit suicide, if he be in possession of his reason.

It is a somewhat common idea that suicide is, of itself, conclusive evidence of insanity. But, although it may ordinarily be very strong evidence of insanity, it is by no means conclusive in all cases. Many persons, in undoubted possession of their reason, have committed suicide, to escape the shame of a public exposure for their crimes, or to avoid some other great calamity. Suicide, in these cases, may not have been the highest wisdom, but it certainly was not proof of any lack of reasonable discretion.* And being within the limits of reasonable discretion, it was no crime for other persons to aid it, either by furnishing the instrument or otherwise. And if, in such cases, it be no crime to aid a suicide, how absurd to say that it is a crime to aid him in some act that is really pleasurable, and which a large portion of mankind have believed to be useful?

[25]

XX.

BUT some persons are in the habit of saying that the use of spirituous liquors is the great source of crime; that “it fills our prisons with criminals;” and that this is reason enough for prohibiting the sale of them.

Those who say this, if they talk seriously, talk blindly and foolishly. They evidently mean to be understood as saying that a very large percentage of all the crimes that are committed among men, are committed by persons whose criminal passions are excited, at the time, by the use of liquors, and in consequence of the use of liquors.

This idea is utterly preposterous.

In the first place, the great crimes committed in the world are mostly prompted by avarice and ambition.

The greatest of all crimes are the wars that are carried on by governments, to plunder, enslave, and destroy mankind.

The next greatest crimes committed in the world are equally prompted by avarice and ambition; and are committed, not on sudden passion, but by men of calculation, who keep their heads cool and clear, and who have no thought whatever of going to prison for them. They are committed, not so much by men who violate the laws, as by men who, either by themselves or by their instruments, make the laws; by men who have combined to usurp arbitrary power, and to maintain it by force and fraud, and whose purpose in usurping and maintaining it is, by unjust and unequal legislation, to secure to themselves such advantages and monopolies as will enable them to control and extort the labor and properties of other men, and thus impoverish them, in order to minister to their own wealth and aggrandizement.* The robberies and [26] wrongs thus committed by these men, in conformity with the laws,—that is, their own laws,—are as mountains to molehills, compared with the crimes committed by all other criminals, in violation of the laws.

But, thirdly, there are vast numbers of frauds, of various kinds, committed in the transactions of trade, whose perpetrators, by their coolness and sagacity, evade the operation of the laws. And it is only their cool and clear heads that enable them to do it. Men under the excitement of intoxicating drinks are little disposed, and utterly unequal, to the successful practice of these frauds. They are the most incautious, the least successful, the least efficient, and the least to be feared, of all the criminals with whom the laws have to deal.

Fourthly. The professed burglars, robbers, thieves, forgers, counterfeiters, and swindlers, who prey upon society, are anything but reckless drinkers. Their business is of too dangerous a character to admit of such risks as they would thus incur.

Fifthly. The crimes that can be said to be committed under the influence of intoxicating drinks are mostly assaults and batteries, not very numerous, and generally not very aggravated. Some other small crimes, as petty thefts, or other small trespasses upon property, are sometimes [27] committed, under the influence of drink, by feebleminded persons, not generally addicted to crime. The persons who commit these two kinds of crime are but few. They cannot be said to “fill our prisons;” or, if they do, we are to be congratulated that we need so few prisons, and so small prisons, to hold them.

The State of Massachusetts, for example, has a million and a half of people. How many of these are now in prison for crimes—not for the vice of intoxication, but for crimes—committed against persons or property under the instigation of strong drink? I doubt if there be one in ten thousand, that is, one hundred and fifty in all; and the crimes for which these are in prison are mostly very small ones.

And I think it will be found that these few men are generally much more to be pitied than punished, for the reason that it was their poverty and misery, rather than any passion for liquor, or for crime, that led them to drink, and thus led them to commit their crimes under the influence of drink.

The sweeping charge that drink “fills our prisons with criminals” is made, I think, only by those men who know no better than to call a drunkard a criminal; and who have no better foundation for their charge than the shameful fact that we are such a brutal and senseless people, that we condemn and punish such weak and unfortunate persons as drunkards, as if they were criminals.

The legislators who authorize, and the judges who practise, such atrocities as these, are intrinsically criminals; unless their ignorance be such—as it probably is not—as to excuse them. And, if they were themselves to be punished as criminals, there would be more reason in our conduct.

A police judge in Boston once told me that he was in the habit of disposing of drunkards (by sending them to [28] prison for thirty days—I think that was the stereotyped sentence) at the rate of one in three minutes! and sometimes more rapidly even than that; thus condemning them as criminals, and sending them to prison, without mercy, and without inquiry into circumstances, for an infirmity that entitled them to compassion and protection, instead of punishment. The real criminals in these cases were not the men who went to prison, but the judge, and the men behind him, who sent them there.

I recommend to those persons, who are so distressed lest the prisons of Massachusetts be filled with criminals, that they employ some portion, at least, of their philanthropy in preventing our prisons being filled with persons who are not criminals. I do not remember to have heard that their sympathies have ever been very actively exercised in that direction. On the contrary, they seem to have such a passion for punishing criminals, that they care not to inquire particularly whether a candidate for punishment really be a criminal. Such a passion, let me assure them, is a much more dangerous one, and one entitled to far less charity, both morally and legally, than the passion for strong drink.

It seems to be much more consonant with the merciless character of these men to send an unfortunate man to prison for drunkenness, and thus crush, and degrade, and dishearten him, and ruin him for life, than it does for them to lift him out of the poverty and misery that caused him to become a drunkard.

It is only those persons who have either little capacity, or little disposition, to enlighten, encourage, or aid mankind, that are possessed of this violent passion for governing, commanding, and punishing them. If, instead of standing by, and giving their consent and sanction to all the laws by which the weak man is first plundered, oppressed, and disheartened, and then punished as a [29] criminal, they would turn their attention to the duty of defending his rights and improving his condition, and of thus strengthening him, and enabling him to stand on his own feet, and withstand the temptations that surround him, they would, I think, have little need to talk about laws and prisons for either rum-sellers or rum-drinkers, or even any other class of ordinary criminals. If, in short, these men, who are so anxious for the suppression of crime, would suspend, for a while, their calls upon the government for aid in suppressing the crimes of individuals, and would call upon the people for aid in suppressing the crimes of the government, they would show both their sincerity and good sense in a much stronger light than they do now. When the laws shall all be so just and equitable as to make it possible for all men and women to live honestly and virtuously, and to make themselves comfortable and happy, there will be much fewer occasions than now for charging them with living dishonestly and viciously.

XXI.

BUT it will be said, again, that the use of spirituous liquors tends to poverty, and thus to make men paupers, and burdensome to the tax-payers; and that this is a sufficient reason why the sale of them should be prohibited.

There are various answers to this argument.

1. One answer is, that if the fact that the use of liquors tends to poverty and pauperism, be a sufficient reason for prohibiting the sale of them, it is equally a sufficient reason for prohibiting the use of them; for it is the use, and not the sale, that tends to poverty. The seller is, at [30] most, merely an accomplice of the drinker. And it is a rule of law, as well as of reason, that if the principal in any act is not punishable, the accomplice cannot be.

2. A second answer to the argument is, that if government has the right, and is bound, to prohibit any one act—that is not criminal—merely because it is supposed to tend to poverty, then, by the same rule, it has the right, and is bound, to prohibit any and every other act—though not criminal—which, in the opinion of the government, tends to poverty. And, on this principle, the government would not only have the right, but would be bound, to look into every man’s private affairs, and every person’s personal expenditures, and determine as to which of them did, and which of them did not, tend to poverty; and to prohibit and punish all of the former class. A man would have no right to expend a cent of his own property, according to his own pleasure or judgment, unless the legislature should be of the opinion that such expenditure would not tend to poverty.

3. A third answer to the same argument is, that if a man does bring himself to poverty, and even to beggary,—either by his virtues or his vices,—the government is under no obligation whatever to take care of him, unless it pleases to do so. It may let him perish in the street, or depend upon private charity, if it so pleases. It can carry out its own free will and discretion in the matter; for it is above all legal responsibility in such a case. It is not, necessarily, any part of a government’s duty to provide for the poor. A government—that is, a legitimate government—is simply a voluntary association of individuals, who unite for such purposes, and only for such purposes, as suits them. If taking care of the poor—whether they be virtuous or vicious—be not one of those purposes, then the government, as a government, has no more right, and is no more bound, to take care of [31] them, than has or is a banking company, or a railroad company.

Whatever moral claims a poor man—whether he be virtuous or vicious—may have upon the charity of his fellow-men, he has no legal claims upon them. He must depend wholly upon their charity, if they so please. He cannot demand, as a legal right, that they either feed or clothe him. And he has no more legal or moral claims upon a government—which is but an association of individuals—than he has upon the same, or any other individuals, in their private capacity.

Inasmuch, then, as a poor man—whether virtuous or vicious—has no more or other claims, legal or moral, upon a government, for food or clothing, than he has upon private persons, a government has no more right than a private person to control or prohibit the expenditures or actions of an individual, on the ground that they tend to bring him to poverty.

Mr. A, as an individual, has clearly no right to prohibit any acts or expenditures of Mr. Z, through fear that such acts or expenditures may tend to bring him (Z) to poverty, and that he (Z) may, in consequence, at some future unknown time, come to him (A) in distress, and ask charity. And if A has no such right, as an individual, to prohibit any acts or expenditures on the part of Z, then government, which is a mere association of individuals, can have no such right.

Certainly no man, who is compos mentis, holds his right to the disposal and use of his own property, by any such worthless tenure as that which would authorize any or all of his neighbors,—whether calling themselves a government or not,—to interfere, and forbid him to make any expenditures, except such as they might think would not tend to poverty, and would not tend to ever bring him to them as a supplicant for their charity.

[32]

Whether a man, who is compos mentis, come to poverty, through his virtues or his vices, no man, nor body of men, can have any right to interfere with him, on the ground that their sympathy may some time be appealed to in his behalf; because, if it should be appealed to, they are at perfect liberty to act their own pleasure or discretion as to complying with his solicitations.

This right to refuse charity to the poor—whether the latter be virtuous or vicious—is one that governments always act upon. No government makes any more provision for the poor than it pleases. As a consequence, the poor are left, to a great extent, to depend upon private charity. In fact, they are often left to suffer sickness, and even death, because neither public nor private charity comes to their aid. How absurd, then, to say that government has a right to control a man’s use of his own property, through fear that he may sometime come to poverty, and ask charity.

4. Still a fourth answer to the argument is, that the great and only incentive which each individual man has to labor, and to create wealth, is that he may dispose of it according to his own pleasure or discretion, and for the promotion of his own happiness, and the happiness of those whom he loves.*

Although a man may often, from inexperience or want of judgment, expend some portion of the products of his labor injudiciously, and so as not to promote his highest welfare, yet he learns wisdom in this, as in all other matters, by experience; by his mistakes as well as by his successes. And this is the only way in which he can learn wisdom. When he becomes convinced that he has made one foolish expenditure, he learns thereby not to make [33] another like it. And he must be permitted to try his own experiments, and to try them to his own satisfaction, in this as in all other matters; for otherwise he has no motive to labor, or to create wealth at all.

Any man, who is a man, would rather be a savage, and be free, creating or procuring only such little wealth as he could control and consume from day to day, than to be a civilized man, knowing how to create and accumulate wealth indefinitely, and yet not permitted to use or dispose of it, except under the supervision, direction, and dictation of a set of meddlesome, superserviceable fools and tyrants, who, with no more knowledge than himself, and perhaps with not half so much, should assume to control him, on the ground that he had not the right, or the capacity, to determine for himself as to what he would do with the proceeds of his own labor.

5. A fifth answer to the argument is, that if it be the duty of government to watch over the expenditures of any one person,—who is compos mentis, and not criminal,—to see what ones tend to poverty, and what do not, and to prohibit and punish the former, then, by the same rule, it is bound to watch over the expenditures of all other persons, and prohibit and punish all that, in its judgment, tend to poverty.

If such a principle were carried out impartially, the result would be, that all mankind would be so occupied in watching each other’s expenditures, and in testifying against, trying, and punishing such as tended to poverty, that they would have no time left to create wealth at all. Everybody capable of productive labor would either be in prison, or be acting as judge, juror, witness, or jailer. It would be impossible to create courts enough to try, or to build prisons enough to hold, the offenders. All productive labor would cease; and the fools that were so intent on preventing poverty, would not only all come to [34] poverty, imprisonment, and starvation themselves, but would bring everybody else to poverty, imprisonment, and starvation.

6. If it be said that a man may, at least, be rightfully compelled to support his family, and, consequently, to abstain from all expenditures that, in the opinion of the government, tend to disable him to perform that duty, various answers might be given. But this one is sufficient, viz.: that no man, unless a fool or a slave, would acknowledge any family to be his, if that acknowledgment were to be made an excuse, by the government, for depriving him, either of his personal liberty, or the control of his property.

When a man is allowed his natural liberty, and the control of his property, his family is usually, almost universally, the great paramount object of his pride and affection; and he will, not only voluntarily, but as his highest pleasure, employ his best powers of mind and body, not merely to provide for them the ordinary necessaries and comforts of life, but to lavish upon them all the luxuries and elegancies that his labor can procure.

A man enters into no moral or legal obligation with his wife or chidren to do anything for them, except what he can do consistently with his own personal freedom, and his natural right to control his own property at his own discretion.

If a government can step in and say to a man,—who is compos mentis, and who is doing his duty to his family, as he sees his duty, and according to his best judgment, however imperfect that may be,—“We (the government) suspect that you are not employing your labor to the best advantage for your family; we suspect that your expenditures, and your disposal of your property, are not so judicious as they might be, for the interest of your family; and therefore we (the government) [35] will take you and your property under our special surveillance, and prescribe to you what you may, and may not do, with yourself and your property; and your family shall hereafter look to us (the government), and not to you, for support”—if a government can do this, all a man’s pride, ambition, and affection, relative to his family, would be crushed, so far as it would be possible for human tyranny to crush them; and he would either never have a family (whom he would publicly acknowledge to be his), or he would risk both his property and his life in overthrowing such an insulting, outrageous, and insufferable tyranny. And any woman who would wish her husband—he being compos mentis—to submit to such an unnatural insult and wrong, is utterly undeserving of his affection, or of anything but his disgust and contempt. And he would probably very soon cause her to understand that, if she chose to rely on the government, for the support of herself and her children, rather than on him, she must rely on the government alone.

XXII.

STILL another and all-sufficient answer to the argument that the use of spirituous liquors tends to poverty, is that, as a general rule, it puts the effect before the cause. It assumes that it is the use of the liquors that causes the poverty, instead of its being the poverty that causes the use of the liquors.

Poverty is the natural parent of nearly all the ignorance, vice, crime, and misery there are in the world.*

[36]

Why is it that so large a portion of the laboring people of England are drunken and vicious? Certainly not because they are by nature any worse than other men. But it is because their extreme and hopeless poverty keeps them in ignorance and servitude, destroys their courage and self-respect, subjects them to such constant insults and wrongs, to such incessant and bitter miseries of every kind, and finally drives them to such despair, that the short respite that drink or other vice affords them, is, for the time being, a relief. This is the chief cause of the drunkenness and other vices that prevail among the laboring people of England.

If those laborers of England, who are now drunken and vicious, had had the same chances and surroundings in life as the more fortunate classes have had; if they had been reared in comfortable, and happy, and virtuous homes, instead of squalid, and wretched, and vicious ones; if they had had opportunities to acquire knowledge and property, and make themselves intelligent, comfortable, happy, independent, and respected, and to secure to themselves all the intellectual, social, and domestic enjoyments which honest and justly rewarded industry could enable them to secure,—if they could have had all this, instead of being born to a life of hopeless, unrewarded toil, with a certainty of death in the workhouse, they would have been as free from their present vices and weaknesses as those who reproach them now are.

It is of no use to say that drunkenness, or any other vice, only adds to their miseries; for such is human nature—the weakness of human nature, if you please—that men can endure but a certain amount of misery, before their hope and courage fail, and they yield to almost anything that promises present relief or mitigation; though at the cost of still greater misery in the future. To preach morality or temperance to such wretched persons, [37] instead of relieving their sufferings, or improving their conditions, is only insulting their wretchedness.

Will those who are in the habit of attributing men’s poverty to their vices, instead of their vices to their poverty,—as if every poor person, or most poor persons, were specially vicious,—tell us whether all the poverty and want that, within the last year and a half,* have been brought so suddenly—as it were in a moment—upon at least twenty millions of the people of the United States, were brought upon them as a natural consequence, either of their drunkenness, or of any other of their vices? Was it their drunkenness, or any other of their vices, that paralyzed, as by a stroke of lightning, all the industries by which they lived, and which had, but a few days before, been in such prosperous activity? Was it their vices that turned the adult portion of those twenty millions out of doors without employment, compelled them to consume their little accumulations, if they had any, and then to become beggars,—beggars for work, and, failing in this, beggars for bread? Was it their vices that, all at once, and without warning, filled the homes of so many of them with want, misery, sickness, and death? No. Clearly it was neither the drunkenness, nor any other vices, of these laboring people, that brought upon them all this ruin and wretchedness. And if it was not,what was it?

This is the problem that must be answered; for it is one that is repeatedly occurring, and constantly before us, and that cannot be put aside.

In fact, the poverty of the great body of mankind, the world over, is the great problem of the world. That such extreme and nearly universal poverty exists all over the world, and has existed through all past generations, [38] proves that it originates in causes which the common human nature of those who suffer from it, has not hitherto been strong enough to overcome. But these sufferers are, at least, beginning to see these causes, and are becoming resolute to remove them, let it cost what it may. And those who imagine that they have nothing to do but to go on attributing the poverty of the poor to their vices, and preaching to them against their vices, will ere long wake up to find that the day for all such talk is past. And the question will then be, not what are men’s vices, but what are their rights?

Endnotes

*

To give an insane man a knife, or any other weapon, or thing, by which he is likely to injure himself, is a crime.

*

The statute book of Massachusetts makes ten years the age at which a female child is supposed to have discretion enough to part with her virtue. But the same statute book holds that no person, man or woman, of any age, or any degree of wisdom or experience, has discretion enough to be trusted to buy and drink a glass of spirits, on his or her own judgment! What an illustration of the legislative wisdom of Massachusetts!

*

Cato committed suicide to avoid falling into the hands of Cæsar. Who ever suspected that he was insane? Brutus did the same. Colt committed suicide only an hour or so before he was to be hanged. He did it to avoid bringing upon his name and his family the disgrace of having it said that he was hanged. This, whether a really wise act or not, was clearly an act within reasonable discretion. Does any one suppose that the person who furnished him with the necessary instrument was a criminal?

*

An illustration of this fact is found in England, whose government, for a thousand years and more, has been little or nothing else than a band of robbers, who have conspired to monopolize the land, and, as far as possible, all other wealth. These conspirators, calling themselves kings, nobles, and freeholders, have, by force and fraud, taken to themselves all civil and military power; they keep themselves in power solely by force and fraud, and the corrupt use of their wealth; and they employ their power solely in robbing and enslaving the great body of their own people, and in plundering and enslaving other peoples. And the world has been, and now is, full of examples substantially similar. And the governments of our own country do not differ so widely from others, in this respect, as some of us imagine.

*

It is to this incentive alone that we are indebted for all the wealth that has ever been created by human labor, and accumulated for the benefit of mankind.

*

Except those great crimes, which the few, calling themselves governments, practise upon the many, by means of organized, systematic extortion and tyranny. And it is only the poverty, ignorance, and consequent weakness of the many, that enable the combined and organized few to acquire and maintain such arbitrary power over them.

*

That is, from September 1, 1873, to March 1, 1875.

T.28 Our Financiers: Their Ignorance, Usurpations, and Frauds (1877).↩

Title

[28.] Our Financiers: Their Ignorance, Usurpations, and Frauds. Reprinted from “The Radical Review” (Boston: A. Williams & Co., 1877).

- also online Shorter Works, vol. 2: </titles/2292#lf1531-02_head_040>

Text

OUR FINANCIERS: THEIR IGNORANCE, USURPATIONS, AND FRAUDS.

Our Financiers:

THEIR IGNORANCE, USURPATIONS, AND FRAUDS.

By LYSANDER SPOONER.

REPRINTED FROM “THE RADICAL REVIEW.”

BOSTON:

SOLD BY A. WILLIAMS AND COMPANY,

283 Washington Street.

1877.

[2] [3]

I.

THE great battle in Ohio for more money,—by which is here meant the political canvass for the year 1875,—in which the whole country participated, is still worthy of notice, not only because there is doubtless a widespread determination to fight it over again, but also because it affords a ludicrous, but much needed, illustration, as well as an irrefutable proof, of the prevailing ignorance on the subject of money.

That that violent, but ridiculous, contest may serve as a caution to the people against being drawn into the same, or any similar one, in future, is one purpose of this article. Its other purposes are to expose the usurpations and frauds by which the people are deprived of money, and to vindicate, as far as its limits will permit, the right of the people, by the use of their own property and credit, to supply themselves with such money as they can, and as much of it as they please, free of all dictation or interference from the government.

The question at issue in Ohio, in 1875, was the 3.65 interconvertible bond scheme; a scheme, of the practical operation of which the writers and speakers, on neither side, seemed to have the least real knowledge whatever. It would have had neither the good effects which its friends expected, nor the bad effects which its enemies predicted. That is to say, it would neither have provided “a currency equal to the wants of trade,” as claimed by its friends, nor would it have flooded the country with a depreciated currency, as predicted by its opposers. As a system for furnishing a permanent currency, either good or bad, it would have fallen utterly dead. Worse than that, instead of furnishing a permanent currency in place of that we now have, [4] it would have deprived us of the one we now have, without furnishing any substitute at all.

That such would have been its effect is evident from these considerations, namely:—

It is a settled principle that a paper currency depends, for its true and natural market value, wholly upon the redemption that is provided for it. It has, and it can have, no more true or natural market value than the property with which it is to be redeemed. A paper currency, therefore, that has no other redemption than that of being convertible into interest-bearing bonds, can be worth no more in the market than are the bonds themselves, and, consequently, no more than it is worth for conversion into the bonds. And it is worth nothing for conversion into bonds, unless there are some one or more persons who wish thus to convert it. In other words, it is this demand for the bonds, as investments, that alone gives the currency any value in the market. A convertible note of this kind, therefore, circulates as money only because some one or more persons want it for conversion. And it circulates only until it falls into the hands of such a person. When it falls into his hands, he converts it, and thus takes it out of circulation.

The destiny, therefore, of all such convertible paper, that is in circulation as money, is finally to be converted into bonds, and thus taken out of circulation. And there is then an end of it, so far as its being currency is concerned.

We saw the operation of this principle so long as the greenbacks were convertible into bonds. The conversion went on so rapidly that we should soon have had no greenbacks at all in circulation, had not the conversion of them into bonds been stopped by law. And our greenbacks now remain in circulation only because they are not convertible into bonds.

For the reasons now given, if our whole national debt were today in circulation as currency, having no other redemption than that of being convertible into 3.65 bonds, it would be worth for circulation no more than it would be worth for such conversion; and, as a natural consequence, it would rapidly, though not instantly, be converted, and thus taken out of circulation; and we should then have entirely lost it as a currency. And, as the scheme [5] proposes to prohibit all other currency, we should then be left with no currency at all.

The 3.65 bond scheme, therefore, instead of being a scheme for providing the country with a currency, is perfectly suicidal, so far as furnishing a currency is concerned. It is simply a scheme for providing a paper currency for circulation by withdrawing all such currency from circulation! It is absurdity run mad.

II.

But the advocates of the scheme will say that it provides that these bonds may be reconverted into currency. Yes, it does indeed provide that they may, but not that they must, be thus reconverted. And it offers no inducements whatever for such reconversion; because, if reconverted, the currency will then be worth no more in the market than the bonds are worth as investments; since all that will give the currency any value at all in the market will then, as before, be the simple fact that it (the currency) is convertible back into the same bonds from which it has just been reconverted!

The bonds are to be holden by men who preferred the bonds to the currency, when both had the same value in the market. And now the scheme contemplates that the country will go without any currency at all, until these same bondholders shall change their minds, and prefer the currency to the bonds, when both have still the same value in the market! Who can tell when the bondholders will do that? The bonds are their estates, their investments, on which they rely for their daily bread. They are the estates which they have preferred to all others, as a means of living. To presume that they will reconvert them into currency, is just as absurd as it would be to presume that a man who has just bought a farm, and relies upon it for his living; will sell it for money that will enable him to do nothing else so good for himself as to buy back the same farm that he parts with.

III.

But General Butler, who, I believe, claims to have been the author of this scheme, says that, “in case of a scarcity of money,” [6] “a demand for money by a high rate of interest will call forth these bonds.”1

He means by this that, in times of “scarcity of money,” “a high rate of interest”—that is, a higher rate than the bonds themselves bear—will induce a holder of these bonds to reconvert them into legal tender notes, in order to lend them!

This is certainly furnishing “more money” with a vengeance. The real value of the notes corresponds precisely to the value of a 3.65 interest-bearing bond, and General Butler would allow the people to have no money at all, except in some rare emergency, when the “scarcity” is so great as to induce them to give a higher rate of interest than the money is really worth,—enough higher to induce the bondholder to surrender his investments, and become a money lender instead.

This is equivalent to saying that nobody shall be permitted to borrow money, except in those emergencies when he will submit to be fleeced for the sake of getting it!

And to make it impossible for any body to borrow money, except at this extortionate rate, he would “prohibit by the severest penalties every other person, corporation, or institution from issuing any thing that might appear in the semblance of money!”

And this proposition comes from a man who proposes to furnish the people with “more money,” and thus save them from the extortions of the present money dealers!

However such an extortion might occasionally relieve an individual, who was so sorely pressed as to consent to be fleeced, it would do nothing towards supplying the people at large with money; because the money thus issued to an individual would not continue in circulation, unless it should constantly pass from hand to hand at a price beyond its true value; that is, at a price beyond its value for conversion. The result would be that the people could have no money at all, except upon the condition of their constantly giving more for the money than it was worth!

[7]

IV.

Another device of General Butler, by which he appears to think he could keep at least some of the currency in circulation, is this: He would make it “the legal tender of the United States for all debts due to or by the government or individuals.”

But this would add nothing at all to its real value; and it would have no appreciable, or certainly no important, effect in preventing the conversion of the currency into bonds; or, what is the same thing, in preventing a withdrawal of the currency from circulation; for the currency would still have no more real or true value for circulation than it would for conversion.

General Butler’s plan, therefore, amounts practically to this: He would allow the people no money at all, except on rare occasions, when, as he thinks, the “scarcity” would be so severe as to induce them to pay an extortionate price for it!

But, under such a system, there would really be no such thing as a rare and occasional “scarcity;” there would be nothing but constant, perpetual, and utter destitution. At least such would be the case, so soon as all the notes should have been converted into bonds.

The idea of allowing the people no money at all, except occasionally in times of “scarcity,” corresponds to one that should forbid the people to have any food at all, except occasionally in times of famine. Under such a system, it is plain there would never be a rare or occasional famine; but there would be, instead of it, a constant and perpetual one. So, under Butler’s scheme, there would never be any rare or occasional “scarcity of money;” but there would be a constant and perpetual destitution of it.

Yet he calls it a scheme for providing the people with more money! In reality, it is merely a scheme for depriving them of money altogether.

V.

Such being the real character of this 3.65 scheme, we are enabled to see the true character of the late battle in Ohio for and against it. And it is important to consider that, although the [8] battle was nominally fought in Ohio, the whole country took part in it. The whole country took part in it, because it was considered that the result in Ohio would very likely decide the result in the whole country.

Thus we had the ludicrous and humiliating spectacle of forty millions of people fighting a fierce and bitter contest for and against a scheme, of the real nature of which neither party knew any thing! One party thought it was a scheme for furnishing the money really needed for industry and trade. The other party thought it was a scheme for overwhelming the country with a depreciated currency. In reality, it was a scheme to deprive the country of money altogether!

If any body had any thing to fear from this system, it was the very party that advocated it; for they wanted more money and not less. And if any body had any thing to hope from the system, it was the party that opposed it; for they wanted less money and not more.

Here, then, were two opposing armies, each fighting with all fury against itself, under the belief that it was fighting its antagonist!

VI.

The question now arises: If all the statesmen (so-called), all the financiers and bankers, all the editors, all the violent writers and speakers, who took part in this contest, know no more about finance than to take such parts as they did either for or against this ridiculous and absurd scheme, how much do they know about the system which the industry and prosperity of the country really require?

And if we shall conclude that they do not know any thing, perhaps we may conclude that they should not quite so arrogantly assume to dictate to us what, or how much, money we shall, or shall not, have; nor, consequently, to decide (as it is their purpose to do) what, or how much, money all other property shall be sold for.

Perhaps we may even conclude that men who have demonstrated their ignorance beyond all cavil or controversy, as they have, and who, by their ignorance, or something worse, have brought upon forty millions of people such ruin and misery as [9] they have, ought to be exceedingly modest for the rest of their lives, especially on the subject of money.

Perhaps we may conclude that to paralyze the industry of the country for four, five, or six years together, at a loss of three, four, or five thousand millions of dollars per annum,—say, twenty thousand millions in all,—under pretence that it is necessary in order to raise, by five, ten, or fifteen per cent., the market value of eight hundred millions,—that is, to raise their value, say, one hundred millions in all,—perhaps, I say, we may conclude that to thus impoverish a people to the extent of twenty thousand millions, under pretence of saving or giving to somebody one hundred millions, is neither good financiering, good morals, nor good government; and that it indicates that there is something a great deal worse than sheer ignorance at work in the plans of the government.

Perhaps we may conclude that a dollar, in order to be a standard of value, must have something like a fixed value itself, which it will maintain against all competition; that, if it has any thing like such a fixed value, then ten, a hundred, a thousand, or a million of dollars must necessarily have ten, a hundred, a thousand, or a million times more value than one dollar has; and to say that, by the prohibition of all other money, one dollar can be made to have as much “purchasing power” as ten, a hundred, a thousand, or a million dollars, is only to say that, by the prohibition of all other money, the holder of the one dollar will be enabled to extort, in exchange for it, ten, a hundred, a thousand, or a million times more of other men’s property than the money is worth.

Perhaps we may conclude that the holders of the present stock of money, whose cardinal financial principle is that, by the prohibition of all other money, any small amount becomes invested with a “purchasing power” indefinitely greater than its true and natural market value, and who openly avow that that is their reason for insisting that all money shall be suppressed, except that small amount which they themselves hold, thereby virtually proclaim their purpose to be to so use their money as to extort, in exchange for it, an indefinite amount more of other men’s property than the money is worth. And perhaps we may conclude that a government which, on this [10] ground, as avowed by its most conspicuous members and partisans, maintains a hard monopoly of money, thereby virtually acknowledges itself to be a mere instrument in the hands of these extortioners, for accomplishing the purposes they have in view.

Perhaps we may conclude that it is indispensable to all honest and equitable traffic that the money that is paid for any other property should have the same amount of true and natural market value as the property that is given in exchange for it; and that the moment this principle is acknowledged, all justification for the interference of the government ceases; since it is the sole right of the parties to contracts to decide for themselves, in each case, what money, and what amount of money, is, and is not, a bona fide equivalent for the property that is to be given in exchange for it.

Perhaps, also, we may conclude that the notes of private persons or private companies, who have property with which to pay their notes, and who can be sued and compelled to pay them, with interest and costs from the time of demand, are quite as likely to give us a specie-paying currency, and are quite as deserving of the name of “honest money,” as are the notes of a government that has no property to pay with; that cannot be sued or compelled to pay; and that has no intention of paying, unless, or until, it can do so without relaxing the monopoly it is determined to maintain.

Perhaps we may conclude that a government, which, for ten years together, prohibits, by a ten per cent. tax, all specie-paying notes, and at the same time, by the grossest usurpation, makes its own irredeemable, depreciated, non-specie-paying notes a legal tender in payment of all private debts, cannot reasonably be credited (however loud may be its professions) with any burning desire either for “specie payments,” or for “honest money.”

Perhaps we may conclude that any privileged money whatever, whether issued by a government or by individuals, is necessarily a dishonest money; just as a privileged man is necessarily a dishonest man; and just as any other privileged thing is necessarily a dishonest thing. For this reason we may perhaps conclude that a government that constantly cries out for “honest money,” when it all the while means and maintains, and insists [11] upon maintaining, a privileged money, acts the part only of a blockhead or a cheat.

Perhaps we may conclude that, when the fraudulent pretences by which the monopoly of money has been thus far maintained, and the fraudulent purposes for which it has been maintained, have been so fully demonstrated that they can no longer be concealed or denied, and after the effects of the monopoly have been to impoverish the country to an amount at least twenty times greater than the whole amount of the privileged money,—perhaps we may conclude that, after all these results, the responsibility of the authors of the monopoly is not to be evaded, nor their motives justified, by any such mock freedom in banking as is offered to us, provided we will use only government bonds as banking capital, and come under all such regulations and conditions as the government may prescribe, and thus give up all right to bank upon any portion of the thirty thousand millions of other property which we have (or once had, and may have again); at least twenty thousand millions of which are better banking capital than any government bonds can be; and which we have a perfect right to use as banking capital, without asking any permission of the government, or coming under any of its regulations or conditions.

Perhaps we may conclude that this attempt of the government to delude us into the idea that we can have perfect freedom in banking, while deprived of our right to use the twenty or thirty thousand millions of banking capital we already have, and while restricted to the contemptible amount of capital we can have, or can afford to have, under the system proposed by the government, is very much like a proposal to establish perfect freedom in farming by requiring men to give up all the farms they now have, and buy some of the government lands in Oregon or Alaska, and there come under all such regulations and conditions as the government may prescribe.

Perhaps we may conclude that the establishment of a monopoly of money is equivalent to the establishment of monopolies in all the businesses that are carried on by means of money,—to wit, all businesses that are carried on at all in civilized society; and that to establish such monopolies as these is equivalent to condemning all persons, except those holding the [12] monopolies, to the condition of tributaries, dependents, servants, paupers, beggars, or slaves. Perhaps we may conclude that the establishment of a monopoly of money is also equivalent to a prohibition upon all businesses, except such as the monopolists of money may choose to license. And perhaps we may conclude that, if government were to prohibit directly all businesses, except such as it should choose to license, and, by direct grants, were to make all these licensed businesses subjects of monopoly, its acts, in so doing, would be no more flagrant tyrannies, and no more flagrant violations of men’s natural rights, than are its acts in establishing the single monopoly of money.

Perhaps, after we shall have been insulted and impoverished by a few more such cheats as the “specie payment” cheat, the “honest money” cheat, the “free banking” cheat, and all the other cheats to which the government has resorted, for the one sole purpose of maintaining that monopoly of money on which the last administration relied for its support, and which the present administration is evidently determined to maintain, we may conclude that it is time for the people to take the matter of money into their own hands, and assert their right to provide their own money, in their own way, free of all dictation or interference from the government.

Perhaps we may conclude that the right to live, and to provide ourselves with food, clothing, shelter, and all the other necessaries and comforts of life, necessarily includes the right to provide ourselves with money; inasmuch as, in civilized life, money is the immediate and indispensable instrumentality for procuring all these things. Hence we may perhaps conclude that a people who surrender their natural right to provide themselves with money, practically surrender their right to provide for their own subsistence; and that a government that demands such a surrender, or attempts to take from them that right, and give it as a monopoly to a few, is as necessarily and as plainly the mere instrument of that few, as it would be if it were to require the people to surrender their right to follow their occupations as farmers, mechanics, and merchants, and give all these occupations as monopolies into the hands of the same few to whom it now gives the monopoly of money.

[13]

Perhaps we may conclude that we want no special laws whatever, either of license, prohibition, or regulation, on the subject of banking; that bankers, like other men, should be free to make their own contracts, and then, like other men, be compelled to fulfil them; and that their private property, like the private property of all other men, should be holden to pay their debts.

Perhaps we may conclude that it is the natural right of every man, who has a dollar’s worth of property that can be taken by legal process and applied to the payment of a promissory note, to offer his note for that amount in the market; and that it is the natural right of every body that pleases, to accept that note in exchange for other property; and that it is also a natural right of every subsequent holder of that note to offer it again in the market, and exchange it for other property with whomsoever may choose to accept it.

And since, in this way, it is not only theoretically possible, but absolutely practicable, that, to say the least, a very large amount of the material property of the country should be represented by promissory notes, and thus made to aid in furnishing a solvent and legitimate currency; and since nobody can be required to accept such a currency unless he pleases; and since nobody who chooses to accept it can either say that he is wronged, or be said to wrong any body else, by accepting it,—perhaps we may conclude that such a currency as this—if the people, or any portion of them, prefer it to any other that is offered them—can not rightfully be prohibited.

Perhaps we may conclude that no considerable accumulations of coin are necessary to maintain specie payments; that, where banking is free, and the private property of the bankers is holden for the debts of the banks, the business of banking naturally and necessarily falls into the hands of men of known wealth, whose notes challenge the scrutiny, and command the confidence, of the whole community; that, as these men, if permitted to do it, are always ready to supply the market with the greatest amount of notes that can be kept in circulation, the public have no temptation to accept any doubtful notes, and doubtful notes can consequently get no circulation; that, when the public are thus satisfied of the solvency of the notes they hold, they prefer them to coin, and the bankers rarely have any occasion to redeem them otherwise [14] than by receiving them in payment of the notes they discount; that, as all the bank notes issued are wanted to pay the notes discounted, and are, at short intervals after their issue,—say in two, three, or four months, on an average,—returned to the banks in payment of notes discounted, the bankers, as a general rule, have no need to provide for any other redemption; and that, consequently, coin, unless in very small amounts, is merely dead capital, for which the bankers have no use whatever.

And, if the practicability or utility of this system should be doubted, perhaps we may refer the doubters to the example of Scotland, where, for eighty years,—from 1765 to 1845,—all the banks of Scotland, with two or three exceptions, stood upon the principle of the individual liability of their stockholders; enjoying perfect freedom in the issue of their notes, subject only to these restrictions, namely, that they should issue no notes below one pound, and none except those made payable on demand.1 The result was that Scotland had the best system of banks, or at least the best association of banks, for solvency, stability, and utility, that was ever known in Europe.2 During all that period of eighty years, while the banks of England were failing by the hundreds, and many of them proving utterly rotten, and while all that did not prove rotten repeatedly suspended specie payments,—at one time for more than twenty years,—the banks of Scotland never suspended specie payments, and their notes were always equal to coin. And, by introducing manufactures, they raised Scotland, within that period, from a miserable poverty-stricken condition (the effect of her cold climate and barren soil) to a condition of prosperity and wealth second to that of no other people in Europe. These facts, and others that cannot here be enumerated at length, demonstrate that, where banks rest upon the individual liability of stockholders, or upon any other basis that gives to the public an absolute guarantee of the solvency of the banks, banking may be made perfectly free, and the amount of currency as great as can be kept in circulation, and yet that it will always be equal to coin. And they prove also that all the [15] arguments that are now used to justify restraints upon banking, and limitations upon the amount of currency, in order to maintain specie payments, proceed wholly from gross ignorance or fraud.1

Perhaps we may conclude that money is simply property that is cut up, or divided, into such pieces or parcels as are convenient and acceptable to be given and received in exchange for other property; and that any man who has any property whatever that can be cut up, or divided, into such pieces or parcels, has a perfect legal and moral right thus to cut it up, and then freely offer it in the market, in competition with all other money, and in exchange for any other commodity, that may there be offered in competition with, or in exchange for, it. Perhaps we may conclude that the simple fact of these pieces or parcels being called money, or not called money,—of their bearing the stamp or license of the government, or not bearing it,—has nothing to do with his right to offer them in the market, or to sell them, or lend them, or exchange them, on such terms as the parties to the contracts may mutually agree upon; that the simple facts that they are property,—property that is naturally vendible,—and that they are his property, entitle him to sell them, or lend them, to whomsoever may wish to buy, or to borrow, them; and to do all this on such terms as the parties, free of all interference from the government, may agree upon. And perhaps we may conclude that these pieces or parcels may as rightfully be bought, sold, and exchanged (if the parties so agree) by means of contracts on paper—notes, checks, drafts, bills of exchange, or whatever else—promising to deliver them on demand, or at times agreed on, as by actual delivery of the parcels themselves, at the time of the contract.

Perhaps we may conclude that, instead of Congress having the right, in General Butler’s phrase, to “prohibit, by the severest penalties, every other person, corporation, or institution [than the government itself, or those whom it licenses] from issuing any [16] thing that might appear in the semblance of money,” it has no such right whatever, nor any semblance of such a right; that it has no color of right in the matter, beyond the simple “power to provide for the punishment of counterfeiting the securities and current coin of the United States;” that, so far from their having any such right, it is one of the first and most sacred of all the duties of any and every government (that has any duties at all) to protect every man in his natural right to offer in the market every vendible or loanable commodity he has to sell, or to lend; and to sell it, or lend it, to any and every man who wishes to buy it, or borrow it; and that it is the duty of the government to protect him in his liberty to do this by any and every possible form of contract—whether check, note, draft, bill of exchange, or whatever else—that is naturally and intrinsically just and obligatory.

Perhaps we may conclude that it is as much the duty of government to protect each and every man, who has any thing deserving the name of money, or that men may choose to call money, in his right to sell or lend it to any and every other man who may choose to accept it as money, as it is to protect him in his right to sell or lend any other property whatever, which he may wish to sell or lend, and which other men may wish to buy or borrow.

Perhaps we may conclude that the simple fact that men may, or may not, choose to call any particular commodity money, makes no difference whatever in the nature, character, quality, or value of the commodity itself; and therefore cannot affect the right of men to buy, or sell, or lend, or borrow it; or to give it in exchange for any other property, on such terms as the parties (without fraud) may mutually agree upon.

Perhaps we may conclude that all men, who are presumed competent to make reasonable and obligatory contracts, must also be presumed to be just as competent to judge of the value of any money that may be offered them, as the men who offer it are to judge of the value of the commodities they are to receive in exchange for it.

Perhaps, in short, we may conclude that it is one of the natural rights of men to sell their property for such money, and as [17] much of it, as is offered to them for it, and as they choose to accept.

Perhaps we may also conclude that the idea of providing the people with money by prohibiting all money except such as the government itself may specially provide or license, is just as absurd, preposterous, and tyrannical as would be the idea of providing the people with food, clothing, or shelter, by prohibiting all food, clothing, or shelter, except such as the government itself may specially provide or license.

Perhaps we may conclude that, as it is with all other commodities, so it is with money, namely, that free competition in producing it and offering it in the market is the sure, and only sure, way of guaranteeing to us the greatest supply, the best article, and on the best terms; that, inasmuch as banking is but a very recent invention,—but one on which all industry and all other inventions depend mainly for their efficiency,—it is just as absurd to suppose that we have already attained perfection in it, as it would be to suppose we had attained perfection in any or all the other arts by which industry is carried on; that it is, therefore, just as absurd and suicidal to prohibit all new experiments and inventions in banking, as it would be to prohibit all new experiments and inventions in agriculture, mechanics, or any of the other arts of life; and that, to be consistent, those who would prohibit all new experiments and inventions in banking ought also to insist that the patent office be closed, and that all new experiments and inventions in any and every art and science whatsoever be prohibited.

Perhaps we may conclude that, however much money, or however many kinds of money, may be offered in the market, there is no danger that the holders will give any more of it in exchange for other men’s property or labor, than such property or labor is worth; and that, therefore, there is no danger that the prices of either property or labor will ever be too high; or, what is the same thing, that property or labor will ever bring any more money than it is worth.

Perhaps we may conclude that it is time that those men who claim that gold and silver coins, by the monopoly now given to them as money, are kept at a price far above their true and [18] natural value as metals, and who claim that they should still be kept at that price by restrictions upon all other money, were taught that all honest and equitable commerce requires that each and every commodity that may be sold at all—whether it be called money, or by any other name—should be sold only at the price it will bear in free and open market, and subject to the free competition of every other commodity that may there be offered in competition with, or in exchange for, it; that the free and open market is as much the true and only test of the true and natural market value of every thing that can be called money, as it is of the true and natural market value of every thing that is exchanged for money.

Perhaps we may conclude that, since industry is an animal, so to speak, that feeds and lives on money; since its strength, activity, and growth depend mainly upon the amount of money that is furnished to it; since we as yet know of no limits to its increase in power, except the limits set by the money that is supplied to it; since, when it is fully supplied with money, it will create two, five, ten, a hundred, often thousands, sometimes millions, and even hundreds and thousands of millions, of dollars of wealth, for every dollar that it consumes,1 but, when stinted or deprived of money, necessarily languishes or dies; and since, when it languishes or dies, mankind languish or die with it,—perhaps, in view of these facts, we may conclude that to stint or deprive it of money is not merely bad economy, but fatuity and suicide.2

And, finally, perhaps we may conclude that a government [19] that sacrifices a million of lives to maintain its power, and then uses that power to trample in the dust all the natural rights of the survivors, and to cheat, plunder, and starve them, for the mere profit of the holders of eight hundred millions of money, is not a government that should be tolerated for any great length of time.

Lysander Spooner.

Endnotes

1

See his speech in New York, October 14, 1875, reported in the New York “Daily Graphic” of October 15.

1

The first of these restrictions only impaired the usefulness of the banks, without adding any thing to their solvency.

2

And better than any ever known in the United States, unless, possibly, those in Rhode Island and one or two other States.

1

We can have a much better system even than the Scotch; better than the system of promissory notes; one that will furnish more money (if more can be used), and be more easy and convenient for the bankers and better for the public. But freedom to make experiments with any and all systems that men may choose to experiment with is what is necessary to give assurance, at all times, that we have the best possible system.

1

The estimate in the text is no extravagance. Suppose we could ascertain the precise number of dollars and cents, or of pounds, shillings, and pence, expended by such men as Watt, and Arkwright, and Stephenson, and Morse, and Whitney, and Fulton, and Woodworth, and Hoe, and McCormick, and so many others, in making and perfecting their inventions,—what proportion would those figures bear to those that should even attempt to measure the immeasurable value of the inventions themselves? And what must we think of the folly, absurdity, and tyranny of that dearth of money which our monopolists of money would have maintained if they could; which would have made these inventions impossible; and which now withholds them from four-fifths, perhaps from nine-tenths, of mankind?

2

We have all heard of the bumpkin who tried an experiment to ascertain upon how little food his horse could be made to subsist. His experiment succeeded to his entire satisfaction, until, from some cause he could not understand, his horse happened to die. Stupid as he was, he may possibly have suspected it was from a want of food; for we do not hear that he ever tried the experiment again. But our financial bumpkins (or something worse) persist in trying the same experiment over and over again. The industry upon which they try it invariably dies; but they learn no wisdom, or caution (or honesty) from the results.

T.29 The Law of Prices: A Demonstration of the Necessity for an Indefinite Increase of Money (1877).↩

Title

[29.] The Law of Prices: A Demonstration of the Necessity for an Indefinite Increase of Money. Reprinted from “The Radical Review” (Boston: A. Williams & Co., 1877).

- also online Shorter Works, vol. 2: </titles/2292#lf1531-02_head_042>

Text

THE LAW OF PRICES:

A DEMONSTRATION OF THE NECESSITY FOR AN INDEFINITE INCREASE OF MONEY.

THE

LAW OF PRICES:

a demonstration of

THE NECESSITY FOR AN INDEFINITE INCREASE OF MONEY.

by

LYSANDER SPOONER.

reprinted from “the radical review.”

BOSTON:

A. WILLIAMS AND COMPANY,

283 Washington Street.

1877.

[2] [3]

I.

THE writers on money seem never to have obtained the first glimpse of the fundamental law which governs prices, and which necessitates a constant and indefinite increase in the volume of money. That law may be illustrated in this manner:

Suppose an island cut off from all communication with the rest of the world, and inhabited by one hundred men. Suppose that these hundred men know no industry except the production of wheat; that they produce annually one thousand bushels, each man producing ten bushels, which is enough for his own consumption. Suppose further that these hundred men have money to the amount of five dollars each in gold, silver, and copper coins, and that these coins are valued by them as highly as similar coins are now by us. What will be the price of wheat among these men, compared with the coins? Plainly, it will bear no price at all. Each man producing for himself all he can eat, no one has any occasion to buy. Therefore none can be sold at any price.

But suppose that one after another of these hundred men leave wheat-growing and engage in the production of other commodities,—each producing a different commodity from all the others,—until there shall be a hundred different commodities produced; only one man being left to produce wheat. And suppose that this one man has increased his product from ten bushels to one thousand. There is now just as much wheat as there was when all were employed in producing it. The only differences are, first, that the whole amount is produced now by one man, where [4] before it was produced by a hundred men; and, secondly, that the ninety-nine men have each engaged in the production of some commodity different from that produced by any other, but of which, we will suppose, all the others wish to purchase each his proportionate share for consumption.

There is now a hundred times as much wealth produced as when all produced wheat and nothing else. But each kind has only a single producer, while it finds a hundred consumers. And each man’s product, we will suppose, has the same value with every other man’s product.

What, now, will be the price of wheat among these hundred men, relatively to the coins? Doubtless a dollar a bushel. When the first man abandoned wheat-growing, and betook himself to some other occupation, he created a demand for ten bushels of wheat, which he still wanted for consumption as before. This demand for ten bushels would doubtless be sufficient to give wheat the price of one cent per bushel where it had no price before. When a second man of the hundred abandoned wheat-growing, he created a demand for ten bushels more; making twenty bushels in all. This increased demand would doubtless be sufficient to raise the market price of wheat to two cents a bushel. When a third man of the hundred left wheat-growing for some other pursuit, his demand for ten bushels would raise the market price another cent; and so on, until by the time the ninety-nine had left wheat-growing, the continually increasing demand would have raised the price to ninety-nine cents a bushel; for convenience of round numbers, say a dollar a bushel.

Here, then, wheat has been raised from no price at all to a dollar a bushel, not because there is any less wheat produced, or any more consumed, than before, but solely because the whole thousand bushels are now produced by one man, instead of being produced, ten bushels each, by the hundred different men who were to consume it; and because, further, each of the ninety-nine men who have left wheat-growing is able to purchase wheat, inasmuch as he has been producing some other commodity which brings him as good a price as the wheat brings to the man who still produces wheat.

Under this new state of things, then, the man who continues to produce wheat produces a thousand bushels, worth a dollar a [5] bushel; that is, a thousand dollars’ worth in all. Each of the other ninety-nine produces an equal amount of market value in some other commodity. The whole hundred men, then, produce wealth that has now a market value of one hundred thousand dollars, where originally they had produced nothing that had any market value at all.

This change in the price of wheat has been produced, then, solely by reason of the diversity of industry and production that has taken place among these hundred men. And the market prices of all the other ninety-nine commodities have been affected by the same law, and to the same extent, as has been the price of wheat.

Here, then, is a hundred thousand dollars’ worth of commodities produced, each man producing a thousand dollars’ worth.

As each man retains a hundredth part of his product—that is, ten dollars’ worth—for his own consumption, he has nine hundred and ninety dollars’ worth for sale. The whole hundred men, therefore, have one hundred times nine hundred and ninety dollars’ worth for sale, which is equal to ninety-nine thousand dollars in all; for convenience of round numbers, say one hundred thousand dollars.

The hundred men, having each five dollars in coins, have in the aggregate five hundred dollars. To make the purchases and sales of these hundred thousand dollars’ worth of commodities will require each of these five hundred dollars to be exchanged for commodities, on an average, two hundred times. That is, in carrying on the commerce of these hundred men for a year, their whole stock of money must be exchanged, on an average, once in a little less than two days. Or if we reckon but three hundred business days in a year, we shall find that the whole stock of money must be exchanged, on an average, once in every day and a half.

Such rapidity of exchange would be practicable enough if the holders of the coins should all part with them readily at their true and natural value, instead of holding them back in the hope of getting for them more than they were really worth. But where there was so active a demand for the coins as to require that the whole stock be sold, on an average, once in every day and a half, it is natural to suppose that the holders of the coins [6] would hold them back, in order to get more for them than their true and natural value. And in so far as they should do so, they would obstruct trade, and by obstructing trade obstruct and discourage production, and thus obstruct the natural increase of wealth.

II.

But suppose, now, that the number of men on this island be increased from one hundred to one thousand, and that they are all engaged in producing wheat only; each man producing ten bushels, which is all he wants for his own consumption. And suppose that each man has five dollars in gold, silver, and copper coins. What will be the price of wheat among these men, relatively to the coins? Clearly, it will have no market price at all, any more than it had when there were but a hundred men.

But suppose that nine hundred and ninety-nine of these thousand men leave wheat-growing, and engage each in the production of a commodity different from that produced by any one of the others. And suppose that the one who still continues to produce wheat is able, from his increased science, skill, and machinery, to produce ten thousand bushels—ten bushels for each of the thousand men—where before he produced only ten bushels for himself.

There is now just as much wheat produced as there was before. But it is now all produced by one man—nine hundred and ninety-nine thousandths of it being produced for sale—instead of being produced by a thousand men, each producing ten bushels for his own consumption.

What, now, will be the price of wheat among these thousand men? Why, being governed by the same law that has already been illustrated in the case of the hundred men, it will go on rising one cent at a time as each man leaves wheat-growing for some other pursuit, until, when nine hundred and ninety-nine shall have left wheat-growing, and shall have become purchasers of wheat, instead of producers, the price will be nine hundred and ninety-nine cents a bushel—for convenience of round numbers, say ten dollars a bushel—where before it bore no price at all.

In this state of things, then, the man who still continues to [7] produce wheat will produce ten thousand bushels; worth, in the market, ten dollars a bushel, or a hundred thousand dollars in all.

Here, then, we have the price of a hundred thousand dollars for ten thousand bushels of wheat, which, when produced by a thousand different men, each producing ten bushels for his own consumption, had no market value at all. And the other nine hundred and ninety-nine men, we will suppose, produce each a different commodity from all the others; the whole annual produce of each having the same market value as the wheat-grower’s crop of wheat. The market value, then, of all the products of the whole thousand men will be one thousand times one hundred thousand dollars—that is, one hundred million dollars—where before, when they were all producing wheat and nothing else, their whole products had no market price at all.

When we consider that each producer retains for his own consumption but a thousandth part of his products (a hundred dollars’ worth), and that, consequently, nine hundred and ninety-nine parts of all these products are not only to be sold, but to be sold twice, as they would now have to be,—that is, once by the producer to the merchant, and once by the merchant to the consumer,—we see that there will be sales to the amount of one hundred and ninety-nine million eight hundred thousand dollars—for convenience of round numbers, say two hundred million dollars—where before, when all were producing wheat, there was no such thing as a sale of a cent’s worth of any thing.

These thousand men, we have supposed, had each five dollars in coins—making five thousand dollars in all—with which to make these purchases and sales of two hundred millions. How many times over will all these coins, on an average, have to be bought and sold, in order to effect these exchanges? Dividing two hundred millions by five thousand, we have the answer; namely, forty thousand times! Dividing this number by three hundred,—which we will suppose to be the number of business days in a year,—we find that, in order to make their exchanges, their whole stock of money must be bought and sold, on an average, one hundred and thirty-three times every day!

Thus we see that one thousand men, with such a diversity and amount of production as we have supposed, would have two thousand times as many purchases and sales to make as the one hundred [8] men. And in making these purchases and sales, we see that their whole stock of money would have to be bought and sold two hundred times oftener than would the whole stock of money of the one hundred men in making their purchases and sales of one hundred thousand dollars. We see, too, that, if we call eight hours a day,—that being the usual number of business hours,—their whole stock of money would have to be bought and sold, on an average, sixteen times over every hour, or once in every four minutes; whereas the whole stock of money of the one hundred men would have to be bought and sold only once in a day and a half; or—calling eight hours a day—once in twelve hours.

Such, let it be specially noticed, is the difference in the rapidity required in the purchase and sale of money in making the exchanges among a thousand men, on the one hand, and a hundred men, on the other, although the thousand men have the same amount of money, man for man, as the hundred men; the thousand men having five thousand dollars, and the hundred having but five hundred dollars.

This illustration gives some idea of the effect produced upon prices by the expansion of industry and the diversity of production. And yet the writers on money tell us that a large number of men need no more money, man for man, than a small number; that, if a hundred men need but five hundred dollars of money, a thousand men will, by the same rule, need but five thousand dollars.

In the case already supposed,—of the one thousand men,—how far would their five thousand dollars avail as money towards making their exchanges of two hundred million dollars? Plainly, they would avail nothing. The holders of them, seeing the necessities of the people for money, would hold back their coins, and demand so much more than their true and natural value as to put a stop substantially to all production, except of such few things as could be exchanged by barter, or as each one could produce for his own consumption.

The obvious truth is that, in order to carry on their commerce with money at its true and natural value, and consequently without obstruction or extortion from the money holders, it is necessary that these thousand men, with their increased diversity and [9] amount of production, should have two hundred times as much money, man for man,—and two thousand times as much in the aggregate,—as was necessary for the one hundred men, as before supposed.

In other words, the thousand men have two hundred million dollars of sales to make, where the hundred men had but one hundred thousand. Dividing two hundred million by one hundred thousand, we find that the thousand men, with such diversity and amount of production as we have supposed, have two thousand times as many sales to make as the one hundred had, and consequently that they require two thousand times as much money as did the one hundred.

III.

But to show still further the ratio in which diversity of industry tends to increase the prices of commodities, relatively to any fixed standard, let us suppose that the number of men on this island be still further increased from one thousand to ten thousand. And suppose that all these ten thousand are engaged in producing wheat alone; each producing ten bushels for his own consumption, that being all he wants. And suppose they have each five dollars in gold, silver, and copper coins. What will be the price of wheat, relatively to the coins? Clearly, it will have no price at all, not even so much as one cent a bushel.

But suppose that all but one of these ten thousand men should leave wheat-growing, and engage in other industries; each one producing a different commodity from all the others. And suppose that the one who still continues wheat-growing has acquired such science, skill, and machinery, that he is now able to produce a hundred thousand bushels—that is, ten bushels each for ten thousand men—where before he only produced ten bushels for himself.

What will now be the price of wheat among these ten thousand men? Why, by the same law that has been already illustrated it will be ninety-nine dollars and ninety-nine cents a bushel—for convenience of round numbers, say one hundred dollars a bushel—where before it had no market value at all.

And yet there is just as much wheat produced as there was [10] before, and every man gets just as much wheat to eat as he had before, when all were producing wheat.

In this state of things, the one hundred thousand bushels of wheat produced by one man at a hundred dollars a bushel—which will then be its market value—are worth one hundred thousand times one hundred dollars; that is, ten million dollars. And suppose that all the other nine thousand nine hundred and ninety-nine men are each engaged in an industry as profitable as that of the remaining wheat-grower. The aggregate production of the whole ten thousand men will now have a market value equal to ten thousand times ten million dollars; that is, one hundred thousand million dollars.

And if we suppose that all these commodities are to be sold1 three times over,—that is, once by the producer to the wholesale dealer, once by the wholesale dealer to the retailer, and once by the retailer to the consumer,—we shall see that there are to be sales equal to three hundred thousand million dollars, where before, when all were producing wheat and nothing else, there was no sale of a cent’s worth of any thing, and no market value at all for any thing.

Now suppose that the coins which these men had have remained fixed at the same value they had when the men were all producing wheat. How many times over, then, must they necessarily be bought and sold in the course of a year, in order to effect the purchase and sale of these three hundred thousand millions—or one hundred thousand millions three times over—of property that are to be exchanged?

There are ten thousand men, each having five dollars in coins; that is, fifty thousand dollars in all. Dividing three hundred thousand millions by fifty thousand, we find that the whole of these fifty thousand dollars in coins must be bought and sold six million times! Six million times annually, to effect the exchanges of the products of ten thousand men!

Dividing six million by three hundred (which we will suppose to be the number of business days in a year), we find that, on an average, their whole stock of money must be bought and sold [11] twenty thousand times over every day. Or supposing the business day to be eight hours, the coins would all have to be bought and sold twenty-five hundred times over every hour; equal to forty-one and two-thirds times every minute.

And this happens, too, when the ten thousand men have the same amount of coin, man for man, as the one hundred and the one thousand men had in the cases before supposed.

Thus we see that, with such a diversity and amount of production as we have supposed, the exchanges of the ten thousand men would require that their whole stock of money should be bought and sold one hundred and fifty times oftener than the whole stock of the one thousand men, and thirty thousand times oftener than the whole stock of the one hundred men.

We also see that, in the cases supposed, the ten thousand men, having three hundred thousand millions of exchanges to make, have fifteen hundred times as many as the one thousand men, who had but two hundred millions; and that they have three million times as many exchanges to make as the one hundred men. Consequently the ten thousand men require fifteen hundred times as much money as the one thousand men, and three million times as much money as the one hundred men.

IV.

According to the foregoing calculations, the ratio of increase required in the volume of money is this: Supposing the diversity and amount of production to keep pace with the increase in the number of men, and supposing their commodities to be sold but once,—that is, directly from producer to consumer,—a hundred men would require a thousand times as much money as ten men; a thousand men would require a thousand times as much money as a hundred men; ten thousand men would require a thousand times as much money as a thousand men; and so on.

But inasmuch as, in the case of a thousand men, their commodities would have to be sold twice,—that is, once by the producer to the merchant, and once by the merchant to the consumer,—the thousand men would require two thousand times as much money as the hundred men. And inasmuch as, in the case of the ten thousand men, their commodities would have to be [12] sold three times over,—that is, once by the producer to the wholesale dealer, once by the wholesale dealer to the retailer, and once by the retailer to the consumer,—the amount of money required, instead of being either one thousand or two thousand times as much as in the case of the one thousand men (whose commodities were sold but twice), would be one and a half thousand times (as three sales are one and a half times as much as two)—that is, fifteen hundred times—as much as in the case of the one thousand men.

Stating the results of the preceding calculations in the simplest form, we find that different numbers of men, having a diversity and amount of production corresponding to their numbers, in making their exchanges with each other, require money in the following ratios, relatively to each other; namely,—

10 men require

$100

100 men require

100,000

1,000 men require

200,000,000

10,000 men require

300,000,000,000

But as the same money could be used many times over in the course of a year, they would not need an amount of money equal to the amount of their annual exchanges. If, then, we suppose the aggregate of their annual exchanges to be as above, and their whole stocks of money to be used three hundred times over in a year,—that is, once a day, calling three hundred the number of business days in a year,—we find that the stocks of money required would be as follows:—

10 men would require

$ .33⅓

100 men would require

333.33⅓

1,000 men would require

666,666.33⅓

10,000 men would require

1,000,000,000.00

Or, to state the case in still another form, supposing their aggregate annual exchanges to be as above, and supposing their whole stocks of money to be bought and sold three hundred times over in the year, the money required, per man, would be as follows:—

[13]

10 men would require

$ .03⅓ each.

100 men would require

3.33⅓ each.

1,000 men would require

666.66 each.

10,000 men would require

100,000.00 each.

If any body thinks he can dispute these figures, let him attempt it. If they cannot be disputed, they settle the law of prices.

V.

The foregoing suppositions are, first, that the ten thousand men came finally to have ten thousand different kinds of commodities where they originally had but one,—namely, wheat; secondly, that they finally came to have ten thousand times as much wealth, in quantity, as they had originally, when all were producing wheat; thirdly, that wheat, which at its first sales brought only one cent a bushel, came afterwards to sell for ten thousand cents a bushel,—although the amount of wheat produced, and the supply of wheat for each individual, were the same in the one case as in the other; fourthly, that the same effect is produced upon the prices of all the rest of the ten thousand different kinds of commodities as upon the price of wheat; and, fifthly, that the annual sales made by the ten thousand men amounted finally to three hundred thousand million dollars, where their first sales had amounted to but ten cents,—the amount which the first man who left wheat-growing paid for his yearly supply of ten bushels.

It is not necessary to suppose that such a diversity and amount of production will ever be realized in actual life, although that is not impossible. It is sufficient that these figures give the law that governs prices, and consequently demonstrate that a constant and enormous increase of money must be necessary to keep pace with the increase of population, wealth, and trade, if we wish to give free scope to diversity and amount of production.

Unless money should be increased so as to keep pace with this increased demand, the result would be, first, obstruction to trade; secondly, obstruction to, and discouragement of, industry; and thirdly, a corresponding obstruction to the increase of wealth.

In fact, unless the amount of money were increased, these [14] hundred men, thousand men, and ten thousand men, instead of having a hundred, a thousand, or ten thousand different kinds of commodities, would advance very little beyond the state they were in when all were producing wheat and nothing else. Some feeble attempts at other industries might possibly be made, but their money, like the shells and wampum of savages, would aid these attempts but slightly; and the men, unless they invented some other money, would either remain absolute savages, or attain only to a very low state of barbarism.

The practical question, then, is whether it is better that these ten thousand men should remain mere savages, scratching the earth with rude sticks and stones to produce each ten bushels of wheat, or whether it is better that they should all have the money—which stands in political economy for all the ingenuity, skill, science, machinery, and other capital which money can buy—that may be necessary to enable them to produce, in the greatest possible abundance, and of the greatest possible excellence, all the ten thousand commodities which will contribute to their happiness.

A full discussion of this subject would require much more space than can here be given to it. It may perhaps be continued at a future time, if that should be necessary. But enough has doubtless now been said to show the general law that governs prices, and consequently to show the necessity for an immense increase of money; an increase dependent upon the diversity and amount of production and the natural laws of trade applicable thereto; such an increase as no legislation can ascertain beforehand, or consequently prescribe.

Lysander Spooner.

Endnotes

1

All but ten millions—a ten thousandth part of the whole—would have to be sold, since each man would retain for his own consumption only a ten thousandth part of what he produced; namely, one thousand dollars’ worth.

T.30 Gold and Silver as Standards of Value: The Flagrant Cheat in Regard to Them (1878).↩

Title

[30.] Gold and Silver as Standards of Value: The Flagrant Cheat in Regard to Them. Reprinted from “The Radical Review” (Boston: A. Williams & Co., 1878).

- also online Shorter Works, vol. 2: </titles/2292#lf1531-02_head_044>

Text

GOLD AND SILVER AS STANDARDS OF VALUE:

THE FLAGRANT CHEAT IN REGARD TO THEM.

Gold and Silver

as

STANDARDS OF VALUE:

THE FLAGRANT CHEAT IN REGARD TO THEM.

By LYSANDER SPOONER.

reprinted from “the radical review.”

BOSTON:

A. WILLIAMS AND COMPANY,

283 Washington Street.

1878.

[2] [3]

ALL the usurpation, and tyranny, and extortion, and robbery, and fraud, that are involved in the monopoly of money are practised, and attempted to be justified, under the pretence of maintaining the standard of value. This pretence is intrinsically a false one throughout. And the whole motive for it is to afford some color of justification for such a monopoly of money as will enable the few holders of gold and silver coins (or of such other money as may be specially licensed and substituted for them) to extort, in exchange for them, more of other men’s property than the coins (or their substitutes) are naturally and truly worth. That such is the fact, it is the purpose of this article to prove.

In order to be standards by which to measure the values of other things, it is plain that these coins must have a fixed and definite—or, at least, something like a fixed and definite—value of their own; just as a yard-stick, in order to be a standard by which to measure the length of other things, must necessarily have a fixed and definite length of its own; and just as a pound weight, in order to be a standard by which to measure the weight of other things, must necessarily have a fixed and definite weight of its own. It is only because a yard-stick has a fixed and definite length of its own that we are enabled to measure the length of other things by it. It is only because a pound weight has a fixed and definite weight of its own that we are enabled to measure the weight of other things by it. For a like reason, unless gold and silver coins have fixed and definite—or, at least, something like fixed and definite—values of their own, they can serve no purpose as standards by which to measure the values of other things.

[4]

The first question, then, to be settled is this,—namely, what is that fixed or definite value (or something like a fixed or definite value) which gold and silver coins have, and which enables them to be used as standards for measuring the values of other things?

The answer is that the true and natural market value of gold and silver coins is that value, and only that value, which they have for use or consumption as metals,—that is, for plate, watches, jewelry, gilding, dentistry, and other ornamental and useful purposes. This is the value at which they now stand in the markets of the world, as is proved by the fact that doubtless not more than one-tenth, and very likely not more than one-twentieth, of all the gold and silver in the world (out of the mines) is in circulation as money. All the rest is in plate, watches, jewelry, and the like; except that in some parts of the world, where property in general is unsafe, large amounts of gold and silver are hoarded and concealed to prevent their being taken by rapacious governments, or public enemies, or private robbers. Leaving these hoards out of account, doubtless ninetenths, and very likely nineteen-twentieths, of all the gold and silver of the world are in other forms than coin.

And as fast as new gold and silver are taken out of the mines, they are first carried to the mints, and made into coins; then they are carried all over the world by the operations of commerce, and given in exchange for other commodities. Then the goldsmiths and silversmiths, in every part of the world (unless among savages), are constantly taking these coins and converting them into such articles of plate, jewelry, and the like as they have call for. In this way the annual crops of gold and silver that are taken from the mines are worked up into articles for use as regularly as the annual crops of breadstuffs are consumed as food, or as the annual crops of iron, and cotton, and silk, and wool, and leather are worked up into articles for use.

And when the coins have thus been wrought into articles for use, they for ever remain so, unless these articles become unfashionable, or for some other reason undesirable. In that case, they are sent again to the mint, and converted again into coin; then put into circulation again as money; then taken out of circulation again by the goldsmiths and silversmiths, and wrought [5] again into plate, jewelry, and the like, for use. They remain in circulation as money only while they are going from the mint to the goldsmiths and silversmiths. And this route is a very short and quick one. An old coin is rarely seen, unless it has been hoarded.1

Unless new gold and silver were being constantly taken from the mines, and old and unfashionable plate and jewelry were being constantly recoined, these metals would soon disappear altogether as money.

All this proves that they have no true or natural value as money beyond their value for use or consumption as metals. If they were worth more as money than they are for use or consumption as metals, they would, after being once coined, remain for ever in circulation as money, instead of being taken out of circulation and appropriated to these other uses.

In Asia, where these metals have been accumulating from time immemorial, and whither all the gold and silver of Europe and America—except so much as is caught up and converted into plate, watches, jewelry, etc.,—is now going, and has been going for the last two thousand years,2 very small amounts only are in circulation as money. Instead of using them as money, the people—or so many of them as are able—cover themselves with jewelry, fill their houses with plate, and their palaces and temples with gold and silver ornaments. Instead of investing their surplus wealth in fine houses, fine clothing, fine furniture, fine carriages, etc., as Europeans and Americans do, it is nearly all invested in gold, silver, and precious stones. In every thing else they are miserably poor. Even the rich are so poor that they cannot afford to indulge, as we do, in such luxuries as costly dwellings, clothing, furniture, and the like, which require frequent repairs, or quickly decay, or wear out with use. Hence their preference for ornaments of gold, silver, and precious stones, which never wear out, and retain their value for ever.

In China, which has at least a fourth, and perhaps a third, of all the population of the globe, gold and silver are not coined at [6] all by the Government. The only coin that is coined by the Government, and that is in circulation as money, is a small coin, of a base metal, worth no more than a fifth, sixth, or seventh of one of our cents. This coin is the common money of the people. And gold and silver are not in circulation at all as money, except some few foreign coins, and some plates, bars, or nuggets of gold and silver that pass by weight, and are generally weighed whenever they pass from one person to another.

In India, among two hundred millions of people, although the few rich have immense amounts of gold and silver plate and ornaments, very little gold and silver is in circulation as money. The mass of the people have either no money at all,—taking their pay for their labor in rice or other articles of food,—or have only certain shells, called cowries, of which it takes from fifty to a hundred to be worth one of our cents.1

In still other parts of Asia, gold and silver have little more circulation as money than in China and India. And yet Asia, I repeat, is the great and final market whither all the gold and silver of Europe and America—except what has been caught up and converted into plate, jewelry, and the like—is now going, and has been going for two thousand years, and whence they never return.

In Europe and America, the great increase of gold from the mines of California and Australia within the last thirty years has added only moderately to the amount of gold in circulation as money. But it has added very largely to the use of gold for plate, watches, jewelry, and the like. This greatly increased consumption of gold for ornamental purposes in England and America, and the increased flow of gold to Asia, to be there devoted to the same uses, account for the fact—which to many persons seems unaccountable—that the great amounts of gold taken from the mines have added so little to the amount in circulation as money.

And even though the amounts of gold and silver taken from the mines should hereafter be still greater—no matter how much greater—than they ever have been heretofore, they would all be disposed of in the same way; namely, first be converted [7] into coin and put into circulation as money, and then taken out of circulation and converted into plate, jewelry, and the like. They would exist in the form of money only while they were performing their short and predestined journey from the mint to the goldsmiths and silversmiths.

These facts—let it be emphatically repeated—prove beyond all color of doubt, or possibility of refutation, that the true and natural market value of gold and silver coins is that value, and only that value, which they have for use or consumption as metals. Consequently it is at that value, and only at that value, that they have the least claim to be considered standards by which to measure the value of any thing else. And any body who pretends to write about the value of money from any other basis than this is either an ignoramus or an impostor,—probably the latter.

II. But that gold and silver coins can have no true or natural market value as money beyond their value for use or consumption as metals will still more clearly appear when we consider why it is that they are in demand at all as money; why it is that they have a market value; and why it is that every man will accept them in exchange for any thing he has to sell.

The solution of these questions is that the original, primal source of all the demand for them as money—the essential and only reason why they have market value, and sell so readily in exchange for other commodities—is simply because they are wanted to be taken out of circulation, and converted into plate, jewelry, and other articles of use.

They are wanted for these purposes by all the people on the globe. Hence they are carried at once from the countries in which they are first obtained—the mining countries—to all the other countries of the world as articles of commerce, and given in exchange for such other commodities as the holders of them prefer for the gratification of their wants and desires.

If they were not wanted to be taken out of circulation and wrought into articles of use, they would have no market value as money, and could not circulate at all as money. No one would have any motive to buy them, and no one would give any thing of value in exchange for them.

The reason of this is that gold and silver, in the state of coin, [8] cannot be used.1 Consequently, in the state of coin, they produce nothing to the owner. A man cannot afford to keep them as an investment, because that would be equivalent to losing the use of his capital. He must, therefore, either exchange them for something he can use—something that will be productive and yield an income; or else he must convert them into plate, jewelry, etc., in which form he can use them and get an income from them.

It is, therefore, only when gold and silver coins have been wrought up into plate, watches, jewelry, etc., that they can be said to be invested; because it is only in that form that they can be used, be productive, or yield an income.

The income which they yield as investments—that is, the income which they yield when used in the form of plate, jewelry, etc.—is yielded mostly in the shape of a luxurious pleasure—the pleasure of gratified fancy, vanity, or pride.

This pleasure is the same as that which is derived from the use of ornaments generally; such as feathers, and ribbons, and laces, and precious stones, and many other things that have no value at all as food, clothing, or shelter, yet bring great prices in the market simply for their uses as ornaments.

The amount of this income we will suppose to be six per cent. per annum on their whole value. That is to say, a person who is able, and has tastes in that direction, will give six dollars a year for the simple pleasure of using one hundred dollars’ worth of plate, jewelry, etc.

This six dollars’ worth of pleasure, then, or six dollars’ worth of gratified fancy, vanity, or pride, is the annual income from an investment of one hundred dollars in gold and silver plate, jewelry, and the like.

This, be it noticed, is the only income that gold and silver are capable of yielding; because plate, jewelry, and the like are the only forms in which they can be used. So long as they remain [9] in coin, they cannot be used, and therefore cannot yield an income.

It is, then, only this six per cent. annual income, this six dollars’ worth of pleasure, which gold and silver yield as ornaments,—that is, as investments,—that is really the cause of all the demand for them in the market, and consequently of their being bought and sold as money.

By this it is not meant that every man who takes a gold or silver coin as money takes it because he himself wants a piece of gold or silver plate or jewelry; nor because he himself intends or wishes to work it into plate or jewelry,—for such is not the case probably with one man in a thousand, or perhaps one man in ten thousand, of those who take the coin. Each man takes it as money simply because he can sell it again. But he can sell it again solely because some other man wants it, or because some other man will want it, in order to convert it into articles for use. He can sell it solely because the goldsmith, the silversmith, the dentist, the gilder, etc., will sometime come along and buy it, take it out of circulation, and work it up into some article for consumption,—that is, for use.

This final consumption or use, then, is the main-spring that sets the coins in circulation, and keeps them in circulation, as money.

It is solely the consumption or use of them, in other forms than coin, that creates any demand for them in the market as money.

It is, then, only the value which gold and silver have as productive investments in articles of use,—in plate, watches, jewelry, and the like,—that creates any demand for them, or enables them to circulate as money.

And since this value which the coins have for use or consumption as metals is the only value that enables them to circulate at all as money, it is plain that it necessarily fixes and limits their true and natural value as money. Consequently any body who gives more for them as money than they are worth for use or consumption as metals gives more for them than they are worth for any purpose whatever,—more, in short, than their true and natural market value.

We all can understand that, if wheat were to circulate as [10] money, it could have no more true or natural market value as money than it had for use or consumption as food; since it would be its value for food alone that would induce anybody to accept it as money. All the wheat that should be in circulation as money would be destined to be taken out of circulation, and consumed as food; and if anybody should give more for it as money than it was worth for food, he, or some subsequent owner, would have to submit to a loss, whenever the wheat should come to be consumed as food.

For these reasons, the wheat as money could be no true or natural equivalent for any commodity that had more true or natural market value for use or consumption than the wheat.

So anybody can understand that, if silk, wool, cotton, and flax were to circulate as money, they could have no more true or natural market value as money than they had for use or consumption for clothing, or other analogous purposes. Their value for these other purposes would alone give them their value as money. Of course, then, their true and natural market value as money would be fixed and limited by their value for these other uses. They could plainly have no greater value as money than they had for clothing and other articles of use. As they would all be destined to be taken out of circulation, and converted into clothing or other articles of use, it is plain that, if anybody should give more for them as money than they were worth for clothing and other articles of use, he, or some subsequent owner, would have to submit to a loss whenever they should come to be converted into clothing, or any other article of use.

The same reasons that would apply to wheat, and silk, and wool, and cotton, and flax, if they were to circulate as money, and that would fix and limit their value as money, apply equally to gold and silver coins, and fix and limit their value as money.

We are brought, therefore, to the same conclusion as before,—namely, that the value which the coins have for use or consumption as metals is their only true and natural value as money. Consequently, this value which they have as metals is the value, and the only value, at which they can be said to be standards by which to measure the value of any thing else.

III. Assuming it now to be established that the true and natural market value of gold and silver coins as money is absolutely [11] fixed and limited by their value for use or consumption as metals, and that their value for use or consumption as metals is the only value at which they can be called standards for measuring the values of other things, we come to another proposition,—namely, that the use or circulation of any possible amount of paper money has no tendency whatever to reduce the coins below their true and natural market value as metals, or, consequently, to diminish their value as standards.

Plainly the paper can have no such power or tendency, because the paper does not come at all in competition with the coins for any of those uses which alone give them their value. We cannot make a watch, a spoon, a necklace, or an ear-ring out of the paper, and, therefore, the paper cannot compete with the coins for those uses. Consequently it cannot diminish their market value for those uses, or—what is the same thing—their value as standards.

If the coins were never used at all as money, they would have the same true and natural market value that they have now. Their use or circulation as money adds nothing to their true and natural market value as metals, and their entire disuse as money would take nothing from their true and natural market value as metals. Consequently it would not diminish their value as standards. In other words, it would not reduce the coins below their true and natural value as standards.

Every dollar’s worth of other vendible property in the world has precisely the same amount of true and natural market value as has a dollar in coin. And if every dollar’s worth of other vendible property was bought and sold as money in competition with the coins, the true and natural market value of the coins would not be lessened thereby. They would still have their true and natural amount of market value,—that is, their value for plate, jewelry, and the like,—the same as though all this other property were not bought and sold in competition with them. The coins and all other property would be bought and sold as money only at their true and natural market values, respectively, for their different uses. One dollar’s worth of any one kind of property would have the same amount of true and natural market value for its appropriate use that a coin, or any other dollar’s worth of property, would have for its appropriate use. But none of them would have any additional value on account of their being bought and sold as money.

[12]

Now, all the other vendible property of the world cannot be actually cut up into pieces or parcels, each capable of being carried about in the pocket, and each having the same amount of true and natural market value as a dollar in coin. But it is not only theoretically possible, but actually practicable, that nearly or quite all this other vendible property should be represented by contracts on paper,—such as certificates, notes, checks, drafts, and bills of exchange,—and that these contracts shall not only have the same value with the coins in the market as money, but that, as money, they generally shall be preferred to the coins.

These contracts are preferred to the coins as money not only because they are more convenient, but also because we can have so many times more of them.1

Every solvent piece of paper that can circulate as money—whether it be a certificate, note, check, draft, bill of exchange, or whatever else—represents property existing somewhere that is legally holden for the redemption or payment of the paper, and that can either be itself delivered in redemption of it, or be otherwise made available for its payment. And if every dollar’s worth of such property in the world could be represented in the market by a contract on paper promising to deliver it on demand, and if every dollar’s worth could be delivered on demand in redemption of the paper that represented it, the world then could have an amount of money equal to its entire vendible property. And yet clearly every dollar of paper would be equal in value to a dollar of gold or silver. Clearly, also, all this paper would do nothing towards reducing gold and silver coins below their true and natural market values,—that is, their values for use or consumption as metals.

The gold and silver coins would be good standards—as good perhaps as any that can be had—by which to measure the values of all this other property. But a gold dollar, or a silver dollar, would have no more true or natural market value than would each and every other dollar’s worth of property that was measured by it.2

[13]

Under such a system of currency as this, there could evidently be no inflation of prices, relatively to the true and natural market values of gold and silver. Such a currency would no more inflate the prices of one thing than of another. It would just as much inflate the prices of gold and silver themselves as of any thing else. Gold and silver would stand at their true and natural market values as metals; and all other things would also stand at their true and natural values for their respective uses.

No more of this currency could be kept in circulation than would be necessary or convenient for the purchase and sale of commodities at their true and natural market values, relatively to gold and silver; for if at any time the paper was not worth as much, or would not buy as much, in the market as gold or silver, it would be returned to the issuers for redemption in gold and silver, and thus be taken out of circulation.1

Thus we are brought again to the conclusion that it is only when gold and silver coins are suffered to stand at their true and natural values as metals—which are also their true and natural values as standards—that they can be said to measure truly the values of other things.

At their values as metals the coins serve as standards by which to measure the value of all other money, as well as of all other property. But at any other than their true and natural values as metals they will naturally and truly measure the value of nothing whatever,—neither of other money, nor of any thing else.

IV. We come now to still another proposition,—namely, that [14] no possible amount of paper money that can be put in circulation in any one country that is open to free commerce with the rest of the world can affect the true or natural market value of gold or silver coins in that country.

If the coins should be entirely excluded from circulation by the paper, they still would have the same true and natural market value as if they were the only money in circulation; for, in both cases alike, their true and natural market value in that country would be determined by their value in the markets of the world.

The coins can be carried from any one part of the world to any other part at so small an expense that they can have no appreciably greater market value in any one part than in any other. And their true and natural market value in all parts of the world depends upon the general consumption of them as metals, and not at all upon their circulation as money. They are everywhere simply merchandise in the market of the world, waiting for consumption, like any other merchandise.

This fact—that the disuse of the coins as money in any one country cannot reduce their value in that country below their value in the markets of the world—was fully tested in the United States for fourteen or fifteen years,—that is, from 1861, or 1862, to 1876. During the whole of that time gold and silver were wholly absent from general circulation as money. Yet they had the same value here as metals that they had in other parts of the world either as money or as metals. And they were as much used during that time for plate, watches, jewelry, and the like as they ever were.

The people of the United States comprise not more than a twenty-fifth—perhaps not more than a thirtieth—part of the population of the globe. And if they were to abandon the use of gold and silver entirely, not only for money, but for plate, watches, jewelry, and every other purpose whatever; if they were even to banish the metals themselves from the country,—they thereby would reduce their value in the markets of the world by not more than a twenty-fifth, or perhaps a thirtieth, of their present value. How absurd, then, to pretend that the simple disuse of them as money by one twenty-fifth, or one-thirtieth, part of the population of the globe can have any appreciable effect upon their market value the world over!

[15]

These facts prove that all restrictions imposed by law in any one country upon all other money than gold and silver coins, under pretence of maintaining the true standard of value in that country, are the merest farces, not to say the merest frauds; that they have no tendency of that kind whatever; that they only serve to derange the standard in that country by establishing a monopoly of money, and giving a monopoly and extortionate price to the coins in that country, instead of suffering them to stand at their true and natural value, both as metals and as standards, and also at the same value that they have in the markets of the world.

Furthermore, if any or all other nations have been wicked and tyrannical enough to give, or attempt to give, a monopoly and extortionate price to gold and silver coins by restrictions upon any or all other money, that is no reason why we should be guilty of the same crime. So far as such restrictions may have affected the price of the coins in the markets of the world, we may not be able to save either ourselves or the rest of mankind from the natural consequences of such a monopoly. But we are under no more obligation to follow the bad example of these nations in this matter than in any other. Because other nations enslave and impoverish their people by depriving them of all money and all credit by establishing a monopoly of money, that is no reason why we should do so. All our efforts in this direction do nothing towards making the coins better standards of value than they otherwise would be.

V. It is an utter absurdity to talk about gold and silver coins having any more true or natural value as money than they have for use or consumption as metals. To say that they have more true or natural market value as money than they have for use as metals is equivalent to saying that they have more true and natural value for being bought and sold than they have as commodities for use or consumption. And to say that they have more true or natural market value for being bought and sold than they have as commodities for use or consumption is just as absurd as it would be to say that houses, and lands, and cattle, and horses, and food, and clothing, have more true and natural market value for being bought and sold than they have as commodities for use

[16]

VI. Finally, the true and natural market value of any and every vendible thing whatever is that value, and only that value, which it will maintain in the market in competition with any and all other vendible things that can be brought into the market in competition with it. This is the only rule by which the true and natural market value of any vendible thing whatever can be ascertained; and this rule applies as much to gold and silver coins as to any other commodities whatever.

Tried by this rule, we know that the coins will bear no higher value in the market as money than they will for use or consumption as metals; because mankind have other money which they prefer to the coins, and which—if permitted to do so—they will always buy and sell as money rather than give more for the coins as money than they are worth for use or consumption as metals.

VII. To give color to the idea that solvent notes, promising to pay money on demand, tend to reduce the standard of value below that of the coins, the advocates of that idea are accustomed to say that such notes cost nothing, and have no value in themselves; and, consequently, that to suffer them to be bought and sold as money in the place of coin, and as if they were of equal value with coin, necessarily depreciates the market value of the coin at least for the time being; that, in other words, it reduces the standard of value for the time being.

The answer to this pretence is that nobody claims or supposes that a promissory note, simply as so much paper, has any value. But the contract written upon the paper—if the note be a solvent one—is in the nature of a lien upon so much material property of the maker of the note as is sufficient to pay the note, and as can be taken by legal process and sold for payment of the note.

Every solvent promissory note—whether it circulates as money, or not—is in the nature of a lien upon the property of the maker,—that is, upon the property that is legally holden for the payment of the note, and that can be taken by legal process, and applied to the payment of the note.

The value of the note, therefore, is not in the mere paper as paper, but in the property on which the contract written upon paper gives the holder a lien for the amount of the note.

[17]

In this respect, a banker’s note, circulating as money, is just like any other man’s note that is locked up in the desk or safe of the holder. The fact that it is bought and sold from hand to hand as money—that is, in exchange for other property—makes no change whatever in the character or value of the note.

In the case of a mortgage upon land, the value is not in the mere paper, as paper, upon which the mortgage is written, but in the land on which the mortgage gives the mortgagee a lien for the amount of his debt. So in the case of a note, if it be a solvent one, it is in the nature of a lien upon, or conditional title to, the property of the maker of the note,—property that is legally holden for the payment of the note, and that can be taken by legal process, and applied to the payment of the note.

To say that such a note has no value in itself is just as absurd as it would be to say that a mortgage on land has no value in itself. Everybody knows that neither the mortgage nor the note has any value as mere paper; that the value is in the land, or the property, that is holden, or liable to be taken, for the payment of the mortgage or note.

In every case where material property is represented by paper,—as in the case of a deed, mortgage, certificate of stock, certificate of deposit, check, note, draft, or whatever else,—the value is in the property represented, and not in the paper that represents it. The paper has no value, except as it contains the evidence of the right to the property represented by it. And this is as true in the case of what is called paper money as in all other cases where property is represented by paper. The value of the money is not in the paper as paper, but in the property represented by the paper, and to which, or on which, the contract written on the paper gives a title, claim, or lien. The property that is represented by the paper, and which constitutes the real money, is just as real substantial property as is gold, or silver, or any other money or property whatever. And it is really an incorrect and false use of the term to call such money paper money, as if the paper itself were the real money; or as if there were no money, and no value, outside of the paper. A dollar’s worth of land, wheat, iron, wool, or leather, is just as much a dollar in real value as is a dollar of gold or silver; and when represented by paper, it is just as real money, so far as value is concerned, as is gold and silver.

[18]

Every solvent promissory note is a mere representative of, or lien upon, or conditional title to, material property in the hands of the maker; property that has an equal value with coin; that is legally holden for the payment of coin; and that can be taken by legal process, and sold for coin, which must be applied to the payment of the note. When, therefore, a man sells a solvent promissory note, he sells a legal title to, or claim to, or lien upon, so much actual property in the hands of the maker of the note as is necessary to pay the note; property which men have just as much right to buy and sell from hand to hand as money, if they so please,—that is, in exchange for other property,—as they have to buy and sell coin, or any other money that can be invented.

And it matters not how many of these notes are in circulation as money, provided they are all solvent; since, in that case, each note represents a separate piece of property from all the others; each separate piece of property being equal in value to coin, and capable of insuring the payment of coin. If, therefore, all the material wealth of a country were thus represented by paper, the paper,—that is, the property represented by the paper—would all have the same value as the same nominal amount of coin; and the circulation of all this paper as money would do nothing towards reducing the coins below their true and natural value as metals, or below their value in the markets of the world. Consequently, it would do nothing towards depreciating the true and natural standard of value. All this other money would have the same value, dollar for dollar, as the coin; and the true and natural value of the coins as standards of value would not be changed.

There certainly can be no question that a solvent promissory note that circulates from hand to hand as money—which everybody is willing to accept in payment for other property—is just as legitimate a piece of paper, and has just as much value as a lien, or as evidence of a lien, upon the property that is holden for its payment, as any other promissory note whatever. If such a note be not legitimate, if it have no value, then no promissory note whatever is legitimate, or has value. And if the issue of such notes for circulation as money—that is, among those who voluntarily give and receive them in exchange for other property—be illegitimate, and ought to be suppressed, then all promissory [19] notes whatsoever are equally illegitimate, and ought to be suppressed. But if any one such note, which any one man, or company of men, can make, be legitimate, then any and every other similar note, which any other man, or company of men, can make, is equally legitimate.

VIII. But to hide the deception that is attempted to be practised under pretence of maintaining the standard of value, it is said that there is but a small amount of coin in comparison with the notes that can be put in circulation as money; and that it is therefore impossible that any great number of notes, promising to pay coin on demand, can be solvent; that the property that is nominally holden to pay the notes cannot be made to bring any more coin than there really is; and that, therefore, the notes, if more numerous than the coins, must be spurious; that they promise to pay something which the makers do not possess, and which they consequently are unable to pay, no matter how much other property they may have.

One answer to this argument is that, on this principle, no promissory note whatever—whether issued for circulation or not—could ever be considered solvent, unless the maker kept constantly on hand an equivalent amount of coin with which to redeem it. Whereas we know that all notes are considered solvent, provided the makers have sufficient property to bring the coin when it is likely to be called for. And this is the principle on which all ordinary commercial credit rests.

Another answer to this argument is that, however valid it may be against notes that are either not solvent, or not known to be solvent,—that is, not issued on the credit of property sufficient to pay the notes,—it has no weight against notes that are solvent, and that are known to be solvent; because, first, if the notes are solvent, and are known to be solvent, the holders usually prefer them to coin, and therefore seldom present them for redemption in coin; and because, secondly, the notes issued for circulation are issued by discounting other solvent notes that are to be held by the bankers, and the circulating notes are, therefore, all wanted for paying the notes discounted, and, with rare exceptions, will all come back to the bankers in payment of the notes discounted; and it is, therefore, only rarely that any other redemption of the circulating notes is called for.

[20]

The bankers soon learn by experience how often coin will be called for, and how much, therefore, it is necessary for them to keep on hand for such contingencies. This amount a due regard for their own interests will induce them to keep on hand, because they cannot afford to be sued on their notes, or to have their credit injured by not meeting their notes when coin is demanded.1

The opposers of a solvent paper currency either ignorantly overlook, or craftily and dishonestly attempt to keep out of sight, the vital fact that, in all safe, legitimate, solvent, and prudent banking, all the notes issued for circulation will be wanted to pay the notes discounted, and will come back to the banks in payment of notes discounted; and that it is only rarely that any other redemption—redemption in coin—will be demanded or desired.

The pretence, therefore, that no more notes can be honestly issued for circulation than there is coin kept constantly on hand for their redemption is nothing but a pretence, since, however great the amount of notes issued,—provided they be solvent ones,—it is only a mere fraction of them—probably not so much even as one per cent.—that will ever have any call to be redeemed in coin.

IX. But it is often said that the panics which have usually occurred after any considerable increase of money by the issue of paper are proof that the paper was not equal in value, dollar for dollar, with coin. Those who say this claim that the panics are caused by the attempts of the holders of the notes to convert them into coin. These attempts have taken the form of runs upon the banks for the redemption of their notes in coin. And it is claimed that these runs upon the banks for coin are proof that the notes are not equal in value, dollar for dollar, with coin. And this proof, say they, is made complete by the fact that the banks, when thus run upon for coin, cannot redeem their notes in coin.

But these runs upon banks for coin by no means prove that [21] solvent notes are not equal in value, dollar for dollar, with coin. They prove only that the holders of the notes have doubted the solvency of the banks. These runs have never occurred in countries where the banks were known to be solvent. They have occurred only in countries where the solvency of the banks was doubted, as in England and the United States. Thus, in Scotland there is no history (so far as I know or believe) of a single run upon the banks in a period of eighty years,—that is, from 1765 to 1845. There may have been runs in a few instances upon some particular bank, but none upon the banks generally. And why? Not at all because these banks kept on hand large amounts of coin,—for they really kept very little,—but solely because the public had a perfect assurance of the solvency of the banks; an assurance resulting from the facts that each of the banking companies had a very large number of stockholders, and that the private property (including the real estate) of all these stockholders was holden for the debts of the banks. The public, therefore, knew, or felt perfectly assured, not only that the notes of the banks were all solvent, but also that they would all speedily go back to the banks, and be redeemed by being accepted in payment of notes discounted. Under these circumstances, the public not only made no runs upon the banks for coin, but even preferred the notes to the coin.

In England, on the contrary, the runs upon the banks during the same period of eighty years were very frequent. And why? Because nobody had any abiding confidence in the solvency of the banks. The Government, for the sake of giving a valuable monopoly to the Bank of England, had virtually enacted that there should be no other solvent banks in England; or at least none that could be publicly known to be solvent. This enactment was that, with the exception of the Bank of England, no bank in England should consist of more than six partners. Rich men—those who had credit and wished to use it—could generally do better with it than to put it into a company where there were only six partners, and where the credit of the partnership could not be sufficiently known to be of much value, or to protect them against runs for coin. The result was that, with the exception of the Bank of England, all, or very nearly all, the banking business in England was in the hands of men who were not only [22] unworthy of credit, but really had no credit, except so long as they were ready to redeem their notes either in coin or Bank of England notes.1

In many or most of the United States, up to 1860, the solvency of the banks was rendered doubtful, or worse than doubtful, by legislation that authorized the banks to issue notes to two, three, or four times the amount of their capital; that authorized the stockholders themselves to borrow these notes of the banks, and then exempted the private property of the stockholders from all liability for the debts of the banks. Of course it often happened that no reliance could be placed on the solvency of such banks, and that runs, which they could not meet, would be made upon them for coin.

But clearly the runs upon such banks as these did nothing towards proving that the notes of banks, known to be solvent, were not equal in value, dollar for dollar, with coin.

But the panic of 1873, in the United States, did not proceed at all from any doubt as to the solvency of the banks, but wholly from the insufficiency in the amount of money. The destruction of the State banks by a ten per cent. tax on their issues; the limitation upon the issues of the national banks to the sum of three hundred and fifty-six million dollars; and the limitation upon the greenbacks to three hundred million dollars,—reduced the currency to six hundred and fifty-six million dollars. And these six hundred and fifty-six million dollars, being, for want of redemption, some fifteen per cent. below par of specie, reduced the actual amount of money to about five hundred and fifty-eight millions. The population of the country in 1873 was at least forty millions, and the property probably forty thousand millions. This lack of money, compared with population and property, compelled traffic of all kinds to be done on credit, instead of for cash. Every thing was bought on credit, and sold on credit. And the same commodity, in going from producer to consumer, was generally sold two, [23] three, four, or more times over on credit. The consequence was that this private indebtedness among the people had become so enormous, in proportion to the money with which to cancel it, as to place the credit of the whole community at the mercy of a few holders of money, who had no motive but to extort the utmost possible from the necessities of the community. The result was the general collapse of substantially all credit.

Had there been freedom in banking, nothing of this kind would have occurred. The bankers would have been so numerous as to be able to furnish all the money that could have been kept in circulation. They would probably have supplied three, four, or five times the amount we actually had. Traffic between man and man would have been almost wholly done for cash, instead of on credit; and nothing in the form of a panic would have been known.

The panic of 1873, therefore, does nothing towards proving that solvent notes, issued for circulation as money,—no matter how great their amount,—are not equal in value, dollar for dollar, with coin.

X. But the argument that is offered perhaps with the most assurance as proof that any increase of money by means of paper reduces for the time being the gold or silver dollar below its true and natural market value is derived from the rise that takes place in the prices of commodities, relatively to gold and silver, whenever the currency is increased by the addition of paper.

This argument, if it be an honest one, implies an ignorance of two things; namely, first, an ignorance of the fact that the paper is employed as capital to diversify industry and increase production; and, secondly, an ignorance of the effect which a diversity of industry and increase of production have upon the prices of commodities, relatively to any fixed standard of value. This effect has been illustrated in a previous number of this Review, and need not be repeated here.1

The diversity of industry and increase of production that follow an increase of currency by paper, and the effect which that diversity and production have upon the prices of commodities, [24] utterly destroy the argument that the rise in prices results from any depreciation in the value of coin below its true and natural value as a metal.

A second answer to the argument drawn from the rise in prices under an abundant paper currency is to be found in the theory of the very men who oppose such a currency. Their theory is that, by the prohibition of the paper, the coins can be made to have a “purchasing power as money” indefinitely greater than their true and natural market value as metals. They hold that the coins already have “a purchasing power” as money far greater than their true and natural value as metals.

Now, inasmuch as every dollar of solvent paper currency represents—by giving a lien upon—so much real property as is equal to the coin in true and natural market value, it necessarily follows, on their own theory, that the paper has no other effect than to bring the coins down, from their unnatural, fictitious, and monopoly price, or “purchasing power,” to their true and natural value as metals; or, what is the same thing, to bring all other property up to its true and natural market value, relatively to the coins as metals.

XI. It will now be taken for granted that the following propositions have been established; namely,—

1. That the only true and natural market value of gold and silver coins is that value, and only that value, which they have for use or consumption as metals; that this is the value at which they now stand in the markets of the world; that it is the only value that has any stability; and that it is the only value at which they can be said to be standards for measuring the value of any other property whatever.

2. That inasmuch as paper money does not compete at all with gold and silver coins for any of those uses that give them their value, the true and natural market value of the coins cannot be reduced below their value as metals, or their value in the markets of the world, by any possible amount of paper money that can be kept in circulation; and that, consequently, the paper money, however great its amount, can do nothing towards reducing the coins as standards of value below their true and natural value as standards,—that is, their value as metals.

[25]

3. That the coins, standing at their true and natural value as metals, are as much standards by which to measure the value of all other money as of all other property; and, consequently, that all other money that has the same value in the market, dollar for dollar, with the coins, only increases the amount of money, without lowering the standard of value; and that, if all the other vendible property in the world were cut up into pieces or parcels, each of the same value with a dollar (or any given number of dollars) of coin, and each piece or parcel were represented by a promissory note, and all these notes were to be bought and sold as money in competition with the coins, the coins would not be thereby reduced below their true and natural market value as metals, nor, consequently, below their true and natural market value as standards.

4. That to say that the true and natural market value of the coins as standards of value is diminished by increasing the number of dollars, so long as the additional dollars are of the same value, dollar for dollar, with the standards, is equivalent to saying that the coins have no fixed—nor any thing like a fixed—value of their own; and that they are, consequently, unfit for, and incapable of being, standards of value; that to say that increasing the number of dollars, all of one and the same value, is diminishing the value of the dollar is just as absurd as it would be to say that increasing the number of yardsticks, all of one and the same length, diminishes the length of the yardstick; or as it would be to say that increasing the number of pound-weights, all of one and the same weight, diminishes the weight of the pound-weight.

XII. The four propositions in the last preceding section are so manifestly true that no one, I apprehend, will even attempt to controvert them otherwise than by asserting that the present market value of the coins does not rest wholly upon their value as metals, but, in part, upon these further facts,—namely, that the coins are money, and, secondly, that they are made a privileged money by the prohibitions or limitations imposed by law upon all other money.

If it should be said—as it constantly is said—that the fact of the coins being made money, and the further fact of prohibitions [26] or limitations being imposed upon all other money, have given the coins “a purchasing power” far above their true and natural value as metals, the answer is that such a “purchasing power” is an unjust and extortionate power—a mere power of robbery—arbitrarily granted to the holders of the coins, from no motive whatever but to enable them to get more for their coins than they are really worth; or, what is the same thing, to enable them to coerce all other persons into selling their property to the holders of the coins for less than it is worth. And this is really the only motive that was ever urged against the free purchase and sale of all other money in competition with the coins.

The frauds and extortions that are attempted to be practised by making the coins a privileged money, under cover of the pretence of maintaining the standard of value, may be illustrated in this way; namely,—

In some parts of Europe, there is said to be quite a trade in humming birds. While living, they are wanted, I suppose, as pets, the same as parrots, canaries, and some other birds. When dead, after passing through the hands of the taxidermists, they are wanted as ornaments.

Let us suppose there were such a trade in this country. And let us suppose the whole number of humming birds, already caught, in the country, to be ten thousand. And let us suppose their market value as pets and for ornaments to be ten dollars each. The market value of the whole ten thousand humming birds, then, would be one hundred thousand dollars.

And suppose these ten thousand humming birds to be owned by one hundred men, each man owning one hundred birds,—that is, one thousand dollars’ worth.

But suppose further that, in consideration of humming birds being rare, beautiful, containing much value in small space, and incapable of being rapidly increased, the government should adopt and legalize them as money, as standards of value.

And suppose that, under pretence of maintaining this standard of value unimpaired, the government should prohibit all other money, and should also prohibit all substitutes and all contracts—such as notes, checks, drafts, bills of exchange, and the like—by which the necessity for buying and selling the humming birds themselves—the legalized money—should be avoided.

[27]

Suppose, in short, that, under pretence of maintaining this standard of value, the government should establish, in the hands of these hundred owners of the humming birds, an absolute monopoly of money, and of every thing that could serve the purposes of money.

What, now, would be the market price of the humming birds? And what would become of the standard of value? Why, we know that the one hundred owners of these ten thousand humming birds, having thus secured to themselves an absolute monopoly of all the money in the country, would demand for their birds as money, a hundred, a thousand, or a million times more than their true and natural value,—that is, more than they were worth simply as humming birds. By the monopoly of money, they would be put in possession of a substantially absolute power over all the property and labor of our forty-five millions of people. There would be but one holder of money for every four hundred and fifty thousand people. These four hundred and fifty thousand people could sell neither their labor nor their property to anybody except this single owner of humming birds. And they could sell to him only at such prices as he should choose to give. And he, knowing his power over their necessities, would not part with one of his birds, unless he should get in exchange for it a hundred, a thousand, or a million times more than it was really and truly worth. In this way this pretended standard of value would be made to measure—that is, to procure for its possessor—a hundred, a thousand, or a million times more than its own true and natural value.

Of course, everybody in the country, except these hundred men, would be robbed of all their property at once, unless there should chance to be some few so situated that they could contrive to live within themselves without selling either their property or their labor. And these hundred men would soon make themselves masters and owners of substantially all the property in the country. All the other people of the country would be at their mercy, and would be permitted to live, or suffered to die, as the pleasure of the one hundred men should dictate.

Such would be the effect of establishing a monopoly of money under pretence of establishing a standard of value.

But suppose, now, on the other hand, that all men were allowed [28] to exercise their natural right of buying and selling as money any thing and every thing which they should choose to buy and sell as money. What would be the result? Why, we know from experience that, instead of buying and selling the humming birds themselves, they would rarely buy one of them. On the contrary, they would buy and sell notes, checks, drafts, and the like, representing perhaps a large portion of the property of the country. These notes, checks, and drafts would be nominally and legally made payable in humming birds, and would be in the nature of liens upon the property of the makers. And any holder of one of them could, if he chose, not only demand humming birds in payment, but, if that were refused, could sue for, and recover judgment for, so many actual humming birds as the note promised. And the property of the maker of the note would be taken by legal process, and sold for humming birds, and nothing else; and these birds would then be paid over to the holder of the note.

But we know, at the same time, that the humming birds, when thus actually paid over to the holder of the note, would be worth no more in the market than the note was before he sued on it; that they would buy no more of any thing he wanted to buy than would the note; that nearly or quite everybody who had any thing to sell would rather have the note than the birds; and that, unless he wanted to keep the birds as pets or for ornaments, he would have made a bad bargain for himself; that even if he wanted the birds to keep, he could have bought them in the market with the note at the same price and with much less trouble to himself than it cost him to obtain them by his suit; and finally, that he had made a fool and a curmudgeon of himself by bringing a suit, and taking trouble upon himself, and giving trouble to the maker of the note, in order to get something that he did not want, and which it would be a trouble and loss to him to keep, and a trouble to get rid of; for all which he would get no profit or compensation whatever.

As sensible men would not be likely to go through such unprofitable operations as this, the result would be that men generally, instead of buying and selling the humming birds themselves as money, would seldom or never buy them, except when they had a special use for them as humming birds; but, in place [29] of them, would buy and sell such notes, checks, drafts, and the like as had an equal value in the market with the birds, and were more convenient to keep, handle, and transport than the birds. The birds themselves would continue to stand, in the market, at their true and natural value as humming birds, and, as such, would be very good standards of value by which to measure the value of all other money, as well as of all other property; and all traffic between man and man would be the exchange of one kind of property for another, each at its full, true, and natural value, with no extortion or coercion on either side.

This supposed case of the humming birds gives a fair illustration of the sense, motives, and honesty of all that class of men who are continually crying out for prohibitions or limitations upon all money except gold and silver coins, or some other privileged money, under pretence of maintaining the standard of value. They all have but one and the same motive,—namely, the monopoly of money, and the power which that monopoly gives them to rob everybody else.

Lysander Spooner.

Endnotes

1

Old coins—those that are no more than twenty, thirty, or fifty years old—are so rare that they sell for high prices as curiosities.

2

That is, from Europe for two thousand years, and from America from its first discovery by Europeans.

1

I believe the English have recently attempted to introduce a small copper coin, called an anna: but what is its precise value, or what the number in circulation, I do not know.

1

The sale of them as money is not a use of them any more than the sale of a horse is a use of the horse. For convenience in speech, we call the buying and selling of money a use of it, but it is no more a use of it than the buying and selling of any other merchandise is a use of such merchandise. When a man says he wants money to use, he means only that he wants to part with it,—that he wants either to pay a debt with it, or to give it in exchange for something that he can use or consume.

1

We can have at least a hundred and fifty times as many paper dollars as we can gold and silver dollars. And yet every one of these paper dollars, if it represents a dollar’s worth of actual property that can either be itself delivered in redemption of the paper, or can otherwise be made available for the redemption of the paper, will have the same value in the market as the coins.

2

To say that a gold dollar, or a silver dollar, has any more true or natural market value than any other dollar’s worth of vendible property is just as absurd as it would be to say that a yardstick has more length than a yard of cloth or a yard of any thing else; or as it would be to say that a pound weight has more weight than a pound of sugar or a pound of stone.

1

The bankers have no motive to issue more of their notes than are needed for circulation at coin prices; because their only motive for issuing their notes at all is to get interest on them while they are in circulation. If they issue no more than are needed for circulation at coin prices, the notes, as a general rule, will remain in circulation until they come back to the bankers in payment of notes discounted; and the bankers will have no occasion to redeem them otherwise than by receiving them in payment of notes discounted. But if the bankers issue more notes than are needed for circulation at coin prices, the surplus notes will come back for redemption in coin before they have earned any interest. Thus the bankers will not only fail of getting any profit from their issues, but will subject themselves to the necessity and inconvenience of redeeming their notes with coin. They, therefore, have no chance of profit, but necessarily subject themselves to inconvenience, and perhaps loss, if they issue more notes than are wanted for circulation at coin prices.

1

The principle named in the text of course applies only to solvent banks. It has nothing to do with insolvent ones, whose business is to swindle the public. As a general rule, only those banks can be relied on as solvent where the private property of the stockholders is holden for the notes of the company. Not that there may not be other solvent ones,—for undoubtedly there may be,—but experience thus far has been largely against all others.

1

One cause that made the English banking companies—companies consisting of not more than six partners—unworthy of credit was that, although the private property of the partners was holden for the partnership debts, yet the condition of land titles in England was such as to make land practically unavailable as a basis of credit. The credit of the bankers, therefore, rested only on their personal property. That is, the credit of each banking company rested, at best, only on the personal property of not more than six persons.

1

See “The Law of Prices” in the “Radical Review” for August, 1877.

T.31 Universal Wealth shown to be Easily Attainable. Part First (1879).↩

Title

[31.] Universal Wealth shown to be Easily Attainable. Part First (Boston: A. Williams & Co., 1879).

- also online Shorter Works, vol. 2: </titles/2292#lf1531-02_head_044>

Text

UNIVERSAL WEALTH.

UNIVERSAL WEALTH

SHOWN TO BE EASILY ATTAINABLE.

PART FIRST.

By LYSANDER SPOONER.

BOSTON:

A. WILLIAMS & COMPANY,

283 Washington Street.

1879.

[2]

Entered according to Act of Congress, in the year 1879,

By LYSANDER SPOONER,

in the Office of the Librarian of Congress, at Washington.

[3]

SECTION I.

The wealth of the world is proportionate to the number of different things mankind possess, rather than to the quantity of any one thing. Thus, if every human being had as much wheat as he could eat, and had no other wealth, all would still be poor. But if, in addition to all the wheat they desire, every human being has a thousand, ten thousand, or a hundred thousand other things—each, on an average, of equal value with the wheat—the wealth of each individual, and of the world, is multiplied a thousand, ten thousand, or a hundred thousand fold.

Individuals usually desire, for their own use or consumption, but a very limited amount of any one thing; but we as yet know no limit to the number of different things they desire. And we shall never know any such limit, until the ingenuity of the human race, in the invention of new commodities, shall have been exhausted.

The great problem of universal wealth, therefore, is comprised in these two, viz.: First, how shall we give to every person the greatest possible variety of commodities? and, secondly, how shall we give to each individual as much as he desires of each and all these various commodities?

Men are able to produce almost no wealth at all by their hands alone. Until they make discoveries in science, and inventions in implements and machinery, they remain savages, few in number, and living upon such wild fruits as they can gather, and such wild [4] animals as they can kill. But they have proved themselves capable of such discoveries in science, and such inventions in implements and machinery, as will, each of them, enable a man to produce a hundred, a thousand, some of them a million, or even a hundred or a thousand million times as much wealth as he could before create with his hands alone. What labor could Watt perform with his hands, compared with that performed by his steam engine? What labor could Arkwright perform with his hands alone, compared with that performed by his spinning machine? What labor could Stephenson perform, in the transportation of freight and passengers, compared with that performed by his locomotive? What could Morse do, on foot, in the transmission of intelligence, compared with what can be done with his telegraph? What could the Assyrian do, with his tablets of baked clay, in supplying the world with reading matter, compared with what can be done with a Hoe printing press? What could men do, with their hands alone, in tunnelling mountains, building suspension bridges, and laying deep sea cables, compared with what can be done by the machinery they have invented for those purposes?

These things should teach us that it is brains, and not hands, that must be relied on for the creation of wealth. And it would be well for us to realize, much more fully than we ever have done, that brain labor, no less than hand labor, must be paid for, if we would have the benefit of it.

The discoveries in science, the invention of implements and machinery, and the invention of new commodities for consumption, have already multiplied the wealth of some portions of the world by millions and thousands of millions of what it once was. And yet it is but recently that inventions have begun to add much to the wealth of the world. For thousands, and tens, perhaps hundreds of thousands of years, mankind remained savages, or at best barbarians, for the want of such inventions as are now just beginning to be made.

At the present time, the people of the United States are acknowledged to take the lead of the whole world, especially in mechanical inventions. And yet substantially all our inventions [5] have been made within a hundred years; most of them within fifty years. We are now making from ten to fifteen thousand new inventions per annum. Some of these are of great, in fact of immeasurable, value. Many of them, although of less value, are nevertheless valuable. And yet we are probably not producing a tenth, perhaps not a hundredth, part so many inventions, in proportion to population, as we ought to do, and should do, if inventors were protected, as they ought to be, in a perpetual right to their inventions, and they and the public had the capital—that is, the money—necessary for producing inventions, and putting them into operation.

The people of the United States constitute not more than a twenty-fifth part of the population of the globe. In not more than a fourth, fifth, perhaps even a tenth, part of the world are any considerable number of inventions now being made. Not because the peoples of those other portions are naturally incapable of invention; but because they have no protection for their property in their inventions, and no money, no capital, no opportunity to make inventions, or bring them into operation. Their poverty, ignorance, and servitude suppress all their efforts in this direction.

What will be the number and value of the inventions made, and what the variety and amount of wealth produced by means of them, when, if ever, all mankind shall be protected in their property in their inventions, and shall have all the money necessary to bring their inventions into successful operation, no one now can form any idea.

SECTION II.

Money is the great instrumentality—the indispensable capital—by means of which inventions are produced, machinery operated, and their products distributed to consumers.

The inventor must have money, with which to make his experiments, subsist while making them, perfect his inventions, demonstrate their utility, and bring them into practical operation. And to do all these often requires years of time, and large expenditures of money.

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The operator of machinery must have money, with which to buy his machinery, his raw materials, and his means of subsistence while he is manufacturing his goods for the market. Then he must be able to sell his goods for money, in order to buy new materials, and subsist himself while manufacturing new goods.

The merchant must have money, with which to buy his goods; and he must be able to sell his goods for money, in order that he may buy new goods.

And, finally, the consumers of all these goods must have money, to buy and pay for all the goods that are to be manufactured.

Thus every man, who either makes inventions, operates machinery, or distributes or consumes the commodities produced, is constantly dependent upon money, for his means of production, distribution, and consumption.

And the amount of money that each one must have depends upon the market value of the commodities he has to buy, whether he buys them for production, distribution, or consumption; since the money, in each individual case, must, in order to make the contract an equitable one, be a bona fide equivalent of the commodity bought and sold.*

What, then, will be the amount of money requisite to bring out fully the inventive faculties of all mankind; set in motion all the machinery invented; distribute all the products; and thus give to mankind, for final consumption, the full benefits of all the inventions that can be made?

To answer this vital question, it is necessary to consider that the market value of all commodities, relatively to any fixed [7] standard of value—or to such a standard as a gold dollar, for the want of a better, is assumed to be—will depend wholly upon the variety and amount of commodities produced, distributed, and consumed. In other words, the market value of each man’s particular product will depend wholly upon the variety and amount of commodities which other men produce, and are willing to give in exchange for it.

To illustrate this principle, let us suppose that Mr. A is a hatter; and that he has acquired such science, skill, machinery, and money capital, that he is able, by himself alone, to manufacture ten thousand hats per annum. He manufactures these hats for sale, and not for his own consumption. Their value to himself, therefore, depends wholly upon the number and amount of other commodities which he desires, and which other persons can, and will, give him in exchange for hats. If there be no one who desires a hat, or who—though desiring one—has anything desirable that he can give in exchange for it, A’s ten thousand hats are of no value to him; simply because he can get nothing desirable in exchange for them. But if there are ten thousand other men who desire hats, and who are producing each a different commodity from all the others—a commodity as much desired by A as one of his hats is desired by each of the others—then A will be able to sell one of his hats to each of these ten thousand men, and get in exchange for it, a commodity as desirable to himself as the hat is to each of these ten thousand men. He will thus get the full and true value of his ten thousand hats, where, but for the power of these other men to produce something desirable to give in exchange, he would have got nothing at all for them; and would have utterly lost the labor of producing them.

Thus it will be seen that the market value of each man’s own product depends entirely upon the number and amount of desirable things which other men produce, and are willing to give him in exchange for his particular product.

Every man, therefore, who has the science, skill, machinery, and money capital that are necessary to enable him to produce, say, ten thousand hats per annum, has the highest interest that ten [8] thousand other men, who desire hats, shall have all the science, skill, machinery, and money capital that shall enable them to produce ten thousand other commodities that shall be as desirable to him as one of his hats is to each of these ten thousand men.

Suppose the publisher of the New York Herald has such science, skill, machinery, and money capital, that he is able to produce a hundred thousand copies of the Herald daily. And suppose there are a hundred thousand other men, and only a hundred thousand, who desire the Herald. The value of the Herald to its producer will depend, in this case, wholly upon the number and amount of other desirable things which these hundred thousand other men can, and will, give in exchange for the Herald. If they are so destitute of science, skill, machinery, and capital that they can produce nothing desirable that they can give in exchange for it, the Herald will have no value to its producer; and his labor in producing it will be thrown away. But if each one of these hundred thousand men has science, skill, machinery and capital equal to the publisher of the Herald, and is producing a commodity different from all the others—a commodity as desirable to the publisher of the Herald as the Herald is to him—he will then be able and willing to give, in exchange for the Herald, a commodity as desirable and intrinsically as valuable, as the Herald itself. And the publisher of the Herald will get the full value of, or a full equivalent for, his hundred thousand copies of the Herald.

Is it not, therefore, perfectly plain, in this case, that the publisher of the Herald has the highest interest that every man, who desires to buy the Herald, shall have all the science, skill, machinery, and capital, that may enable him to produce, and give in exchange for the Herald, something that is equally as desirable and valuable as is the Herald itself? Would it not be fatuity and suicide for the publisher of the Herald to advocate the tyranny and villainy of depriving all these hundred thousand men, who desire to buy the Herald, of all the science, skill, machinery, and capital, which alone can enable them to give, in exchange for it, something that is intrinsically as desirable and valuable as itself? Yet this is precisely what the Herald, and the press generally of [9] the country, have been doing in all past time, and are doing to-day.

Of course, we cannot know, beforehand, what varieties and amounts of commodities mankind will invent and produce in the future, when, if ever, they shall have all the facilities and inducements for invention, production, distribution, and consumption, which ample legal protection to the rights of inventors, and ample money capital, will give them. Nor can we know, beforehand, the amount of money that will be required to bring science, skill, invention, machinery, and production to their highest points, and to distribute to the consumers the commodities produced. But the following article, which has been previously published,* on “The Law of Prices,” will aid us in understanding how utterly and ludicrously inadequate, unworthy of consideration, how nearly useless in fact, are all such amounts of money as we have been accustomed to think of, as sufficient for these purposes.

In truth, nobody claims that our present amounts of money are at all adequate to the needs of industry and traffic, if the latter is to be carried on upon the principle that money should be a bona fide equivalent of the labor and property that are to be bought with it. All that those, who advocate restrictions upon money, can say in defence of them, is, that by coercing men into selling their labor and property for less than they are worth, a small amount of money can be made to have as much “purchasing power” as a larger one. This is only saying that, by establishing a monopoly of money, the few holders of that monopoly will be enabled to coerce all other men into selling their labor and property for less than they are worth. And this is the whole purpose of the monopoly. It is only a cunning species of robbery, which has hitherto been successful, solely because the victims did not understand the jugglery by which it was accomplished.

[10]

THE LAW OF PRICES:

A DEMONSTRATION OF THE NECESSITY FOR AN INDEFINITE INCREASE OF MONEY.

I.

The writers on money seem never to have obtained the first glimpse of the fundamental law which governs prices, and which necessitates a constant and indefinite increase in the volume of money. That law may be illustrated in this manner:

Suppose an island cut off from all communication with the rest of the world, and inhabited by one hundred men. Suppose that these hundred men know no industry except the production of wheat; that they produce annually one thousand bushels, each man producing ten bushels, which is enough for his own consumption. Suppose further that these hundred men have money to the amount of five dollars each in gold, silver, and copper coins, and that these coins are valued by them as highly as similar coins are now by us. What will be the price of wheat among these men, compared with the coins? Plainly, it will bear no price at all. Each man producing for himself all he can eat, no one has any occasion to buy. Therefore none can be sold at any price.

But suppose that one after another of these hundred men leave wheat-growing, and engage in the production of other commodities,—each producing a different commodity from all the others,—until there shall be a hundred different commodities produced; only one man being left to produce wheat. And suppose that this one man has increased his product from ten bushels to one thousand. There is now just as much wheat as there was when all were employed in producing it. The only differences are, first, that the whole amount is produced now by one man, where before it was produced by a hundred men; and, secondly, that the ninety-nine men have each engaged in the production of some commodity, different from that produced by any other, but of which, we will suppose, all the others wish to purchase each his proportionate share for consumption.

There is now a hundred times as much wealth produced as when all produced wheat and nothing else. But each kind has only a single producer, while it finds a hundred consumers. And each man’s product, we will suppose, has the same value with every other man’s product.

What, now, will be the price of wheat among these hundred men relatively to the coins? Doubtless a dollar a bushel. When the first man abandoned wheat-growing, and betook himself to some other occupation, he created a demand for ten bushels of wheat, which he still wanted for consumption as before. This demand for ten bushels would doubtless be sufficient to give wheat the price of one cent per bushel, where it had no price before. When a second man of the hundred abandoned wheat-growing, he created a demand for ten bushels more; making twenty bushels in all. This increased demand would doubtless be sufficient to raise the market price of wheat to two cents a bushel. [11] When a third man of the hundred left wheat-growing for some other pursuit, his demand for ten bushels would raise the market price another cent; and so on, until by the time the ninety-nine had left wheat growing, the continually increasing demand would have raised the price to ninety-nine cents a bushel; for convenience of round numbers, say a dollar a bushel.

Here, then, wheat has been raised from no price at all to a dollar a bushel, not because there is any less wheat produced, or any more consumed, than before, but solely because the whole thousand bushels are now produced by one man, instead of being produced, ten bushels each, by the hundred different men who were to consume it; and because, further, each of the ninety-nine men, who have left wheat-growing, is able to purchase wheat, inasmuch as he has been producing some other commodity which brings him as good a price as the wheat brings to the man who still produces wheat.

Under this new state of things, then, the man who continues to produce wheat produces a thousand bushels, worth a dollar a bushel; that is, a thousand dollars’ worth in all. Each of the other ninety-nine produces an equal amount of market value in some other commodity. The whole hundred men, then, produce wealth that has now a market value of one hundred thousand dollars, where originally they had produced nothing that had any market value at all.

This change in the price of wheat has been produced, then, solely by reason of the diversity of industry and production that has taken place among these hundred men. And the market prices of all the other ninety-nine commodities have been affected by the same law, and to the same extent, as has been the price of wheat.

Here, then, is a hundred thousand dollars’ worth of commodities produced, each man producing a thousand dollars’ worth.

As each man retains a hundredth part of his product—that is, ten dollars’ worth—for his own consumption, he has nine hundred and ninety dollars’ worth for sale. The whole hundred men, therefore, have one hundred times nine hundred and ninety dollars’ worth for sale, which is equal to ninety-nine thousand dollars in all; for convenience of round numbers, say one hundred thousand dollars.

The hundred men, having each five dollars in coins, have in the aggregate five hundred dollars. To make the purchases and sales of these hundred thousand dollars’ worth of commodities, will require each of these five hundred dollars to be exchanged for commodities, on an average, two hundred times. That is, in carrying on the commerce of these hundred men for a year, their whole stock of money must be exchanged, on an average, once in a little less than two days. Or if we reckon but three hundred business days in a year, we shall find that the whole stock of money must be exchanged, on an average, once in every day and a half.

Such rapidity of exchange would be practicable enough, if the holders of the coins should all part with them readily at their true and natural value, instead of holding them back in the hope of getting for them more than they were really worth. But where there was so active a demand for the coins as to require that the whole stock be sold, on an average, once in every day and a half, it is natural to suppose that the holders of the coins would hold them back, in [12] order to get more for them than their true and natural value. And in so far as they should do so, they would obstruct trade, and by obstructing trade obstruct and discourage production, and thus obstruct the natural increase of wealth.

II.

But suppose, now, that the number of men on this island be increased from one hundred to one thousand, and that they are all engaged in producing wheat only; each man producing ten bushels, which is all he wants for his own consumption. And suppose that each man has five dollars in gold, silver, and copper coins. What will be the price of wheat among these men, relatively to the coins? Clearly, it will have no market price at all, any more than it had when there were but a hundred men.

But suppose that nine hundred and ninety-nine of these thousand men leave wheat-growing, and engage each in the production of a commodity different from that produced by any one of the others. And suppose that the one who still continues to produce wheat is able, from his increased science, skill, and machinery, to produce ten thousand bushels—ten bushels for each of the thousand men—where before he produced only ten bushels for himself.

There is now just as much wheat produced as there was before. But it is now all produced by one man—nine hundred and ninety-nine thousandths of it being produced for sale—instead of being produced by a thousand men, each producing ten bushels for his own consumption.

What, now, will be the price of wheat among these thousand men? Why, being governed by the same law that has already been illustrated in the case of the hundred men, it will go on rising one cent at a time, as each man leaves wheat-growing for some other pursuit, until, when nine hundred and ninety-nine shall have left wheat-growing, and shall have become purchasers of wheat, instead of producers, the price will be nine hundred and ninety-nine cents a bushel—for convenience of round numbers, say ten dollars a bushel—where before it bore no price at all.

In this state of things, then, the man who still continues to produce wheat, will produce ten thousand bushels; worth, in the market, ten dollars a bushel, or a hundred thousand dollars in all.

Here, then, we have the price of a hundred thousand dollars for ten thousand bushels of wheat, which, when produced by a thousand different men, each producing ten bushels for his own consumption, had no market value at all. And the other nine hundred and ninety-nine men, we will suppose, produce each a different commodity from all the others; the whole annual produce of each having the same market value as the wheat-growers crop of wheat. The market value, then, of all the products of the whole thousand men will be one thousand times one hundred thousand dollars—that is, one hundred million dollars—where before, when they were all producing wheat and nothing else, their whole products had no market price at all.

When we consider that each producer retains for his own consumption but a thousandth part of his products (a hundred dollars worth), and that, consequently, nine hundred and ninety-nine parts of all these products are not only [13] to be sold, but to be sold twice, as they would now have to be,—that is, once by the producer to the merchant, and once by the merchant to the consumer,—we see that there will be sales to the amount of one hundred and ninety-nine million eight hundred thousand dollars—for convenience of round numbers, say two hundred million dollars—where before, when all were producing wheat, there was no such thing as a sale of a cent’s worth of any thing.

These thousand men, we have supposed, had each five dollars in coins—making five thousand dollars in all—with which to make these purchases and sales of two hundred millions. How many times over will all these coins, on an average, have to be bought and sold, in order to effect these exchanges? Dividing two hundred millions by five thousand, we have the answer; namely, forty thousand times! Dividing this number by three hundred,—which we will suppose to be the number of business days in a year,—we find that, in order to make their exchanges, their whole stock of money must be bought and sold, on an average, one hundred and thirty-three times every day!

Thus we see that one thousand men, with such a diversity and amount of production as we have supposed, would have two thousand times as many purchases and sales to make as the one hundred men. And in making these purchases and sales, we see that their whole stock of money would have to be bought and sold two hundred times oftener than would the whole stock of money of the one hundred men, in making their purchases and sales of one hundred thousand dollars. We see, too, that, if we call eight hours a day,—that being the usual number of business hours,—their whole stock of money would have to be bought and sold, on an average, sixteen times over every hour, or once in every four minutes; whereas the whole stock of money of the one hundred men would have to be bought and sold only once in a day and a half; or—calling eight hours a day—once in twelve hours.

Such, let it be specially noticed, is the difference in the rapidity required in the purchase and sale of money in making the exchanges among a thousand men, on the one hand, and a hundred men, on the other, although the thousand men have the same amount of money, man for man, as the hundred men; the thousand men having five thousand dollars, and the hundred having but five hundred dollars.

This illustration gives some idea of the effect produced upon prices by the expansion of industry and the diversity of production. And yet the writers on money tell us that a large number of men need no more money, man for man, than a small number; that, if a hundred men need but five hundred dollars of money, a thousand men will, by the same rule, need but five thousand dollars.

In the case already supposed,—of the one thousand men,—how far would their five thousand dollars avail as money toward making their exchanges of two hundred million dollars? Plainly, they would avail nothing. The holders of them, seeing the necessities of the people for money, would hold back their coins, and demand so much more than their true and natural value, as to put a stop substantially to all production, except of such few things as could be exchanged by barter, or as each one could produce for his own consumption.

The obvious truth is that, in order to carry on their commerce with money at its true and natural value, and consequently without obstruction or extortion [14] from the money holders, it is necessary that these thousand men, with their increased diversity and amount of production, should have two hundred times as much money, man for man,—and two thousand times as much in the aggregate,—as was necessary for the one hundred men, as before supposed.

In other words, the thousand men have two hundred million dollars of sales to make, where the hundred men had but one hundred thousand. Dividing two hundred million by one hundred thousand, we find that the thousand men, with such diversity and amount of production as we have supposed, have two thousand times as many sales to make as the one hundred had; and consequently that they require two thousand times as much money as did the one hundred.

III.

But to show still further the ratio in which diversity of industry tends to increase the price of commodities, relatively to any fixed standard, let us suppose that the number of men on this island be still further increased from one thousand to ten thousand. And suppose that all these ten thousand are engaged in producing wheat alone; each producing ten bushels for his own consumption, that being all he wants. And suppose they have each five dollars in gold, silver, and copper coins. What will be the price of wheat, relatively to the coins? Clearly, it will have no price at all, not even so much as one cent a bushel.

But suppose that all but one of these ten thousand men should leave wheat-growing, and engage in other industries; each one producing a different commodity from all the others. And suppose that the one who still continues wheat-growing has acquired such science, skill, and machinery, that he is now able to produce a hundred thousand bushels—that is, ten bushels each for ten thousand men—where before he only produced ten bushels for himself.

What will now be the price of wheat among these ten thousand men? Why, by the same law that has been already illustrated, it will be ninety-nine dollars and ninety-nine cents a bushel—for convenience of round numbers, say one hundred dollars a bushel—where before it had no market value at all.

And yet there is just as much wheat produced as there was before, and every man gets just as much wheat to eat as he had before, when all were producing wheat.

In this state of things, the one hundred thousand bushels of wheat, produced by one man, at a hundred dollars a bushel—which will then be its market value—are worth one hundred thousand times one hundred dollars; that is, ten million dollars. And suppose that all the other nine thousand nine hundred and ninety-nine men are each engaged in an industry as profitable as that of the remaining wheat grower. The aggregate production of the whole ten thousand men will now have a market value equal to ten thousand times ten million dollars; that is, one hundred thousand million dollars.

And if we suppose that all these commodities are to be sold* three times [15] over,—that is, once by the producer to the wholesale dealer, once by the wholesale dealer to the retailer, and once by the retailer to the consumer,—we shall see that there are to be sales equal to three hundred thousand million dollars, where before, when all were producing wheat, and nothing else, there was no sale of a cent’s worth of any thing, and no market value at all for any thing.

Now suppose that the coins, which these men had, have remained fixed at the same value they had when the men were all producing wheat. How many times over, then, must they necessarily be bought and sold, in the course of a year, in order to effect the purchase and sale of these three hundred thousand millions—or one hundred thousand millions three times over—of property that are to be exchanged?

There are ten thousand men, each having five dollars in coins; that is, fifty thousand dollars in all. Dividing three hundred thousand millions by fifty thousand, we find that the whole of these fifty thousand dollars in coins must be bought and sold six million times! Six million times annually, to effect the exchanges of the products of ten thousand men!

Dividing six million by three hundred (which we will suppose to be the number of business days in a year), we find that, on an average, their whole stock of money must be bought and sold twenty thousand times over every day. Or supposing the business day to be eight hours, the coins would all have to be bought and sold twenty-five hundred times over every hour; equal to forty-one and two-thirds times every minute.

And this happens, too, when the ten thousand men have the same amount of coin, man for man, as the one hundred and the one thousand men had, in the cases before supposed.

Thus we see that, with such a diversity and amount of production as we have supposed, the exchanges of the ten thousand men would require that their whole stock of money should be bought and sold one hundred and fifty times oftener than the whole stock of the one thousand men, and thirty thousand times oftener than the whole stock of the one hundred men.

We also see that, in the cases supposed, the ten thousand men, having three hundred thousand millions of exchanges to make, have fifteen hundred times as many as the one thousand men, who had but two hundred millions; and that they have three million times as many exchanges to make as the one hundred men. Consequently the ten thousand men require fifteen hundred times as much money as the one thousand men, and three million times as much money as the one hundred men.

IV.

According to the foregoing calculations, the ratio of increase required in the volume of money is this: Supposing the diversity and amount of production to keep pace with the increase in the number of men, and supposing their commodities to be sold but once,—that is, directly from producer to consumer,—a hundred men would require a thousand times as much money as ten men; a thousand men would require a thousand times as much money as a hundred men; ten thousand men would require a thousand times as much money as a thousand men; and so on.

[16]

But inasmuch as, in the case of a thousand men, their commodities would have to be sold twice,—that is, once by the producer to the merchant, and once by the merchant to the consumer,—the thousand men would require two thousand times as much money as the hundred men. And inasmuch as, in the case of the ten thousand men, their commodities would have to be sold three times over,—that is, once by the producer to the wholesale dealer, once by the wholesale dealer to the retailer, and once by the retailer to the consumer,—the amount of money required, instead of being either one thousand or two thousand times as much as in the case of the one thousand men (whose commodities were sold but twice), would be one and a half thousand times (as three sales are one and a half times as much as two)—that is, fifteen hundred times—as much as in the case of the one thousand men.

Stating the results of the proceding calculations in the simplest form, we find that different numbers of men, having a diversity and amount of production corresponding to their numbers, in making their exchanges with each other, require money in the following ratios, relatively to each other; namely,—

10 men require

$100

100 men require

100,000

1,000 men require

200,000,000

10,000 men require

300,000,000,000

But as the same money could be used many times over in the course of a year, they would not need an amount of money equal to the amount of their annual exchanges. If, then, we suppose the aggregate of their annual exchanges to be as above, and their whole stocks of money to be used three hundred times over in a year,—that is, once a day, calling three hundred the number of business days in a year,—we find that the stocks of money required would be as follows:

10 men would require

$ .33⅓

100 men would require

333.33⅓

1,000 men would require

666,666.33⅓

10,000 men would require

1,000,000,000

Or, to state the case in still another form, supposing their aggregate annual exchanges to be as above, and supposing their whole stocks of money to be bought and sold three hundred times over in the year, the money required, per man, would be as follows:—

10 men would require

$ .03⅓ each.

100 men would require

3.33⅓ each.

1,000 men would require

666.66 each.

10,000 men would require

100,000 each.

If any body thinks he can dispute these figures, let him attempt it. If they cannot be disputed, they settle the law of prices.

[17]

V.

The foregoing suppositions are, first, that the ten thousand men came finally to have ten thousand different kinds of commodities, where they originally had but one,—namely, wheat; secondly, that they finally came to have ten thousand times as much wealth, in quantity, as they had originally, when all were producing wheat; thirdly, that wheat, which at its first sales brought only one cent a bushel, came afterwards to sell for ten thousand cents a bushel,—although the amount of wheat produced, and the supply of wheat for each individual, were the same in the one case as in the other; fourthly, that the same effect is produced upon the prices of all the rest of the ten thousand different kinds of commodities as upon the price of wheat; and, fifthly, that the annual sales, made by the ten thousand men, amounted finally to three hundred thousand million dollars, where their first sales had amounted to but ten cents,—the amount which the first man who left wheat-growing paid for his yearly supply of ten bushels.

It is not necessary to suppose that such a diversity and amount of production will ever be realized in actual life, although that is not impossible. It is sufficient that these figures give the law that governs prices, and consequently demonstrate that a constant and enormous increase of money must be necessary to keep pace with the increase of population, wealth, and trade, if we wish to give free scope to diversity and amount of production.

Unless money should be increased so as to keep pace with this increased demand, the result would be, first, obstruction to trade; secondly, obstruction to, and discouragement of, industry; and thirdly, a corresponding obstruction to the increase of wealth.

In fact, unless the amount of money were increased, these hundred men, thousand men, and ten thousand men, instead of having a hundred, a thousand, or ten thousand different kinds of commodities, would advance very little beyond the state they were in when all were producing wheat and nothing else. Some feeble attempts at other industries might possibly be made, but their money, like the shells and wampum of savages, would aid these attempts but slightly; and the men, unless they invented some other money, would either remain absolute savages, or attain only to a very low state of barbarism.

The practical question, then, is, whether it is better that these ten thousand men should remain mere savages, scratching the earth with rude sticks and stones to produce each ten bushels of wheat, or whether it is better that they should all have the money—which stands in political economy for all the ingenuity, skill, science, machinery, and other capital which money can buy—that may be necessary to enable them to produce, in the greatest possible abundance, and of the greatest possible excellence, all the ten thousand commodities that will contribute to their happiness.

A full discussion of this subject would require much more space than can here be given to it. It may perhaps be continued at a future time, if that should be necessary. But enough has doubtless now been said to show the general law that governs prices, and consequently to show the necessity for an immense increase of money; an increase dependent upon the diversity and amount of production, and the natural laws of trade applicable thereto; such an increase as no legislation can ascertain beforehand, or consequently prescribe.

[18]

SECTION III.

It will now perhaps be said by some, in opposition to this theory of the rise in prices, that it is not sustained by the experience of mankind; that, on the contrary, the introduction of machinery makes some things wonderfully cheap, which before, relatively to other commodities, were very dear. And as an illustration of this, perhaps we shall be pointed to the present cheapness of printed matter, as compared with the price of written matter before the discovery of the present modes of printing, and the present modes of making paper; a man now being able, probably, to buy as much printed matter for one cent, as one could have bought of written matter, five hundred years ago, for five, or perhaps ten, dollars.

But the man who makes this objection, does not take into account all the facts upon which the rise in prices depends. He does not take into account the fact that the market price of any commodity, whether produced in less or greater quantity, or by less or more labor, depends only very slightly, if at all, upon the greater or less amount of labor it costs the producer, but mainly, if not wholly—as has already been explained—upon the power and disposition of other men to buy it, and give him something equally desirable in exchange for it. The producer of any particular commodity, however desirable a one it may be, can get no just compensation for it, except from those who are themselves producing something equally desirable, which they are willing to give in exchange.

If, for example—to repeat an illustration already given—a hundred thousand copies of the New York Herald were printed in a country containing only a hundred thousand men, who desired it, and these men were producing nothing that they could spare, or give in exchange, the Herald would plainly bring no price at all, however much these hundred thousand men might desire it. But if these hundred thousand men should become producers of such commodities as they could spare, and give in exchange for the Herald, the market price of the Herald would rise just in proportion to the value of these other commodities. And if these hundred thousand men should finally, through the aid of invention, science, skill, machinery, and capital, become producers of a [19] hundred thousand different commodities—each man producing a different commodity from all the others—and each man should be willing to give, in exchange for the Herald, such a portion of his own particular product as would be as desirable for the producer of the Herald, as a copy of the Herald was to him, the Herald, which before brought no price at all, will now obtain for its producer a hundred thousand different commodities, each of which will be as valuable to him, as a copy of the Herald will be to each of these hundred thousand purchasers. And the price of the Herald, relatively to any fixed standard of value, will have risen—in accordance with the “Law of Prices” already given—from nothing, to a price corresponding to the value of these hundred thousand different commodities that will be given in exchange for it.

The reason why printed matter has become so cheap, in comparison with many or most other commodities, is not at all that the knowledge conveyed by it has become less desirable or valuable than it was before the art of printing was discovered—for both the desire for knowledge, and the value of the knowledge conveyed, have been constantly increasing ever since that time—but it is because invention and production in paper-making and printing have altogether outrun invention and production in most other directions; and mankind are consequently unable, except in comparatively few cases, to give real equivalents for printed matter. Printed matter, therefore, has now to be sold for only what the producers of other commodities are able to pay. But if invention and production, in other directions than paper-making and printing, should go on increasing to such a degree that all other men will be able to offer, in exchange for printed matter, commodities as desirable as the printed matter itself, the prices of printed matter will then rise to their true level.

And what is true of printed matter, is equally true of certain other commodities, in whose production science and invention have outrun the science and invention that are employed in ordinary pursuits. These commodities now command no equitable price in the market, solely because mankind in general, for the want of invention, science, skill, machinery, and capital, are [20] unable to produce commodities of equal value, to be given in exchange.

From all this, it will be seen that the market value of each man’s product depends, not at all, or at best very slightly, upon the greater or less labor it costs him to produce it—for when all labor is performed by machinery, and men are required only to tend the machinery, it can hardly be said that anything costs human labor; but it depends mainly, if not wholly, upon the number of other men who can buy it, and give him something desirable in exchange for it.

At present no such diversity or amount of production exists, as we shall sometime see; and, consequently, prices have never risen to any such height as they sometime will. But as surely as the diversity and amount of production go on increasing, just so surely will the rise of prices, relatively to any fixed standard of value, also go on increasing in the ratio, and according to the rule, that have now been explained. And the amount of money required for the exchanges of property will of course go on increasing in like ratio. And any attempt to keep down prices, by limiting the amount of money, will only result in suppressing invention, science, skill, machinery, and production, and in the inequitable distribution of the little wealth that is permitted to be produced.

But this theory will be more fully confirmed in subsequent papers.

SECTION IV.

It will now be seen how clearly—as a general rule—it is the interest of all that each and every individual shall have all the capital—that is, all the money—that may be necessary to enable them to produce the greatest variety and amount of wealth; to make the most discoveries in science, the most inventions in implements and machinery; to produce the greatest number of new commodities for direct consumption; and also to enable all those who are neither discoverers nor inventors, to engage in the greatest variety of industries—that is, in the production of all new commodities, as fast as they shall be invented.

[21]

We need have no fear that machinery will ever prove an enemy of human labor, if we only have money enough to enable a sufficient number of persons to go into the production of new commodities as fast as they shall be invented. Men driven out of one employment, by machinery, will then be enabled to go into another more lucrative; because every new industry raises the value of all others, and, as a general rule, takes its place on a level with all others. The lack of money to enable men to go into new industries, is the only reason why—at least in recent times—machinery has been regarded as the enemy of the laborer.

The greater the variety of commodities produced, the less the competition in the production of each, and the higher the prices of all; for the price of each rises just in proportion to the number of others for which it can be exchanged, and the amounts of each of these others for which it can be exchanged.

As a general rule, everybody who engages in the production of a new commodity relieves somebody of a competitor, and, to the extent of his own production, becomes a purchaser of the products of others.

Especially ought we to realize how important it is that every facility and inducement that is reasonably possible—both in money and in legal protection—be afforded to all discoveries in science, and all mechanical inventions. These discoveries and inventions are the great, the permanent wealth of the world. The material wealth which we accumulate by means of them, is mostly temporary, and much of it ephemeral. It is quickly consumed, or goes quickly to decay. It could do almost nothing for mankind, were it not for the scientific discoveries and mechanical inventions by which it can be constantly reproduced to meet our daily wants. These discoveries and inventions are, also, not solely the wealth of the particular times or localities in which they are made; but are to become the property of the whole world, and of all future time. It is true that many, or most, of them are being quickly superseded by others that do the same work better; but the inventions and discoveries of each year, or generation, prepare the way for those of the next; and thus, by this succession of inventions and discoveries, the whole world is to be enriched [22] through all the ages. And we should not grudge the wealth which a perpetual property in them would give to their authors; for, at best, it will probably, on an average, be not more than one per centum of the wealth created by means of them. And if this one per centum should prove large, for the time being, in proportion to the earnings of other men, it will only stimulate the production of other discoveries and inventions, of which the world will get the benefit, at a like cost of one per centum of the wealth produced by means of them.

Short-sighted men, oppressed by poverty and toil, object to an inventor’s having such a property in the products of his labor as other men have in the products of theirs; because, say they, it would be wrong that he should receive so much for his labor, when we receive so little for ours. But such men should understand that a man’s right to the products of his labor does not depend at all upon the value of those products. Whether more or less valuable, they are equally his, solely because he produced them. Labor is worth nothing of itself. Its value depends wholly upon what it produces. If it produces much, it is worth much; if it produces little, it is worth little; if it produces nothing, it is worth nothing. Nearly all the world over, the great body of the people are borne down by the heaviest toil; yet, for the want of science, implements, machinery, and capital, they produce very little; and that little brings them either a very small price, or absolutely nothing, in exchange, because so few have any thing that they can give in exchange. And this fate, that has so crushed, impoverished, and enslaved mankind for thousands of years in the past, will assuredly continue to crush, impoverish, and enslave them for thousands of years in the future, unless, by means of science, implements, machinery, and capital, they make their industry more productive than it heretofore has been. These men should also understand that the inventor has always been ready and eager to relieve them of their poverty and toil, by giving them machinery that should do their work for them; and do for them a thousand times more work than they can do for themselves; and that the only reasons why he has not done so, hundreds and thousands of years ago, have been, first, that he has [23] been without the necessary means for producing his inventions, and has been denied all just compensation—until quite recently all compensation—for them; and, secondly, that the mass of men have also been without the necessary means—that is, the necessary money—for utilizing his inventions after he has produced them. Whenever the right of the inventor to the products of his labor shall be acknowledged, and the people shall be permitted to have all the money that shall be necessary to enable them to utilize his inventions, all their present complaints of poverty and toil will rapidly disappear. It is, therefore, not only gross injustice, but the worst of policies, to deny to scientists and inventors their right of property in their discoveries and inventions.

It is manifest that the mass of mankind can lift themselves out of their present poverty and servitude only through the aid of science, invention, machinery and money. It is manifest, too, that we can set no limits either to the variety or amount of wealth that mankind are capable of producing, if only full scope be given to science, invention, machinery, and money. It is also obvious that the greater the diversity and amount of production, the more equally and equitably will wealth be distributed; since every separate industry gives a support to a separate body of producers; and when all industries are free, the tendency of all—especially of all such as must occupy the great body of the people—is to come to one common standard of compensation.

Endnotes

*

It would be absurd to expect any rapid increase or equitable distribution of wealth, unless we abjure forever the theory, on which our own government and so many others now act, viz., that it is wholly unnecessary that money should be an equivalent of the property that is to be bought with it; that the money of a country should be restricted by law to a very small amount; that the right to issue this amount should be granted as a monopoly to a very few persons; that these few should thus be licensed to control all industry and traffic; to fix the prices of all property and labor; and thus to extort, in exchange for their money, many times more of all other men’s property and labor than the money is really and truly worth. Such a monopoly has obviously no tendency or purpose but to obstruct production and exchange, and enable the few to secure to themselves the wealth produced by the many.

*

It was first published in the Radical Review for August, 1877; and afterward in a pamphlet.

*

All but ten millions—a ten thousandth part of the whole—would have to be sold, since each man would retain for his own consumption only a ten thousandth part of what he produced; namely, one thousand dollars’ worth.

T.32 No. 1. Revolution: The only Remedy for the Oppressed Classes of Ireland, England, and Other Parts of the British Empire (1880).↩

Title

[32.] No. 1. Revolution: The only Remedy for the Oppressed Classes of Ireland, England, and Other Parts of the British Empire. A Reply to “Dunraven” (Second Edition, n.p., 1880).

- also online Shorter Works, vol. 2: </titles/2292#lf1531-02_head_049>

Text

A REPLY TO “DUNRAVEN.”

No. 1.

REVOLUTION:

THE ONLY REMEDY FOR THE OPPRESSED CLASSES OF IRELAND, ENGLAND, AND OTHER PARTS OF THE BRITISH EMPIRE.

A REPLY TO “DUNRAVEN.”

(SECOND EDITION.)

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Dunraven

Dunraven

To the Man in Ireland, Whose Name is Believed to be Quinn, but Who Signs Himself “Dunraven.”

Sir,—

Your letter of Jan. 1, 1880, addressed to the Editor of the New York Herald, and published in the Herald of Jan. 7, deserves an answer, for the reason that it undoubtedly expresses not only your own sentiments, but also those of the class to which you belong. It virtually announces, and was evidently intended to announce, to the Irish people, both in Ireland and America, and to all other persons interested, that the landlords of Ireland,—backed, as you claim that they are, by the whole power of “the British Empire”—are determined to drive what you consider the surplus population of Ireland out of the country by starvation. You virtually say that all this feeding the starving Irish in their own country, is merely money and mercy thrown away; that as nothing but starvation will ever induce them to go, the sooner they are left to see that they have no other alternative, the better it will be for them, and for everybody else.

If you had, in so many words, threatened to drive them out by the bayonet, you could hardly have been more explicit. This makes it necessary that not only the Irish people, but that everybody else who feels any interest in such a matter, should inquire by what right you propose to do all this; and also whether you really have the physical power necessary to do it.

The following address to them, and this letter to yourself, are intended to show not only that you have neither the right, nor the power, to drive them out, but that they, and others similarly situuated, have both the right and the power to drive you, and all [4] your abettors, out of both Ireland and England; and also, if need be, from off the face of the earth.

If you, and others like you, in England and Ireland, are prepared to meet this issue, we think that other men—men who believe that human beings have rights in this world, and that such a government as that of “the British Empire” has no rights at all—will, at no distant day, be ready, in sufficient numbers, to try conclusions with you.

The whole force of your letter, as a defence of Irish landlords, rests upon the assumption that they are the real and true owners of the lands they now hold. But this assumption is a false one. These lands, largely or mostly, were originally taken by the sword, and have ever since been held by the sword. Neither the original robbers, nor any subsequent holders, have ever had any other than a robber’s title to them. And robbery gives no better title to lands than it does to any other property.

No lapse of time can cure this defect in the original title. Every successive holder not only indorses all the robberies of all his predecessors, but he commits a new one himself by withholding the lands, either from the original and true owners, or from those who, but for those robberies, would have been their legitimate heirs and assigns.

And what is true of the lands in Ireland is equally true of the lands in England. The lands in England, largely or mostly, were originally taken by the sword, and have ever since been held by the sword; and the present holders have no better titles to them than simple, naked robbery has given them.

If the present holders, or any of their predecessors, in either Ireland or England, have ever purchased any of these lands, they have either purchased only a robber’s title to them, or they have purchased them only with the profits or proceeds of previous robberies. They have, therefore, never had, and have not now, any real titles to them.

For these reasons, the present holders of lands generally, in either England or Ireland—whether they hold them by inheritance [5] or purchase—have no whit better title to them, than the highwayman has to the purse he has taken from the traveller, or than the pirate has to the ships and cargoes he has captured on the ocean.

It cannot be supposed that you are so stupid as to be ignorant of all this; and you seem to be conscious of it—and also of the fact that these lands are to be holden, if at all, only by the sword, in the future, as they have been in the past—when you say that—

“The liability [of the actual cultivator] to pay rent can be evaded only by overturning the whole social structure of the United Kingdom.”

Your opinion on this point is doubtless correct. But what does “the whole social structure of the United Kingdom” amount to? To this only: That the original robbers and holders of these lands (in both England and Ireland), with such accomplices as they have, from time to time, induced to join them, have now, for many hundreds of years, constituted a conspiracy—that is, have organized themselves into what they call a government—for the purpose of sustaining each other in the possession of all the lands they have seized; and also for the purpose of plundering and enslaving all the descendants of those from whom the lands were originally taken; and for the still further purpose of plundering and enslaving, as far as possible, all other peoples in other parts of the world. This conspiracy has existed in an organized form,—that is, in the form of both State and Church,—for many hundreds of years. And it is this conspiracy, and nothing else, which you attempt to dignify by the name of “the whole social structure of the United Kingdom.”

Do you really think that an “overturning” of such a “whole social structure” as this would be any great calamity, either to the “United Kingdom,” or to the world at large? Would it not rather be the opening of a day of freedom for more than two hundred millions of enslaved people, “British subjects,” so-called; [6] to say nothing of its influence on other “social structures,” of like character, in other parts of the world?

But you evidently consider such an “overturning” impracticable, for you say,—

“It is not likely that the Irish, in and out of Ireland, will combine to wage war upon the British Empire; neither is it very probable that they would be successful.”

By this you mean that this confederacy of robbers and tyrants—small in numbers, but constituting the only real ruling force of what you call “the British Empire”—is too well organized, too compact, too rich, and too powerful, and has too much at stake, to be successfully resisted, or, as you say, “overturned.”

But in this you may be mistaken. Less than a century ago, “the whole social structure” of France was “overturned,” notwithstanding all, or nearly all, the other “social structures” of Europe combined to sustain it. Do you imagine that the other “social structures” of Europe will ever combine to sustain “the whole social structure of the United Kingdom,” as they once combined to sustain that of France? You know that nothing of that kind will ever take place. You know that, henceforth, each of “the social structures” of Europe must take care of itself as best it may; and that already most of them are tottering to their fall. You know that all European combinations, in the future, are to be combinations to “overturn” existing “social structures,” and not to sustain them.

How, then, do you think that that confederacy of robbers and villains, whom you call, and who imagine themselves to be, “the British Empire,” will fare, when the trial comes? And how far off do you imagine that trial to be?

Do not deceive yourselves in this matter. You are really few in number, and easily distinguished from the great body of those whom you and your predecessors have plundered and enslaved. The very wealth in which you so pride yourselves, and on which you rely as a means of safety, is really an element of weakness. It is not yours. It is all stolen property. It consists only of the [7] spoils that have been accumulated through centuries of robbery and extortion. If those, and the descendants of those, from whom all this wealth has been taken, shall combine to take it from you, it will be only an act of just and lawful reprisal and retribution. And it now offers itself to them as the richest prize, of this kind, that was ever offered to men on earth. Do you not think they will take it?

The fact that the direct descendants of the original holders of these lands cannot now be individually traced, and reinstated in the property of their ancestors, cannot screen the present holders from their just liability; since the original robbery of the lands, and the entailing them in the families of the original robbers, have not only deprived the direct descendants of the original holders of their rights, but have also deprived all other persons of their natural rights to buy these lands. These other persons, therefore, as well as the direct descendants of the original holders, have a wrong to be redressed. And these two classes, as they cannot now be distinguished from each other, should make common cause.

In addition to all this, these conspirators have, as a government, oppressed, robbed, enslaved, and made war upon, everybody, indiscriminately—in England, Ireland, and throughout what you call “the British Empire”—whom they could oppress, plunder, or subdue. In this way, then, as well as through the original robberies of the lands, they have incurred a liability to everybody, who has, in any way, suffered at their hands. Whenever, then, the day of settlement comes, there will be some two hundred and fifty millions of people, who will be entitled to satisfaction for the wrongs you have inflicted upon them.

And do not imagine that the present landholders alone are to be finally held liable. All who have been voluntary accomplices with them—and all who have voluntarily aided in upholding the British government, have been accomplices with them—have justly incurred the same penalty as the landholders themselves. Among these accomplices have been your great manufacturers, merchants, bankers, ship-owners, money-lenders (lenders of money to the government)—everybody, in fact, high or low, who has voluntarily been part and parcel of the British government—have been accomplices in the thousand crimes by which the people at large, [8] throughout the Empire, have been plundered and enslaved. And having been such accomplices, their property may as rightfully be seized for purposes of reparation, as may the lands of the landholders themselves; for every member of a conspiracy shares in the guilt of all the others; and is equally liable with them to be coerced into making restitution and compensation.

Sir, From the ancient time, criminals of a certain class have been designated as hostes humani generis: enemies of the human race. They received this designation because their crimes were committed, not from any special malice towards particular victims, but solely from motives of plunder; and they were wholly indifferent as to the name or nation of the persons to be plundered. They as willingly robbed, and, if need were, murdered, the people of any one country, as of any other. It being their practice to plunder, to the extent of their ability, all mankind indiscriminately, they naturally and justly came to be regarded as enemies of the whole human race. And from this fact it necessarily followed that they might justly and rightfully be killed, whenever and wherever they could be found, and by whomsoever could kill them.

This designation—enemies of the human race—has more generally been applied to pirates; to men who committed their crimes upon the sea. But there have been other hostes humani generis; men devoted to plunder, who committed their crimes upon the land; and who were equally indifferent, with pirates on the sea, as to the persons on whom their crimes were committed. The ruling classes in England, from the time the Anglo-Saxons first came there, have been hostes humani generis: enemies of the human race. They have had only one motive, viz.: plunder. And so long as this motive was gratified, they have cared not whom they plundered, enslaved, or murdered.

The Anglo-Saxons were robbers and pirates in their own country, two thousand years ago; robbers on land, and pirates at sea. Such was their sole business. The men performed no useful labor. Their useful labor was all performed by their women and their slaves. They themselves, as history tells us, scorned to labor for anything they could take by force. They came into England on their usual errand. They seized the country by military power, [9] and reduced the native Britons to slavery. And they have maintained this character ever since. The Normans were equally robbers. The real government of England, the actual ruling power, for more than a thousand years, has been a mere band of robbers; a mere confederacy of villains. And it is nothing else to-day. They have not only plundered and enslaved the great body of the people of England and Ireland, but, as far as possible, the peoples of all other parts of the globe. They have their chains to-day upon more than two hundred millions of people; and their whole purpose is to extort from them everything that oppression, in every form, is capable of extorting.

Do you imagine that when this band of villains—these enemies of the human race—come to receive their dues, at the hands of two hundred and fifty millions of their victims, justice or mercy will have anything to offer in their behalf?

Sir, To the plundered and starving population of Ireland, you say, in effect, and nearly in these words:

“We, the landlords, have no use for you; we have nothing for you to do; we will not feed you; and you cannot feed yourselves. Why, then, do you stay here? Your only salvation is in emigration; and the sooner you go, the better it will be for yourselves, and for us.”

And you conclude your letter with these words, which are among the vilest that were ever written by human hands:

“Why such people [as those Irish, who dream that they can ever again become the owners of Ireland] are permitted to exist, is a marvel. It is best to try and be philosophical, and reflect that the ways of the Lord are inscrutable, and past finding out; and that possibly they may fulfil some use in the economy of nature so obscure as not to be discernible to mortal eye.”

All this is equivalent to your saying:—

“We have taken from you your country, and all your means of living in it. You have nothing more that we can take; and we therefore wish to have nothing more to do with you. By remaining here, you give us no end of trouble, and bring upon us no end of disgrace. You accuse us of starving you to death, and yet you stay with us. If you do not like us, why will you not go, and leave us alone? We want nothing of you; we hate the very sight of you, and wish to get rid of you. It is “inscrutable” to us why the Almighty “permits people to exist,” who are of no use [10] to us, whose presence is offensive to us, who are forever accusing us of having robbed them of everything they had, and who nevertheless persist in staying with us against our will.”

Sir, It is to be hoped that “the ways of the Lord” may soon be made more intelligible to you; that you may be made to know “why such people” as the Irish “are permitted to exist”; what “use in the economy of nature” they “fulfil”; and even why they are permitted to make you so uncomfortable. Perhaps you may come to know that this world and all its inhabitants were not created with a sole view to your pleasure; that for some good reason, in which neither your ease, your pride, your avarice, nor your ambition was consulted, the Almighty saw fit to create other men, and give them rights equal to your own; that their happiness is quite as important as yours; and that these men, whom you now trample upon with such scorn, may yet be strong enough to teach you, in a rough way, such lessons of humility and justice, as have sometimes been taught to tyrants before, and such as will be very bitter to a man like you. You may, however, have this one consolation—that should you ever have all this knowledge forced upon you, it will assuredly make you a much wiser and better man than you are now. And this knowledge, that will be so beneficial to yourself, will be equally useful to your associates, the queens, princes, dukes, earls, and the like, who now feel and reason as you do.

It is also to be hoped that the time is not distant, when somebody will be glad to emigrate from both England and Ireland. But who are to be the emigrants? This is the vital question. You will remember that, in similar circumstances, in a neighboring nation, the class who, one day, ruled all France, thought they owned all France, and felt that they, and they alone, were France, the next day found it convenient to emigrate; leaving everything behind them, to become the property of those, whom, up to that time, they had trampled under foot. May we not see the same thing in England and Ireland?

Sir, the plundered people of England and Ireland need neither emigration, legislation, mitigation, nor modification. They need, and if they do their duty to themselves and to you, they will have,

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REVOLUTION, RETRIBUTION, RESTITUTION, AND, AS FAR AS POSSIBLE, COMPENSATION.

To All the Oppressed Classes in England, Ireland, and Throughout the British Empire.

The foregoing letter, to the so-called Earl of Dunraven, attempts to show you your true relations to the ruling classes of the British Empire; and also the true and only remedy for the wrongs which their and stors practiced upon your ancestors, and which they themselves are now practicing upon you. Do not imagine that the Parliaments and Courts of oppressors will ever right the wrongs of the oppressed. They exist for no such purpose. Such a thing has never happened, and never will. Take the redress of your own wrongs into your own hands, as you are abundantly able to do, if you are only united, determined, and have clear ideas of your rights, and of what is needful to secure them. Your numbers are so great, in comparison with those of your oppressors, as to put their lives and their property wholly in your power, if you so will it. They have no thought of doing you justice. They have no purpose but to keep so many of you in poverty and servitude as they can make serviceable to themselves, and drive the rest of you out of the country by starvation. And they will do this, as they have heretofore done it, unless you yourselves put an end to their power. Wipe out, then, these feudal robbers—the whole race of kings, and queens, and nobles, and all their accomplices in every grade of life, and take possession of all the spoils which they and their predecessors have wrung from you and your ancestors. Put an end to their Parliaments and Courts. Blot out forever their statute books. They contain little or nothing else than the records of their villainies. Free England and Ireland, and thus all the rest of the empire, of the tyrants and robbers that are plundering, enslaving, and crushing, and starving you.

T.33 Natural Law; or the Science of Justice (1882).↩

Title

[33.] Natural Law; or the Science of Justice: A Treatise on Natural Law, Natural Justice, Natural Rights, Natural Liberty, and Natural Society; showing that all Legislation whatsoever is an Absurdity, a Usurpation, and a Crime. Part First. (Boston: A. Williams & Co., 1882).

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CONTENTS OF PART FIRST.

- CHAPTER I.—The Science of Justice, 5

- CHAPTER II.—The Science of Justice [Continued]. 11

- CHAPTER III.—Natural Law Contrasted with Legislation, 16

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NATURAL LAW.

PART FIRST.

CHAPTER I.: THE SCIENCE OF JUSTICE.

Section I.

The science of mine and thine—the science of justice—is the science of all human rights; of all a man’s rights of person and property; of all his rights to life, liberty, and the pursuit of happiness.

It is the science which alone can tell any man what he can, and cannot, do; what he can, and cannot, have; what he can, and cannot, say, without infringing the rights of any other person.

It is the science of peace; and the only science of peace; since it is the science which alone can tell us on what conditions mankind can live in peace, or ought to live in peace, with each other.

These conditions are simply these: viz., first, that each man shall do, towards every other, all that justice requires him to do; as, for example, that he shall pay his debts, that he shall return borrowed or stolen property to its owner, and that he shall make reparation for any injury he may have done to the person or property of another.

The second condition is, that each man shall abstain from doing, to another, anything which justice forbids him to do; as, [6] for example, that he shall abstain from committing theft, robbery arson, murder, or any other crime against the person or property of another.

So long as these conditions are fulfilled, men are at peace, and ought to remain at peace, with each other. But when either of these conditions is violated, men are at war. And they must necessarily remain at war until justice is re-established.

Through all time, so far as history informs us, wherever mankind have attempted to live in peace with each other, both the natural instincts, and the collective wisdom of the human race, have acknowledged and prescribed, as an indispensable condition, obedience to this one only universal obligation: viz., that each should live honestly towards every other.

The ancient maxim makes the sum of a man’s legal duty to his fellow men to be simply this: “To live honestly, to hurt no one, to give to every one his due.”

This entire maxim is really expressed in the single words, to live honestly; since to live honestly is to hurt no one, and give to every one his due.

Section II.

Man, no doubt, owes many other moral duties to his fellow men; such as to feed the hungry, clothe the naked, shelter the homeless, care for the sick, protect the defenceless, assist the weak, and enlighten the ignorant. But these are simply moral duties, of which each man must be his own judge, in each particular case, as to whether, and how, and how far, he can, or will, perform them. But of his legal duty—that is, of his duty to live honestly towards his fellow men—his fellow men not only may judge, but, for their own protection, must judge. And, if need be, they may rightfully compel him to perform it. They may do this, acting singly, or in concert. They may do it on the instant, as the necessity arises, or deliberately and systematically, if they prefer to do so, and the exigency will admit of it.

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Section III.

Although it is the right of anybody and everybody—of any one man, or set of men, no less than another—to repel injustice, and compel justice, for themselves, and for all who may be wronged, yet to avoid the errors that are liable to result from haste and passion, and that everybody, who desires it, may rest secure in the assurance of protection, without a resort to force, it is evidently desirable that men should associate, so far as they freely and voluntarily can do so, for the maintenance of justice among themselves, and for mutual protection against other wrongdoers. It is also in the highest degree desirable that they should agree upon some plan or system of judicial proceedings, which, in the trial of causes, should secure caution, deliberation, thorough investigation, and, as far as possible, freedom from every influence but the simple desire to do justice.

Yet such associations can be rightful and desirable only in so far as they are purely voluntary. No man can rightfully be coerced into joining one, or supporting one, against his will. His own interest, his own judgment, and his own conscience alone must determine whether he will join this association, or that; or whether he will join any. If he chooses to depend, for the protection of his own rights, solely upon himself, and upon such voluntary assistance as other persons may freely offer to him when the necessity for it arises, he has a perfect right to do so. And this course would be a reasonably safe one for him to follow, so long as he himself should manifest the ordinary readiness of mankind, in like cases, to go to the assistance and defence of injured persons; and should also himself “live honestly, hurt no one, and give to every one his due.” For such a man is reasonably sure of always having friends and defenders enough in case of need, whether he shall have joined any association, or not.

Certainly no man can rightfully be required to join, or support, an association whose protection he does not desire. Nor can any man be reasonably or rightfully expected to join, or support, any association whose plans, or method of proceeding, he does not [8] approve, as likely to accomplish its professed purpose of maintaining justice, and at the same time itself avoid doing injustice. To join, or support, one that would, in his opinion, be inefficient, would be absurd. To join or support one that, in his opinion, would itself do injustice, would be criminal. He must, therefore, be left at the same liberty to join, or not to join, an association for this purpose, as for any other, according as his own interest, discretion, or conscience shall dictate.

An association for mutual protection against injustice is like an association for mutual protection against fire or shipwreck. And there is no more right or reason in compelling any man to join or support one of these associations, against his will, his judgment, or his conscience, than there is in compelling him to join or support any other, whose benefits (if it offer any) he does not want, or whose purposes or methods he does not approve.

Section IV.

No objection can be made to these voluntary associations upon the ground that they would lack that knowledge of justice, as a science, which would be necessary to enable them to maintain justice, and themselves avoid doing injustice. Honesty, justice, natural law, is usually a very plain and simple matter, easily understood by common minds. Those who desire to know what it is, in any particular case, seldom have to go far to find it. It is true, it must be learned, like any other science. But it is also true that it is very easily learned. Although as illimitable in its applications as the infinite relations and dealings of men with each other, it is, nevertheless, made up of a few simple elementary principles, of the truth and justice of which every ordinary mind has an almost intuitive perception. And almost all men have the same perceptions of what constitutes justice, or of what justice requires, when they understand alike the facts from which their inferences are to be drawn.

Men living in contact with each other, and having intercourse together, cannot avoid learning natural law, to a very great extent, [9] even if they would. The dealings of men with men, their separate possessions and their individual wants, and the disposition of every man to demand, and insist upon, whatever he believes to be his due, and to resent and resist all invasions of what he believes to be his rights, are continually forcing upon their minds the questions, Is this act just? or is it unjust? Is this thing mine? or is it his? And these are questions of natural law; questions which, in regard to the great mass of cases, are answered alike by the human mind everywhere.*

Children learn the fundamental principles of natural law at a very early age. Thus they very early understand that one child must not, without just cause, strike, or otherwise hurt, another; that one child must not assume any arbitrary control or domination over another; that one child must not, either by force, deceit, or stealth, obtain possession of anything that belongs to another; that if one child commits any of these wrongs against another, it is not only the right of the injured child to resist, and, if need be, punish the wrongdoer, and compel him to make reparation, but that it is also the right, and the moral duty, of all other children, and all other persons, to assist the injured party in defending his rights, and redressing his wrongs. These are fundamental principles of natural law, which govern the most important transactions of man with man. Yet children learn them earlier than they learn that three and three are six, or five and five ten. Their childish plays, even, could not be carried on without a constant regard to them; and it is equally impossible for persons of any age to live together in peace on any other conditions.

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It would be no extravagance to say that, in most cases, if not in all, mankind at large, young and old, learn this natural law long before they have learned the meanings of the words by which we describe it. In truth, it would be impossible to make them understand the real meanings of the words, if they did not first understand the nature of the thing itself. To make them under stand the meanings of the words justice and injustice, before knowing the nature of the things themselves, would be as impossible as it would be to make them understand the meanings of the words heat and cold, wet and dry, light and darkness, white and black, one and two, before knowing the nature of the things themselves. Men necessarily must know sentiments and ideas, no less than material things, before they can know the meanings of the words by which we describe them.

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CHAPTER II.: THE SCIENCE OF JUSTICE (Continued)

Section I.

If justice be not a natural principle, it is no principle at all. If it be not a natural principle, there is no such thing as justice. If it be not a natural principle, all that men have ever said or written about it, from time immemorial, has been said and written about that which had no existence. If it be not a natural principle, all the appeals for justice that have ever been heard, and all the struggles for justice that have ever been witnessed, have been appeals and struggles for a mere fantasy, a vagary of the imagination, and not for a reality.

If justice be not a natural principle, then there is no such thing as injustice; and all the crimes of which the world has been the scene, have been no crimes at all; but only simple events, like the falling of the rain, or the setting of the sun; events of which the victims had no more reason to complain than they had to complain of the running of the streams, or the growth of vegetation.

If justice be not a natural principle, governments (so-called) have no more right or reason to take cognizance of it, or to pretend or profess to take cognizance of it, than they have to take cognizance, or to pretend or profess to take cognizance, of any other nonentity; and all their professions of establishing justice, or of maintaining justice, or of regarding justice, are simply the mere gibberish of fools, or the frauds of imposters.

But if justice be a natural principle, then it is necessarily an immutable one; and can no more be changed—by any power inferior to that which established it—than can the law of gravitation, the laws of light, the principles of mathematics, or any other natural law or principle whatever; and all attempts or assumptions, on the part of any man or body of men—whether calling themselves governments, or by any other name—to set up their [12] own commands, wills, pleasure, or discretion, in the place of justice, as a rule of conduct for any human being, are as much an absurdity, an usurpation, and a tyranny, as would be their attempts to set up their own commands, wills, pleasure, or discretion in the place of any and all the physical, mental, and moral laws of the universe.

Section II.

If there be any such principle as justice, it is, of necessity, a natural principle; and, as such, it is a matter of science, to be learned and applied like any other science. And to talk of either adding to, or taking from, it, by legislation, is just as false, absurd, and ridiculous as it would be to talk of adding to, or taking from, mathematics, chemistry, or any other science, by legislation.

Section III.

If there be in nature such a principle as justice, nothing can be added to, or taken from, its supreme authority by all the legislation of which the entire human race united are capable. And all the attempts of the human race, or of any portion of it, to add to, or take from, the supreme authority of justice, in any case whatever, is of no more obligation upon any single human being than is the idle wind.

Section IV.

If there be such a principle as justice, or natural law, it is the principle, or law, that tells us what rights were given to every human being at his birth; what rights are, therefore, inherent in him as a human being, necessarily remain with him during life; and, however capable of being trampled upon, are incapable of being blotted out, extinguished, annihilated, or separated or eliminated from his nature as a human being, or deprived of their inherent authority or obligation.

[13]

On the other hand, if there be no such principle as justice, or natural law, then every human being came into the world utterly destitute of rights; and coming into the world destitute of rights, he must necessarily forever remain so. For if no one brings any rights with him into the world, clearly no one can ever have any rights of his own, or give any to another. And the consequence would be that mankind could never have any rights; and for them to talk of any such things as their rights, would be to talk of things that never had, never will have, and never can have an existence.

Section V.

If there be such a natural principle as justice, it is necessarily the highest, and consequently the only and universal, law for all those matters to which it is naturally applicable. And, consequently, all human legislation is simply and always an assumption of authority and dominion, where no right of authority or dominion exists. It is, therefore, simply and always an intrusion, an absurdity, an usurpation, and a crime.

On the other hand, if there be no such natural principle as justice, there can be no such thing as injustice. If there be no such natural principle as honesty, there can be no such thing as dishonesty; and no possible act of either force or fraud, committed by one man against the person or property of another, can be said to be unjust or dishonest; or be complained of, or prohibited, or punished as such. In short, if there be no such principle as justice, there can be no such acts as crimes; and all the professions of governments, so called, that they exist, either in whole or in part, for the punishment or prevention of crimes, are professions that they exist for the punishment or prevention of what never existed, nor ever can exist. Such professions are therefore confessions that, so far as crimes are concerned, governments have no occasion to exist; that there is nothing for them to do, and that there is nothing that they can do. They are confessions that the governments exist for the punishment and prevention of acts that are, in their nature, simple impossibilities.

[14]

Section VI.

If there be in nature such a principle as justice, such a principle as honesty, such principles as we describe by the words mine and thine, such principles as men’s natural rights of person and property, then we have an immutable and universal law; a law that we can learn, as we learn any other science; a law that is paramount to, and excludes, every thing that conflicts with it; a law that tells us what is just and what is unjust, what is honest and what is dishonest, what things are mine and what things are thine, what are my rights of person and property and what are your rights of person and property, and where is the boundary between each and all of my rights of person and property and each and all of your rights of person and property. And this law is the paramount law, and the same law, over all the world, at all times, and for all peoples; and will be the same paramount and only law, at all times, and for all peoples, so long as man shall live upon the earth.

But if, on the other hand, there be in nature no such principle as justice, no such principle as honesty, no such principle as men’s natural rights of person or property, then all such words as justice and injustice, honesty and dishonesty, all such words as mine and thine, all words that signify that one thing is one man’s property and that another thing is another man’s property, all words that are used to describe men’s natural rights of person or property, all such words as are used to describe injuries and crimes, should be struck out of all human languages as having no meanings; and it should be declared, at once and forever, that the greatest force and the greatest frauds, for the time being, are the supreme and only laws for governing the relations of men with each other; and that, from henceforth, all persons and combinations of persons—those that call themselves governments, as well as all others—are to be left free to practice upon each other all the force, and all the fraud, of which they are capable.

[15]

Section VII.

If there be no such science as justice, there can be no science of government; and all the rapacity and violence, by which, in all ages and nations, a few confederated villains have obtained the mastery over the rest of mankind, reduced them to poverty and slavery, and established what they called governments to keep them in subjection, have been as legitimate examples of government as any that the world is ever to see.

Section VIII.

If there be in nature such a principle as justice, it is necessarily the only political principle there ever was, or ever will be. All the other so-called political principles, which men are in the habit of inventing, are not principles at all. They are either the mere conceits of simpletons, who imagine they have discovered something better than truth, and justice, and universal law; or they are mere devices and pretences, to which selfish and knavish men resort as means to get fame, and power, and money.

[16]

CHAPTER III.: NATURAL LAW CONTRASTED WITH LEGISLATION.

Section I.

Natural law, natural justice, being a principle that is naturally applicable and adequate to the rightful settlement of every possible controversy that can arise among men; being, too, the only standard by which any controversy whatever, between man and man, can be rightfully settled; being a principle whose protection every man demands for himself, whether he is willing to accord it to others, or not; being also an immutable principle, one that is always and everywhere the same, in all ages and nations; being self-evidently necessary in all times and places; being so entirely impartial and equitable towards all; so indispensable to the peace of mankind everywhere; so vital to the safety and welfare of every human being; being, too, so easily learned, so generally known, and so easily maintained by such voluntary associations as all honest men can readily and rightfully form for that purpose—being such a principle as this, these questions arise, viz.: Why is it that it does not universally, or well nigh universally, prevail? Why is it that it has not, ages ago, been established throughout the world as the one only law that any man, or all men, could rightfully be compelled to obey? Why is it that any human being ever conceived that anything so self-evidently superfluous, false, absurd, and atrocious as all legislation necessarily must be, could be of any use to mankind, or have any place in human affairs?

Section II.

The answer is, that through all historic times, wherever any people have advanced beyond the savage state, and have learned to increase their means of subsistence by the cultivation of the soil, a greater or less number of them have associated and organized themselves as robbers, to plunder and enslave all others, [17] who had either accumulated any property that could be seized, or had shown, by their labor, that they could be made to contribute to the support or pleasure of those who should enslave them.

These bands of robbers, small in number at first, have increased their power by uniting with each other, inventing warlike weapons, disciplining themselves, and perfecting their organizations as military forces, and dividing their plunder (including their captives) among themselves, either in such proportions as have been previously agreed on, or in such as their leaders (always desirous to increase the number of their followers) should prescribe.

The success of these bands of robbers was an easy thing, for the reason that those whom they plundered and enslaved were comparatively defenceless; being scattered thinly over the country; engaged wholly in trying, by rude implements and heavy labor, to extort a subsistence from the soil; having no weapons of war, other than sticks and stones; having no military discipline or organization, and no means of concentrating their forces, or acting in concert, when suddenly attacked. Under these circumstances, the only alternative left them for saving even their lives, or the lives of their families, was to yield up not only the crops they had gathered, and the lands they had cultivated, but themselves and their families also as slaves.

Thenceforth their fate was, as slaves, to cultivate for others the lands they had before cultivated for themselves. Being driven constantly to their labor, wealth slowly increased; but all went into the hands of their tyrants.

These tyrants, living solely on plunder, and on the labor of their slaves, and applying all their energies to the seizure of still more plunder, and the enslavement of still other defenceless persons; increasing, too, their numbers, perfecting their organizations, and multiplying their weapons of war, they extend their conquests until, in order to hold what they have already got, it becomes necessary for them to act systematically, and co operate with each other in holding their slaves in subjection.

But all this they can do only by establishing what they call a government, and making what they call laws.

[18]

All the great governments of the world—those now existing, as well as those that have passed away—have been of this character. They have been mere bands of robbers, who have associated for purposes of plunder, conquest, and the enslavement of their fellow men. And their laws, as they have called them, have been only such agreements as they have found it necessary to enter into, in order to maintain their organizations, and act together in plundering and enslaving others, and in securing to each his agreed share of the spoils.

All these laws have had no more real obligation than have the agreements which brigands, bandits, and pirates find it necessary to enter into with each other, for the more successful accomplishment of their crimes, and the more peaceable division of their spoils.

Thus substantially all the legislation of the world has had its origin in the desires of one class of persons to plunder and enslave others, and hold them as property.

Section III.

In process of time, the robber, or slave holding, class—who had seized all the lands, and held all the means of creating wealth—began to discover that the easiest mode of managing their slaves, and making them profitable, was not for each slaveholder to hold his specified number of slaves, as he had done before, and as he would hold so many cattle, but to give them so much liberty as would throw upon themselves (the slaves) the responsibility of their own subsistence, and yet compel them to sell their labor to the land-holding class—their former owners—for just what the latter might choose to give them.

Of course, these liberated slaves, as some have erroneously called them, having no lands, or other property, and no means of obtaining an independent subsistence, had no alternative—to save themselves from starvation—but to sell their labor to the landholders, in exchange only for the coarsest necessaries of life; not always for so much even as that.

[19]

These liberated slaves, as they were called, were now scarcely less slaves than they were before. Their means of subsistence were perhaps even more precarious than when each had his own owner, who had an interest to preserve his life. They were liable, at the caprice or interest of the land-holders, to be thrown out of home, employment, and the opportunity of even earning a subsistence by their labor. They were, therefore, in large numbers, driven to the necessity of begging, stealing, or starving; and became, of course, dangerous to the property and quiet of their late masters.

The consequence was, that these late owners found it necessary, for their own safety and the safety of their property, to organize themselves more perfectly as a government, and make laws for keeping these dangerous people in subjection; that is, laws fixing the prices at which they should be compelled to labor, and also prescribing fearful punishments, even death itself, for such thefts and trespasses as they were driven to commit, as their only means of saving themselves from starvation.

These laws have continued in force for hundreds, and, in some countries, for thousands of years; and are in force to-day, in greater or less severity, in nearly all the countries on the globe.

The purpose and effect of these laws have been to maintain, in the hands of the robber, or slave holding class, a monopoly of all lands, and, as far as possible, of all other means of creating wealth; and thus to keep the great body of laborers in such a state of poverty and dependence, as would compel them to sell their labor to their tyrants for the lowest prices at which life could be sustained.

The result of all this is, that the little wealth there is in the world is all in the hands of a few—that is, in the hands of the law-making, slave-holding class; who are now as much slave-holders in spirit as they ever were, but who accomplish their purposes by means of the laws they make for keeping the laborers in subjection and dependence, instead of each one’s owning his individual slaves as so many chattels.

[20]

Thus the whole business of legislation, which has now grown to such gigantic proportions, had its origin in the conspiracies, which have always existed among the few, for the purpose of holding the many in subjection, and extorting from them their labor, and all the profits of their labor.

And the real motives and spirit which lie at the foundation of all legislation—notwithstanding all the pretences and disguises by which they attempt to hide themselves—are the same to-day as they always have been. The whole purpose of this legislation is simply to keep one class of men in subordination and servitude to another.

Section IV.

What, then, is legislation? It is an assumption by one man, or body of men, of absolute, irresponsible dominion over all other men whom they can subject to their power. It is the assumption by one man, or body of men, of a right to subject all other men to their will and their service. It is the assumption by one man, or body of men, of a right to abolish outright all the natural rights, all the natural liberty of all other men; to make all other men their slaves; to arbitrarily dictate to all other men what they may, and may not, do; what they may, and may not, have; what they may, and may not, be. It is, in short, the assumption of a right to banish the principle of human rights, the principle of justice itself, from off the earth, and set up their own personal will, pleasure, and interest in its place. All this, and nothing less, is involved in the very idea that there can be any such thing as human legislation that is obligatory upon those upon whom it is imposed.

Endnotes

*

Sir William Jones, an English judge in India, and one of the most learned judges that ever lived, learned in Asiatic as well as European law, says: “It is pleasing to remark the similarity, or, rather, the identity, of those conclusions which pure, unbiassed reason, in all ages and nations, seldom fails to draw, in such juridical inquiries as are not fettered and manacled by positive institutions.”—Jones on Bailments, 133.

He means here to say that, when no law his been made in violation of justice, judicial tribunals, “in all ages and nations,” have “seldom” failed to agree as to what justice is.

T.34 A Letter to Thomas F. Bayard: Challenging his Right - and that of all the Other Socalled Senators and Representatives in Congress - to Exercise any Legislative Power whatever over the People of the United States (1882).↩

Title

[34.] A Letter to Thomas F. Bayard: Challenging his Right - and that of all the Other Socalled Senators and Representatives in Congress - to Exercise any Legislative Power whatever over the People of the United States (Boston: Published by the Author, 1882).

- also online </titles/2232>.

Text

LETTER

To Thomas F. Bayard, of Delaware:

Sir,—

I have read your letter to Rev. Lyman Abbott, in which you express the opinion that it is at least possible for a man to be a legislator, (under the Constitution of the United States,) and yet be an honest man.

This proposition implies that you hold it to be at least possible that some four hundred men should, by some process or other, become invested with the right to make laws of their own—that is, laws wholly of their own device, and therefore necessarily distinct from the law of nature, or the principles of natural justice; and that these laws of their own making shall be really and truly obligatory upon the people of the United States; and that, therefore, the people may rightfully be compelled to obey them.

All this implies that you are of the opinion that the Congress of the United States, of which you are a member, has, by some process or other, become possessed of some right of arbitrary dominion over the people of the United States; which right of arbitrary dominion is not given by, and is, therefore, necessarily in conflict with, the law of nature, the principles of natural justice, and the natural rights of men, as individuals. All this is necessarily implied in the idea that the Congress now possesses any right whatever to make any laws whatever, of its own device—that is, any laws that shall be either more, less, or other than that natural law, which it can neither make, unmake, nor alter—and cause them to be enforced upon the people of the United States, or any of them, against their will.

You assume that the right of arbitrary dominion—that is, [4] the right of making laws of their own device, and compelling obedience to them—is a “trust” that has been delegated to those who now exercise that power. You call it “the trust of public power.”

But, Sir, you are mistaken in supposing that any such power has ever been delegated, or ever can be delegated, by any body, to any body.

Any such delegation of power is naturally impossible, for these reasons, viz:—

1. No man can delegate, or give to another, any right of arbitrary dominion over himself; for that would be giving himself away as a slave. And this no one can do. Any contract to do so is necessarily an absurd one, and has no validity. To call such a contract a “Constitution,” or by any other high-sounding name, does not alter its character as an absurd and void contract.

2. No man can delegate, or give to another, any right of arbitrary dominion over a third person; for that would imply a right in the first person, not only to make the third person his slave, but also a right to dispose of him as a slave to still other persons. Any contract to do this is necessarily a criminal one, and therefore invalid. To call such a contract a “Constitution” does not at all lessen its criminality, or add to its validity.

These facts, that no man can delegate, or give away, his own natural right to liberty, nor any other man’s natural right to liberty, prove that he can delegate no right of arbitrary dominion whatever—or, what is the same thing, no legislative power whatever—over himself or any body else, to any man, or body of men.

This impossibility of any man’s delegating any legislative power whatever necessarily results from the fact, that the law of nature has drawn the line, and the only line—and that, too, [5] a line that can never be effaced nor removed—between each man’s own inherent and inalienable rights of person and property, and each and every other man’s inherent and inalienable rights of person and property. It, therefore, necessarily fixes the unalterable limits, within which every man may rightfully seek his own happiness, in his own way, free from all responsibility to, or interference by, his fellow men, or any of them.

All this pretended delegation of legislative power—that is, of a power, on the part of the legislators, so-called, to make any laws of their own device, distinct from the law of nature—is therefore an entire falsehood; a falsehood, whose only purpose is to cover and hide a pure usurpation, by one body of men, of arbitrary dominion over other men.

That this legislative power, or power of arbitrary dominion, is a pure usurpation, on the part of those who now exercise it, and not “a trust” delegated to them, is still further proved by the fact that the only delegation of power, that is even professed or pretended to be made, is made secretly—that is, by secret ballot—and not in any open and authentic manner; and therefore not by any men, or body of men, who make themselves personally responsible, as principals, for the acts of those to whom they profess to delegate the power.

All this pretended delegation of power having been made secretly—that is, only by secret ballot—not a single one of all the legislators, so-called, who profess to be exercising only a delegated power, has himself any legal knowledge, or can offer any legal proof, as to who the particular individuals were, who delegated it to him. And having no power to identify the individuals who professed to delegate the power to him, he cannot show any legal proof that any body ever even attempted or pretended to delegate it to him.

Plainly a man, who exercises any arbitrary dominion over other men, and who claims to be exercising only a delegated power, but cannot show who his principals are, nor, consequently, [6] prove that he has any principals, must be presumed, both in law and reason, to have no principals; and therefore to be exercising no power but his own. And having, of right, no such power of his own, he is, both in law and reason, a naked usurper.

Sir, a secret ballot makes a secret government; and a secret government is a government by conspiracy; in which the people at large can have no rights. And that is the only government we now have. It is the government of which you are a voluntary member, and supporter, and yet you claim to be an honest man. If you are an honest man, is not your honesty that of a thoughtless, ignorant man, who merely drifts with the current, instead of exercising any judgment of his own?

For still another reason, all legislators, so-called, under the Constitution of the United States, are exercising simply an arbitrary and irresponsible dominion of their own; and not any authority that has been delegated, or pretended to have been delegated, to them. And that reason is, that the Constitution itself (Art. 1, Sec. 6) prescribes that:—

“For any speech or debate [or vote] in either house, they [the Senators and Representatives] shall not be questioned [held to any legal responsibility] in any other place.”

This provision makes the legislators constitutionally irresponsible to anybody; either to those on whom they exercise their power, or to those who may have, either openly or secretly, attempted or pretended to delegate power to them. And men, who are legally responsible to nobody for their acts, cannot truly be said to be the agents of any body, or to be exercising any power but their own: for all real agents are necessarily responsible both to those on whom they act, and to those for whom they act.

To say that the people of this country ever have bound, or ever could bind, themselves by any contract whatever—the [7] Constitution, or any other—to thus give away all their natural rights of property, liberty, and life, into the hands of a few men—a mere conclave—and that they should make it a part of the contract itself that these few men should be held legally irresponsible for the disposal they should make of those rights, is an utter absurdity. It is to say that they have bound themselves, and that they could bind themselves, by an utterly idiotic and suicidal contract.

If such a contract had ever been made by one private individual to another, and had been signed, sealed, witnessed, acknowledged, and delivered, with all possible legal formalities, no decent court on earth—certainly none in this country—would have regarded it, for a moment, as conveying any right, or delegating any power, or as having the slightest legal validity, or obligation.

For all the reasons now given, and for still others that might be given, the legislative power now exercised by Congress, is, in both law and reason, a purely personal, arbitrary, irresponsible, usurped dominion on the part of the legislators themselves, and not a power delegated to them by anybody.

Yet under the pretence that this instrument gives them the right of an arbitrary and irresponsible dominion over the whole people of the United States, Congress has now gone on, for ninety years and more, filling great volumes with laws of their own device, which the people at large have never read, nor even seen, nor ever will read or see; and of whose legal meanings it is morally impossible that they should ever know any thing. Congress has never dared to require the people even to read these laws. Had it done so, the oppression would have been an intolerable one; and the people, rather than endure it, would have either rebelled, and overthrown the government, or would have fled the country. Yet these laws, which Congress has not dared to require the people even to read, it has compelled them, at the point of the bayonet, to obey.

[8]

And this moral, and legal, and political monstrosity is the kind of government which Congress claims that the Constitution authorizes it to impose upon the people.

Sir, can you say that such an arbitrary and irresponsible dominion as this, over the properties, liberties, and lives of fifty millions of people—or even over the property, liberty, or life of any one of those fifty millions—can be justified on any reason whatever? If not, with what color of truth can you say that you yourself, or anybody else, can act as a legislator, under the Constitution of the United States, and yet be an honest man?

To say that the arbitrary and irresponsible dominion, that is exercised by Congress, has been delegated to it by the Constitution, and not solely by the secret ballots of the voters for the time being, is the height of absurdity; for what is the Constitution? It is, at best, a writing that was drawn up more than ninety years ago; was assented to at the time only by a small number of men; generally those few white male adults who had prescribed amounts of property; probably not more than two hundred thousand in all; or one in twenty of the whole population.

Those men have been long since dead. They never had any right of arbitrary dominion over even their contemporaries; and they never had any over us. Their wills or wishes have no more rightful authority over us, than have the wills or wishes of men who lived before the flood. They never personally signed, sealed, acknowledged, or delivered, or dared to sign, seal, acknowledge, or deliver, the instrument which they imposed upon the country as law. They never, in any open and authentic manner, bound even themselves to obey it, or made themselves personally responsible for the acts of their so-called agents under it. They had no natural right to impose it, as law, upon a single human being. The whole proceeding was a pure usurpation.

[9]

In practice, the Constitution has been an utter fraud from the beginning. Professing to have been “ordained and established” by “We, the people of the United States,” it has never been submitted to them, as individuals, for their voluntary acceptance or rejection. They have never been asked to sign, seal, acknowledge, or deliver it, as their free act and deed. They have never signed, sealed, acknowledged, or delivered it, or promised, or laid themselves under any kind of obligation, to obey it. Very few of them have ever read, or even seen it; or ever will read or see it. Of its legal meaning (if it can be said to have any) they really know nothing; and never did, nor ever will, know any thing.

Why is it, Sir, that such an instrument as the Constitution, for which nobody has been responsible, and of which few persons have ever known any thing, has been suffered to stand, for the last ninety years, and to be used for such audacious and criminal purposes? It is solely because it has been sustained by the same kind of conspiracy as that by which it was established; that is, by the wealth and the power of those few who were to profit by the arbitrary dominion it was assumed to give them over others. While the poor, the weak, and the ignorant, who were to be cheated, plundered, and enslaved by it, have been told, and some of them doubtless made to believe, that it is a sacred instrument, designed for the preservation of their rights.

These cheated, plundered, and enslaved persons have been made to feel, if not to believe, that the Constitution had such miraculous power, that it could authorize the majority (or even a plurality) of the male adults, for the time being—a majority numbering at this time, say, five millions in all—to exercise, through their agents, secretly appointed, an arbitrary and irresponsible dominion over the properties, liberties, and lives of the whole fifty millions; and that these fifty millions have no rightful alternative but to submit all their rights to this arbitrary [10] dominion, or suffer such confiscation, imprisonment, or death as this secretly appointed, irresponsible cabal, of so-called legislators, should see fit to resort to for the maintenance of its power.

As might have been expected, and as was, to a large degree, at least, intended, this Constitution has been used from the beginning by ambitious, rapacious, and unprincipled men, to enable them to maintain, at the point of the bayonet, an arbitrary and irresponsible dominion over those who were too ignorant and too weak to protect themselves against the conspirators who had thus combined to deceive, plunder, and enslave them.

Do you really think, Sir, that such a constitution as this can avail to justify those who, like yourself, are engaged in enforcing it? Is it not plain, rather, that the members of Congress, as a legislative body, whether they are conscious of it, or not, are, in reality, a mere cabal of swindlers, usurpers, tyrants, and robbers? Is it not plain that they are stupendous blockheads, if they imagine that they are anything else than such a cabal? or that their so-called laws impose the least obligation upon anybody?

If you have never before looked at this matter in this light, I ask you to do so now. And in the hope to aid you in doing so candidly, and to some useful purpose, I take the liberty to mail for you a pamphlet entitled:

“Natural Law; or the Science of Justice; a Treatise on Natural Law, Natural Justice, Natural Rights, Natural Liberty, and Natural Society; Showing That All Legislation Whatsoever Is an Absurdity, A Usurpation, and a Crime. Part I.

In this pamphlet, I have endeavored to controvert distinctly the proposition that, by any possible process whatever, any man, or body of men, can become possessed of any right of arbitrary dominion over other men, or other men’s property; [11] or, consequently, any right whatever to make any law whatever, of their own—distinct from the law of nature—and compel any other men to obey it.

I trust I need not suspect you, as a legislator under the Constitution, and claiming to be an honest man, of any desire to evade the issue presented in this pamphlet. If you shall see fit to meet it, I hope you will excuse me for suggesting that—to avoid verbiage, and everything indefinite—you give at least a single specimen of a law that either heretofore has been made, or that you conceive it possible for legislators to make—that is, some law of their own device—that either has been, or shall be, really and truly obligatory upon other persons, and which such other persons have been, or may be, rightfully compelled to obey.

If you can either find or devise any such law, I trust you will make it known, that it may be examined, and the question of its obligation be fairly settled in the popular mind.

But if it should happen that you can neither find such a law in the existing statute books of the United States, nor, in your own mind, conceive of such a law as possible under the Constitution, I give you leave to find it, if that be possible, in the constitution or statute book of any other people that now exist, or ever have existed, on the earth.

If, finally, you shall find no such law, anywhere, nor be able to conceive of any such law yourself, I take the liberty to suggest that it is your imperative duty to submit the question to your associate legislators; and, if they can give no light on the subject, that you call upon them to burn all the existing statute books of the United States, and then to go home and content themselves with the exercise of only such rights and powers as nature has given to them in common with the rest of mankind.

LYSANDER SPOONER.

Boston,

May 27, 1882.

T.35 A Letter to Scientists and Inventors, on the Science of Justice, and their Right of Perpetual Property in their Discoveries and Inventions (1884).↩

Title

[35.] A Letter to Scientists and Inventors, on the Science of Justice, and their Right of Perpetual Property in their Discoveries and Inventions (Boston: Cupples, Upham & Co., 1884).

- also online Shorter Works, vol. 2: </titles/2292#lf1531-02_head_052>

Text

LETTER.

A LETTER

TO

SCIENTISTS

and

INVENTORS,

ON

THE SCIENCE OF JUSTICE, AND THEIR RIGHT OF PERPETUAL PROPERTY IN THEIR DISCOVERIES AND INVENTIONS.

By Lysander Spooner.

BOSTON:

CUPPLES, UPHAM & CO.

283 Washington Street.

1884.

[2]

[The author reserves his Copyright in this Pamphlet.]

First edition printed in July, 1884.

Boston, Mass., July, 1884.

[3]

SECTION I.: To Scientists and Inventors:

You are the great producers and diffusers of knowledge and wealth. Your scientific discoveries and mechanical inventions are the great, almost the only, instrumentalities by which the world at large is enlightened or enriched. You, Scientists, explore Nature for her facts and laws, which, violated through ignorance or design, bring upon mankind want, disease, misery, and death; but which, known and accepted as guides, bring to them not only great material wealth, but also life, health, and strength of both body and mind. And you, Inventors, devise and explain to us the application of mechanical forces, by which men’s powers of providing for, and satisfying, their wants and desires, are multiplied a thousand, ten thousand, a hundred thousand fold.

Your discoveries and inventions, the value of which no man can measure, are not, like our material wealth, consumed, or worn out, by use, nor do they decay by time. They are not, like our material wealth, local and limited in their nature; but each and all of them can be diffused all over the globe, and be utilized by all peoples, not only without conflict, but with mutual and universal benefit.

For the want of your discoveries and inventions, mankind, through many thousands of years, have remained savage, barbarous, or, if in any degree civilized, still poverty-stricken, short-lived, feeble, ignorant, superstitious, enslaved in both body and mind. And such is the condition of more than a thousand millions of the world’s people to-day. And such it will remain for [4] thousands of years to come, unless they can have the benefit of such discoveries and inventions as you are making, and offering to them; and such as they would accept and utilize, if their governments did not deprive them of all power to do so.

In spite of all the obstacles which these governments have constantly placed in their way, these discoveries and inventions have, of late years, and in some portions of the world, made progress. And nobody knows so well as yourselves, how much greater this progress would be, if all men of scientific and inventive minds, all over the world, had all the inducements and means that they might have, and ought to have, for prosecuting their investigations and experiments.

Your own rights and interests, and the rights and interests of mankind at large, are identical in this matter. It is your own right, and for your own interest, that you should have all the inducements and means that you honestly can have, for prosecuting your investigations and experiments, and producing all the discoveries and inventions that you are capable of. It is also the right, and for the interests, of mankind at large, that you should have all those inducements and means, because it is only through the greatest number of discoveries and inventions, that mankind are to be most highly enlightened and enriched.

What, then, are these inducements and means, which you need, and have a right to, and which it is the right, and for the interests, of mankind at large, that you should have? They are these:

1. The same right of perpetual property in the products of your brains, that all other men are justly entitled to have in the products of their hands.

2. The same protection, by both civil and criminal law, for the products of your brain labor, that other men are justly entitled to have for the products of their hand labor.

3. The same right of perpetual property in your discoveries and inventions, in all the other countries of the world, as in your own.

4. It is the right, and for the interests, of all past discoverers and inventors, and of their heirs, to recover their natural right of perpetual property in their discoveries and inventions, which has [5] hitherto been denied or withheld by the ignorant and tyrannical governments that have heretofore existed, and now exist, in the world.

5. It is also the right, and for the interests, of mankind at large, that the right of perpetual property, in their discoveries and inventions, should be restored to all past discoverers and inventors, and to their heirs, so far as they can now be ascertained.

6. It is your right to have all the money you need, and honestly can have—that is, all the money that freedom in banking would give you—not only for making your discoveries and inventions, but also for carrying them all over the world, and putting them into actual operation.

7. It is your right, and for your interests, as well as their own, that all mankind, all over the world, should have all the money they need, and honestly can have—that is, all the money that freedom in banking would give them—to enable them to utilize your discoveries and inventions as fast as they are made, and to distribute to consumers all the wealth that your discoveries and inventions will enable them to create.

How are all these propositions to be realized? In other words, how are they all to be established as law, in all the different countries of the world?

The general answer to this question is, that these propositions are all to be established as law, all over the world, by showing their truth and justice to all peoples; and also by showing, not only their adaptation, but their necessity, for promoting the highest enlightenment, and the greatest enrichment, of all the peoples of the earth.

But a more particular answer is needed. And it will now be given, by showing not only the truth and justice of the several propositions themselves, and their adaptation and necessity to produce all that is now claimed for them, but also by showing that scientists and inventors have it in their own power, while promoting their own highest interests, to accomplish the whole work.

[6]

SECTION II.

Before proceeding to the consideration of the preceding propositions, it is your right, and for your interests, to have this one question decided, viz.: Whether your scientific discoveries and mechanical inventions, by which, incomparably beyond all other men, you are enlightening and enriching mankind, are, in their nature, an equally legitimate property, and entitled to the same legal protection, as are the products of men’s manual labor? Or whether that mere pittance of protection, which is allowed to them in a few countries, and not at all in others, is all the reward to which your labors are entitled?

When this question shall be rightly answered, all the other questions must necessarily be rightly answered, too. And this question is really and finally answered by the single fact that knowledge is property.

That knowledge is wealth—and wealth, too, of the greatest value—no man of sense will deny. Why, then, is it not property? And subject to all the laws of property?

Knowledge is property. It is a property that is really acquired only by labor of mind, or body, or both; oftentimes only by great labor of both body and mind. It is also a property that is extensively bought and sold, like other property, in the market.

It is true that a vast amount of knowledge—knowledge, too, of great intrinsic value—is so common, from having been acquired by each one’s own experience and observation, that it bears no price in the market; but that does not affect the principle, that all knowledge, that will bring a price in free and open market, is as legitimate a subject of bargain and sale as is any material commodity whatever.

Even so common and simple a knowledge as that of the alphabet has its market value, and is rightfully bought and sold. The young girl, who knows the alphabet, is rightfully paid for imparting that knowledge to those younger, or less enlightened than herself.

On the other hand, the highest kinds of knowledge—or, at least, what passes for such in this ignorant world—is constantly and openly bought and sold, oftentimes at enormous prices.

[7]

Thus legislators, judges, lawyers, editors, teachers of all kinds, physicians, priests, and soldiers, are continually selling their knowledge—and, perhaps, quite as frequently their ignorance and falsehoods—for money.

Legislators are continually selling such knowledge—or, rather, such ignorance and falsehoods—as these, viz.: That they themselves are rightfully invested with absolute and irresponsible dominion over the property, liberty, and lives of their fellow men; that their discretion, in the exercise of this power, can rightfully be restrained by no natural principles of justice; that their commands are authoritative and final, and the only imperative rule of action for all whom they call their subjects; that resistance to their laws, as they call them, is the greatest of crimes, and may rightfully, and must necessarily, be punished with confiscation, imprisonment, and death. In all ages, the mass of mankind have been compelled to pay, with their property, liberty, and, in vast numbers of cases, with their lives, for such knowledge—or, rather, for such monstrosities, absurdities, and falsehoods—as these.

Under the name of knowledge, judges, lawyers, and editors are constantly affirming, repeating, and reiterating these monstrosities, absurdities, and falsehoods of the legislators; and are taking their pay for so doing, as if they were really selling the most valuable commodities.

Surely it does not lie in the mouths of these legislators, judges, lawyers and editors, who live and flourish by selling such falsehoods as these, to say that the scientific discoveries and mechanical inventions, which are every day demonstrating their power to enlighten, enrich, and liberate all mankind, are not legitimate property, that may rightfully be bought and sold.

The knowledge of the soldier—such as it is—is in great demand. To him who knows how to kill the greatest number of men, in the shortest time, and for the most frivolous or unjust causes, his knowledge is his fortune. Legislators are so constantly dependent upon it for their very existence as legislators, that they pay enormous sums for it—but always out of other people’s money.

[8]

Physicians, in all ages, have been freely selling their knowledge—or, more commonly, their ignorance and falsehoods; and the purchasers have been paying for them with their property, their health, and their lives.

Does it lie in the mouths of these physicians to deny that scientific truths and mechanical inventions are legitimate subjects of property?

Priests have for ages been selling, under the name of knowledge, absurd dogmas and creeds, which they described as sure to carry the believer in them to a future world of eternal and indescribable happiness, and as equally sure to carry all unbelievers in them to a future world of eternal and indescribable woe. And they, in conspiracy with legislators who needed their aid, have compelled the mass of mankind to pay for this so-called knowledge, under the alternatives of imprisonment, torture, and death. But they have never demonstrated the truth of their dogmas. No one of their number has ever gone to the future world, and brought back the information that their so-called knowledge was anything other than ignorance and falsehood.

Does it lie in the mouths of these priests to say that scientific discoveries and mechanical inventions, whose truth and utility are being constantly demonstrated before all the world, are not legitimate subjects of property? or, consequently, of free bargain and sale?

Will the people themselves, whose ancestors, for thousands of years, have been swindled out of their common sense, their property, health, liberty, and lives, by these venders of ignorance and falsehood, under the name of knowledge—and who are now being swindled in the same way themselves—will they deny that such veritable realities as scientific discoveries and mechanical inventions—discoveries and inventions that have demonstrated their power to fill the earth with knowledge, and health, and wealth, and liberty—are legitimate subjects of property, that may freely and rightfully be bought and sold? Will they choose to pay—as they and their ancestors hitherto have done—with their property, health, liberty, and lives, for such ignorance, falsehood, oppression, robbery, and ruin, as have hitherto been dealt out to them, rather [9] than for such health, wealth, truth, justice, and liberty as scientists and inventors offer them?

And, finally, will not scientists and inventors themselves, while establishing their own rights to their own property, give themselves to the work of establishing justice, as a science, in place of the absurdities, the falsehoods, the chicanery, the usurpations, and the arbitrary, irresponsible power of the ambitious, rapacious, and unprincipled men, by whom the world is now ruled, and who make mankind their dupes and their prey?

If they will but do this, the work will soon be accomplished.

SECTION III.

Assuming it now to be settled that your discoveries and inventions are, in their nature, a legitimate property, the first of the propositions before mentioned to be established is this, viz.: That, in truth and justice, scientists and inventors have the same right of perpetual property in the products of their brain labor, that other men have in the products of their hand labor.

This proposition is established by the simple facts that knowledge is property, and is, in its nature, durable, vendible, and transferable; for all property, in things durable, vendible, and transferable, is, in its very nature, perpetual, and a legitimate subject of devise and inheritance. And no formal will or testament is necessary to convey a man’s property, at his decease, to his so-called natural heirs—such as his wife and children—or, in the absence of such, to his nearest blood relations. The facts that, during his life, his moral duty and natural affection prompt him to acquire wealth, and expend it for the support and happiness of these so-called natural heirs, rather than for others whom he does not know, or, knowing, does not love, furnishes a sufficient proof, or at least a sufficient presumption, that, at his death, he desires them to possess the property he leaves behind him; and nothing but the clearest proof to the contrary is allowed to defeat that presumption. And for a government to confiscate, after his death, [10] this property, which he had produced or accumulated for their support or benefit, would be as gross and cruel an act of tyranny and robbery, as it would be to confiscate it during his lifetime. And the common sentiments of mankind have concurred in this opinion. And this principle is plainly as applicable to intellectual, as to material, property. And the fact that this principle has heretofore been wholly, or partially, disregarded in its application to intellectual property, is only a proof of the ignorance, or villainy, of the governments that have ruled the world.

But let us look further into this right of perpetual property.

When a man digs into the earth, and finds, and takes possession of, a diamond, he thereby acquires a supreme right of property in it, against all the world; and this right of property becomes perpetual in his heirs and assigns.

So, also, when a man dives into the sea, and brings up a pearl, he thereby acquires a supreme right of property in it, against all the world; and this right of property becomes perpetual in his heirs and assigns.

This right of perpetual property is the reward that nature offers to those who take upon themselves the labor of discovering her secret wealth, and making it available for man’s use.

By the same rule, when the scientist, in his laboratory, discovers that, in nature, there exists a substance, or a law, that was before unknown, but that may be useful to mankind, he thereby acquires a supreme right of property in that knowledge, against all the world; and he may either use it himself, or sell it, or lend it to others for use, the same as he might rightfully do with any material property. This is the reward that nature offers him for his labor.

And this right of property is as much a perpetual one, as is the right of property in the case of the diamond, or the pearl.

And to deprive him of this right of property after a given number of years, is as much an act of pure usurpation and robbery, as it would be to take from the diamond digger and the pearl diver, the products of their labor, after a given number of years.

So, too, the inventor, who acquires a knowledge of mechanical forces, and then applies and combines them in a manner before [11] unknown, and so as to produce a machine that will perform the labor of a hundred, a thousand, or ten thousand men, thereby acquires a supreme right of property in his invention, and may rightfully hold it against all the world. He may either use it himself, or sell it, or lend it to others for use, at his pleasure. This right of property is, in its nature, a perpetual one in himself, his heirs, and assigns; and to deprive him of it, after a given number of years, is as much an act of usurpation and robbery, as it would be to rob the diamond digger, or the pearl diver, of his property, after a given number of years.

It is for the highest interests of all mankind, that this right of perpetual property, in the scientist and inventor, should be acknowledged and maintained.

It is for the highest interests of all mankind, that each and every man should have a right of perpetual property in the products of his own labor; because it is this right alone that can stimulate every man to the highest exercise of his wealth-producing faculties of both body and mind. And the more a man produces for himself, the more he produces for all other men; for in that division of labor which science and invention give rise to, each man usually consumes but a very small portion of the particular wealth he produces. The surplus he gives to other men in exchange for the various kinds of wealth they produce respectively. The more, therefore, each one produces, the more all finally receive for their own consumption.

How many diamonds would ever have been digged from the earth, or how many pearls would ever have been taken from the sea, if they had all been confiscated in a few years after they had been obtained? How much gold, or silver, or copper, or iron, or any other metal, would ever have been taken out of the earth, for the benefit of mankind, if they had all been confiscated in a few years after they had been mined? How many farms would have ever been reclaimed from the forest, and brought under cultivation, and made to produce food for man, if they had all been confiscated in a few years after they had been made productive? How many comfortable dwellings would ever have been built, if they had all been confiscated soon after they had been made fit for habitation? [12] How many factories would ever have been built, and filled with machinery, for the production of a thousand, or ten thousand, different kinds of wealth, if they had all been confiscated soon after they were fitted for the uses for which they were designed.

The same arguments, both of justice and expediency, which are applicable in favor of the right of perpetual property in material things, are applicable in favor of the same right of perpetual property in all the scientific discoveries and mechanical inventions that the human mind is capable of producing. And it is because no such—nor indeed any other special—right of property has, until recently, been acknowledged, that the world has heretofore been, and, for the most part, still is, so nearly destitute of all the sciences and inventions by which it would otherwise have been enlightened and enriched.

Even in those small portions of the earth in which some encouragement has, of late years, been given to science and invention, we doubtless have very little, almost no, conception of what would be the increased number of discoveries and inventions, if the right of perpetual property in them were acknowledged and protected, in the same manner as is the right of property in material things.

SECTION IV.

The second proposition to be established is this, viz.: That scientists and inventors are justly entitled to have the same protection, by both civil and criminal law, for the products of their brain labor, that other men are justly entitled to have for the products of their hand labor.

The truth and justice of this proposition are too nearly self-evident to need much argument in their support.

If a man’s scientific discoveries and mechanical inventions are as truly his property as are his houses or lands, then it is plain that any trespass upon them is as clearly a crime as is a trespass upon his houses or lands. And there is the same practical necessity [13] for punishing criminally trespasses against a man’s intellectual property, as there is for punishing criminally trespasses against his material property.

What security could any man have for the quiet possession of his house or his farm, if every other man, who coveted them, but had no color of right to them, could be permitted to take possession of, and use them, and make it necessary for the owner to carry on an expensive and protracted civil suit against each one of these trespassers? It is plain that it would cost him more to defend his house and farm than they were worth; and that his right of property in them would be practically destroyed. This argument is just as strong in favor of punishing criminally trespasses upon intellectual property, as it is for punishing criminally trespasses upon material property.

SECTION V.

The third proposition to be established is this: That scientists and inventors should have the same right of perpetual property in their discoveries and inventions, in all the other countries of the world, as in their own.

This proposition, like the preceding one, is too nearly self-evident to need much argument in its support.

The natural, and only real, right of property is the same throughout the world; and it is only the ignorance and tyranny of the different governments of the world, that make the practical right of property different in different countries.

When justice, as a science, shall be established, as the one only law, in all the countries in the world, the right of property in scientific discoveries and mechanical inventions, as well as in material things, will be one and the same all over the world.

[14]

SECTION VI.

The fourth proposition to be established is this, viz: That it is the right, and for the interests, of all past discoverers and inventors (where their patents have expired), and of their heirs, to recover their natural right of perpetual property in their discoveries and inventions, which has hitherto been denied or withheld by the ignorant and tyrannical governments that have hitherto existed, and now exist, in the world.

This proposition, too, like the preceding ones, is too nearly self-evident to require much argument.

Plainly, scientists and inventors have never voluntarily parted with their natural right of property in their discoveries and inventions. They have never forfeited their right to them by crime. Those who have had the benefit of them, and are now using them, have never bought them, or paid for them, or made any kind of contract with the owners for the use of them. The only reason why the authors of them (or their heirs or assigns) are not now in the full enjoyment of their right of property in them, is that governments, in their ignorance or villainy, have refused either to acknowledge or protect the right at all, or to protect it beyond a limited time; and have thus practically licensed all trespassers to make free plunder of what was the rightful private property of the discoverers and inventors.

To this free plunder of their property, the discoverers and inventors have been obliged to submit, for the time being. But their true and natural right of property has not been lost, or affected, thereby. They have the same true and natural right of property in their discoveries and inventions that they ever had. And they have now the same right to demand the recognition and protection of their rights, that other men have to demand the recognition and protection of their rights to their material property.

Where the discoverers and inventors have died, their descendants have the same natural right of inheritance in their discoveries and inventions, as other men’s descendants have in the material property of their ancestors.

[15]

That the immense value of their discoveries and inventions should now unite all scientists and inventors, (whose patents have expired,) and their heirs, in the effort to recover their rights to them, is too plain to need argument.

SECTION VII.

The fifth proposition to be established is this, viz.: That it is the right, and for the interests, of mankind at large, that the right of perpetual property, in their discoveries and inventions, should be restored to all past discoverers and inventors, and to their heirs, so far as they can now be ascertained.

The truth of this proposition rests, in the first place, upon this basis, viz.: That it is only when all men are protected in their natural right of property in the products of their labor, that all men are stimulated to the production of the greatest amount of wealth they are capable of producing, and each and every man is consequently enabled to give the greatest amount of wealth in exchange for the wealth produced by others. It is, therefore, the right, and for the interests, of every man, who produces any kind of wealth for sale, that all other men, who are to buy his wealth, should be enabled to produce as much as possible themselves, and thus be enabled to give as much as possible in exchange for his.

Every man, who believes in men’s natural right of property in the products of their labor, will acknowledge the truth of this principle, as applicable to the future. But perhaps some will be so unwise, as well as dishonest, as to dispute the principle in its application to the past; and will say that the world having once got possession of a vast amount of intellectual property for nothing, it would now be foolish to give it back to its true owners.

There is some difficulty in reasoning with men who do not believe that honesty is the best policy in all cases whatsoever; men who believe in theft and robbery, whenever they are strong enough to practice them with impunity. But inasmuch as there are a great many such men in the world, and inasmuch as they are [16] now, and always have been, the ruling powers of the world—that is, the chief governors of the world—and inasmuch as they are the class who will most powerfully oppose the rights of all scientists and inventors, both past and future, it becomes necessary to show to others, if not to themselves, that this policy is as shortsighted as it is dishonest.

It has always been the policy of these bands of robbers, who have called themselves governments—in fact, it has in reality been the sole objects of their organizations, as governments—to rob all the producers of wealth, whether intellectual or manual laborers, of all the products of their labor, as fast as they were produced; leaving nothing in the hands of the producers that would enable them to produce more, or that would even enable them to produce their daily food, except as the servants, and by the permission, of these tyrants. And this is the reason—and not the want of scientific and inventive faculties—why, after so many thousands of years, there is so little of either science or invention in the world to-day; and why there is so little of any thing, for the mass of mankind, except poverty, ignorance, and slavery.

It is only within a very recent time—say a single century, or a little more—that any governments have secured to either scientists or inventors any really valuable rewards for their labors. And even within that time, they have only offered such mere temporary, and even trivial, rewards, as were thought sufficient to inspire their hopes, and induce them to produce something valuable, of which they could be robbed. And as soon almost as they have produced anything valuable, they have been robbed of it. Such is to-day the state of the laws under those few governments that alone profess to secure to scientists and inventors any rewards at all for their discoveries and inventions. And this state of things is likely to continue, and is almost certain to continue, until scientists and inventors themselves undertake the work of vindicating and establishing their own natural rights of property in their discoveries and inventions.

But the scientists and inventors themselves will see at once that they cannot consistently advocate their own rights to the [17] products of their own labor, in the future, unless they acknowledge and maintain the same rights for all past scientists and inventors, and their heirs, so far as they can now be ascertained. Every admission on their part, that all past scientists and inventors, or their heirs, may rightfully be robbed of their property, would be a practical confession that all future scientists and inventors may also be rightfully robbed of theirs. No future scientist or inventor, therefore, can consistently claim any rights of property for himself, except such as he is willing to accord to all past scientists and inventors.

But, secondly, it would be very bad policy for either present or future scientists or inventors to make any compromise with their enemies, or to attempt to secure any rights, or purchase any favors, for themselves, by repudiating the rights of any past scientists or inventors, or their heirs. In order to establish their own rights, they will need all the influence, and all the financial capital, they can enlist in the enterprise. And the pecuniary value of past discoveries and inventions is so immense, that its power can hardly be overrated.

Estimate—if that be possible—what would be the actual market value of all the scientific discoveries and mechanical inventions now extant (whose paternity can now be established), if the right of property in them was made perpetual, all over the world!

Can any present or future scientist or inventor be so idiotic as to imagine that he is to gain anything for his particular discovery or invention, by denying, or conceding away, the rights of the real owners of all this vast property in past discoveries and inventions? Or that he can vindicate or establish his own rights more easily, without enlisting the aid of all this capital, than he can by making common cause with it?

A scientist or inventor who should seek to curry favor for his own discovery or invention, by consenting to the confiscation of all other men’s discoveries and inventions, would justly be regarded as the criminal confederate of the robbers and tyrants who now confiscate the discoveries and inventions of all other [18] men, whose labors and products are as worthy of protection as his own.

But perhaps these remarks are unnecessary. It is certainly to be hoped, and, I think, reasonably to be expected, that there can be few so foolish, or so unjust, as to consent to the robbery of all past scientists and inventors, as a condition of having their own rights acknowledged.

The study of science tends to make men not only truthful and just, but also far-seeing; and to lift them above all temptation to practice the meannesses and crimes of those who now rule the world by laws designed to rob one class of men for the benefit of another. And scientists and inventors have now such power, and such inducements, as men never had before, to crush out all the petty, temporary, local, selfish, and criminal schemes that now occupy existing governments; and to establish the reign of justice in their stead.

But we are taking too narrow a view of this subject.

It is not true that mankind at large—or more than one third, or perhaps even a fourth, of all mankind—are in practical possession of the scientific discoveries and mechanical inventions that have been made, and are now in use, in the most enlightened parts of the world—say, Western Europe and the United States. What practical knowledge of these discoveries and inventions have the seven or eight hundred millions of Asia, the two hundred millions of Africa, or the fifty or one hundred millions scattered elsewhere on the globe? Or what practical knowledge will they ever have of them, unless the discoveries and inventions themselves are carried to them, and put in use among them, by persons from outside of these destitute countries? And who has any sufficient motive to carry them into, and put them in operation in, these destitute countries, unless it be the owners of the discoveries and inventions themselves?

The peoples of these destitute countries have, therefore, substantially the same motives for paying for the use of all these past discoveries and inventions, as they have for paying for those that are to be made in the future. That motive is to get the practical use of the discoveries and inventions, and to get it at the earliest [19] possible time. Of what importance is the small amount they will have to pay for the use of them, compared with the benefits to be derived from them?*

But, furthermore. The sooner these past discoveries and inventions are carried into the destitute portions of the world, and the better the use of them is paid for there, the sooner the peoples of those countries will be enabled and stimulated to produce discoveries and inventions themselves; and their discoveries and inventions will come back to us, and add to our wealth, in the same way, and, with an immaterial difference, to the same degree, as if made by ourselves.

Now, these vast countries, containing a thousand millions of people, contribute, almost literally, nothing to our wealth, or we to theirs. They are constantly so near to starvation themselves, that they have scarcely anything they can give in exchange for anything we have to offer to them. They do indeed spare us a little tea, rice, indigo, opium, jute, etc., etc. But if they were to give us one really useful invention, it would be worth more to us than all these articles together. And if they were enlightened and enriched—as they would be by our carrying our discoveries and inventions to them, and putting them in practical operation—they would then become scientists and inventors themselves; and the commerce between us, in discoveries and inventions, would be worth millions of times more, both to them and to us, than the present petty commerce in material things.

Still further. The sooner this vast foreign field is opened to our scientists and inventors, the sooner they will be enabled and stimulated to the production of the greatest possible amount of discoveries and inventions for use at home.

And since this foreign field is not at all likely to be soon opened for our scientists and inventors, unless they open it themselves, it would be as impolitic, as it would be dishonest, to deprive all past scientists and inventors, and their heirs, of all motive and [20] all power to carry their discoveries and inventions into the destitute countries, that are perishing for the want of them.

SECTION VIII.

A few words, now, as to the prospective increase of scientific discoveries and mechanical inventions, if their authors’ right of perpetual property in them should be established.

As fast as mankind at large shall become enlightened and enriched by science and invention, and by a knowledge of justice as a science, the oppressions and wars—by which, in all past time, a few men have plundered, starved, enslaved, and butchered so large a portion of their fellow men, and made all progress in knowledge and wealth impossible—will necessarily cease; because the many being enlightened and enriched, the few will then be no longer able to deceive, conspire against, and overpower them, as they hitherto have done. Mankind will, therefore, not only live out their days, and enjoy the fruits of their labor, but they will also have much greater health and strength of both body and mind, and be capable of much greater physical and mental labor than they are now. Each successive generation will also have the benefit of all the scientific discoveries and mechanical inventions, that shall have preceded them, and they will, of course, produce a correspondingly greater number of such discoveries and inventions themselves.

Experience shows that each new discovery and invention generally gives rise to several, oftentimes to many, others. Thus discoveries and inventions will forever go on increasing in geometrical ratio.

But even this is not all. The earth, when cultivated with the aid of such science, implements, and machinery as men are capable of producing, can probably be made to sustain a hundred times its present population. And the increase of population will naturally go on, as men increase their means of subsistence, and [21] cease to starve and destroy each other. And this increase of population will, of itself, naturally bring a corresponding increase of scientific discoveries and mechanical inventions. Who, then, can set any limit to the future progress of mankind in knowledge and wealth?

Under the stimulus of this principle of property, mankind will soon become a very different, an almost wholly different, race of beings from what they now are. They will learn—what so few of them seem now to understand—not only that they have brains, but also what their brains were designed for, and are capable of. When these lessons shall have been learned, the knowledge that will be accumulated in consequence will become the great wealth of the world.

SECTION IX.

It is plainly to be seen, by those who choose to see, that science and invention are bringing, and are destined to bring, all the peoples of the earth together, and show them their power to promote each others’ welfare, and their duty to live together in peace.

The only obstacle this great movement has now to meet, is that presented by ignorant, hostile, and tyrannical governments. It is plain that if all mankind are to live together in peace, and contribute their utmost to each other’s welfare, they must get rid of their existing governments, and all live under one and the same, and only one and the same, law. That one law is the law of justice. This is the one only law the world needs, or can endure. Whatever other laws (so called) are either more, less, or other than justice itself, are necessarily unjust, and are therefore to be resisted and abolished.

Whenever, in any case whatever, this one law of justice is repudiated, violence and fraud are necessarily licensed in its stead.

[22]

But this one law of justice is a natural principle, and not any thing that any human power can make, unmake, or modify. Being a natural principle, it is a subject of science, and is to be learned like all other sciences. It is also the same in all places, and in all times; and will remain the same in all places, and among all peoples, so long as the world shall stand.

The want of this one law is the only obstacle, not only in the way of your carrying your present discoveries and inventions all over the world, but also to such a multiplication of discoveries and inventions as doubtless mankind at large—nor even the most far-seeing of them—have ever conceived of.

You, above all other men, (I repeat) have the power and the inducements to carry this law all over the world, and establish its authority in opposition to all the adverse laws and governments that now exist.

In subsequent letters, and other separate publications, if scientists and inventors shall favor the enterprise, I purpose to show that it is perfectly feasible and easy to establish, all over the world, their right of perpetual property in their discoveries and inventions. In fact, unless scientists and inventors can maintain their own rights of property, and establish justice in the place of such transparent conspiracies and villanies as all the principal governments of the world now are, it is plain that, instead of claiming to be the great lights and benefactors of mankind, they ought to write themselves down as imbeciles, cowards, and slaves.

Endnotes

*

The probability is, I think, that if the right of property in all scientific discoveries and mechanical inventions, past and future, were made perpetual, all over the world, the discoverers and inventors themselves, and their heirs and assigns, would get not more than one per cent. of all the wealth created by means of them.

T.36 A Letter to Grover Cleveland, on his False Inaugural Address, the Usurpations and Crimes of Lawmakers and Judges, and the Consequent Poverty, Ignorance, and Servitude of the People (1886).↩

Title

[36.] A Letter to Grover Cleveland, on his False Inaugural Address, the Usurpations and Crimes of Lawmakers and Judges, and the Consequent Poverty, Ignorance, and Servitude of the People (Boston: Benj. R. Tucker, Publisher, 1886).

- also online </titles/2224>.

Text

A LETTER TO GROVER CLEVELAND.

Section I.

To Grover Cleveland:

Sir,—

Your inaugural address is probably as honest, sensible, and consistent a one as that of any president within the last fifty years, or, perhaps, as any since the foundation of the government. If, therefore, it is false, absurd, self-contradictory, and ridiculous, it is not (as I think) because you are personally less honest, sensible, or consistent than your predecessors, but because the government itself—according to your own description of it, and according to the practical administration of it for nearly a hundred years—is an utterly and palpably false, absurd, and criminal one. Such praises as you bestow upon it are, therefore, necessarily false, absurd, and ridiculous.

Thus you describe it as “a government pledged to do equal and exact justice to all men.”

Did you stop to think what that means? Evidently you did not; for nearly, or quite, all the rest of your address is in direct contradiction to it.

Let me then remind you that justice is an immutable, natural principle; and not anything that can be made, unmade, or altered by any human power.

It is also a subject of science, and is to be learned, like mathematics, or any other science. It does not derive its authority from the commands, will, pleasure, or discretion of any possible combination of men, whether calling themselves a government, or by any other name.

It is also, at all times, and in all places, the supreme law. And being everywhere and always the supreme law, it is necessarily everywhere and always the only law.

Lawmakers, as they call themselves, can add nothing to it, nor take anything from it. Therefore all their laws, as they call them,—that is, all the laws of their own making,—have no color of authority or obligation. It is a falsehood to call them laws; for there is nothing in them that either creates men’s duties or rights, or enlightens them as to their duties or rights. There is consequently nothing binding or obligatory about them. And nobody is bound to take the least notice [4] of them, unless it be to trample them under foot, as usurpations. If they command men to do justice, they add nothing to men’s obligation to do it, or to any man’s right to enforce it. They are therefore mere idle wind, such as would be commands to consider the day as day, and the night as night. If they command or license any man to do injustice, they are criminal on their face. If they command any man to do anything which justice does not require him to do, they are simple, naked usurpations and tyrannies. If they forbid any man to do anything, which justice would permit him to do, they are criminal invasions of his natural and rightful liberty. In whatever light, therefore, they are viewed, they are utterly destitute of everything like authority or obligation. They are all necessarily either the impudent, fraudulent, and criminal usurpations of tyrants, robbers, and murderers, or the senseless work of ignorant or thoughtless men, who do not know, or certainly do not realize, what they are doing.

This science of justice, or natural law, is the only science that tells us what are, and what are not, each man’s natural, inherent, inalienable, individual rights, as against any and all other men. And to say that any, or all, other men may rightfully compel him to obey any or all such other laws as they may see fit to make, is to say that he has no rights of his own, but is their subject, their property, and their slave.

For the reasons now given, the simple maintenance of justice, or natural law, is plainly the one only purpose for which any coercive power—or anything bearing the name of government—has a right to exist.

It is intrinsically just as false, absurd, ludicrous, and ridiculous to say that lawmakers, so-called, can invent and make any laws, of their own, authoritatively fixing, or declaring, the rights of individuals, or that shall be in any manner authoritative or obligatory upon individuals, or that individuals may rightfully be compelled to obey, as it would be to say that they can invent and make such mathematics, chemistry, physiology, or other sciences, as they see fit, and rightfully compel individuals to conform all their actions to them, instead of conforming them to the mathematics, chemistry, physiology, or other sciences of nature.

Lawmakers, as they call themselves, might just as well claim the right to abolish, by statute, the natural law of gravitation, the natural laws of light, heat, and electricity, and all the other natural laws of matter and mind, and institute laws of their own in the place of them, and compel conformity to them, as to claim the right to set aside the natural law of justice, and compel obedience to such other laws as they may see fit to manufacture, and set up in its stead.

Let me now ask you how you imagine that your so-called lawmakers can “do equal and exact justice to all men,” by any so-called laws of their own making. If their laws command anything but justice, or forbid anything but injustice, they are themselves unjust and criminal. If they simply command justice, and forbid injustice, they add nothing to the natural authority of justice, or to men’s obligation [5] to obey it. It is, therefore, a simple impertinence, and sheer impudence, on their part, to assume that their commands, as such, are of any authority whatever. It is also sheer impudence, on their part, to assume that their commands are at all necessary to teach other men what is, and what is not, justice. The science of justice is as open to be learned by all other men, as by themselves; and it is, in general, so simple and easy to be learned, that there is no need of, and no place for, any man, or body of men, to teach it, declare it, or command it, on their own authority.

For one, or another, of these reasons, therefore, each and every law, so-called, that forty-eight different congresses have presumed to make, within the last ninety-six years, have been utterly destitute of all legitimate authority. That is to say, they have either been criminal, as commanding or licensing men to do what justice forbade them to do, or as forbidding them to do what justice would have permitted them to do; or else they have been superfluous, as adding nothing to men’s knowledge of justice, or to their obligation to do justice, or abstain from injustice.

What excuse, then, have you for attempting to enforce upon the people that great mass of superfluous or criminal laws (so-called) which ignorant and foolish, or impudent and criminal, men have, for so many years, been manufacturing, and promulgating, and enforcing, in violation of justice, and of all men’s natural, inherent, and inalienable rights?

Section II.

Perhaps you will say that there is no such science as that of justice. If you do say this, by what right, or on what reason, do you proclaim your intention “to do equal and exact justice to all men”? If there is no science of justice, how do you know that there is any such principle as justice? Or how do you know what is, and what is not, justice? If there is no science of justice,—such as the people can learn and understand for themselves,—why do you say anything about justice to them? Or why do you promise them any such thing as “equal and exact justice,” if they do not know, and are incapable of learning, what justice is? Do you use this phrase to deceive those whom you look upon as being so ignorant, so destitute of reason, as to be deceived by idle, unmeaning words? If you do not, you are plainly bound to let us all know what you do mean, by doing “equal and exact justice to all men.”

I can assure you, sir, that a very large portion of the people of this country do not believe that the government is doing “equal and exact justice to all men.” And some persons are earnestly promulgating the idea that the government is not attempting to do, and has no intention of doing, anything like “equal and exact justice to all men”; that, on the contrary, it is knowingly, deliberately, and wilfully doing an incalculable amount of injustice; that it has always been doing this in the past, and that it has no intention of doing anything else in the future; that [6] it is a mere tool in the hands of a few ambitious, rapacious, and unprincipled men; that its purpose, in doing all this injustice, is to keep—so far as they can without driving the people to rebellion—all wealth, and all political power, in as few hands as possible; and that this injustice is the direct cause of all the widespread poverty, ignorance, and servitude among the great body of the people.

Now, Sir, I wish I could hope that you would do something to show that you are not a party to any such scheme as that; something to show that you are neither corrupt enough, nor blind enough, nor coward enough, to be made use of for any such purpose as that; something to show that when you profess your intention “to do equal and exact justice to all men,” you attach some real and definite meaning to your words. Until you do that, is it not plain that the people have a right to consider you a tyrant, and the confederate and tool of tyrants, and to get rid of you as unceremoniously as they would of any other tyrant?

Section III.

Sir, if any government is to be a rational, consistent, and honest one, it must evidently be based on some fundamental, immutable, eternal principle; such as every man may reasonably agree to, and such as every man may rightfully be compelled to abide by, and obey. And the whole power of the government must be limited to the maintenance of that single principle. And that one principle is justice. There is no other principle that any man can rightfully enforce upon others, or ought to consent to have enforced against himself. Every man claims the protection of this principle for himself, whether he is willing to accord it to others, or not. Yet such is the inconsistency of human nature, that some men—in fact, many men—who will risk their lives for this principle, when their own liberty or property is at stake, will violate it in the most flagrant manner, if they can thereby obtain arbitrary power over the persons or property of others. We have seen this fact illustrated in this country, through its whole history—especially during the last hundred years—and in the case of many of the most conspicuous persons. And their example and influence have been employed to pervert the whole character of the government. It is against such men, that all others, who desire nothing but justice for themselves, and are willing to unite to secure it for all others, must combine, if we are ever to have justice established for any.

Section IV.

It is self-evident that no number of men, by conspiring, and calling themselves a government, can acquire any rights whatever over other men, or other men’s property, which they had not before, as individuals. And whenever any number [7] of men, calling themselves a government, do anything to another man, or to his property, which they had no right to do as individuals, they thereby declare themselves trespassers, robbers, or murderers, according to the nature of their acts.

Men, as individuals, may rightfully compel each other to obey this one law of justice. And it is the only law which any man can rightfully be compelled, by his fellow men, to obey. All other laws, it is optional with each man to obey, or not, as he may choose. But this one law of justice he may rightfully be compelled to obey; and all the force that is reasonably necessary to compel him, may rightfully be used against him.

But the right of every man to do anything, and everything, which justice does not forbid him to do, is a natural, inherent, inalienable right. It is his right, as against any and all other men, whether they be many, or few. It is a right indispensable to every man’s highest happiness; and to every man’s power of judging and determining for himself what will, and what will not, promote his happiness. Any restriction upon the exercise of this right is a restriction upon his rightful power of providing for, and accomplishing, his own well-being.

Sir, these natural, inherent, inalienable, individual rights are sacred things. They are the only human rights. They are the only rights by which any man can protect his own property, liberty, or life against any one who may be disposed to take it away. Consequently they are not things that any set of either blockheads or villains, calling themselves a government, can rightfully take into their own hands, and dispose of at their pleasure, as they have been accustomed to do in this, and in nearly or quite all other countries.

Section V.

Sir, I repeat that individual rights are the only human rights. Legally speaking, there are no such things as “public rights,” as distinguished from individual rights. Legally speaking, there is no such creature or thing as “the public.” The term “the public” is an utterly vague and indefinite one, applied arbitrarily and at random to a greater or less number of individuals, each and every one of whom have their own separate, individual rights, and none others. And the protection of these separate, individual rights is the one only legitimate purpose, for which anything in the nature of a governing, or coercive, power has a right to exist. And these separate, individual rights all rest upon, and can be ascertained only by, the one science of justice.

Legally speaking, the term “public rights” is as vague and indefinite as are the terms “public health,” “public good,” “public welfare,” and the like. It has no legal meaning, except when used to describe the separate, private, individual rights of a greater or less number of individuals.

In so far as the separate, private, natural rights of individuals are secured, in [8] just so far, and no farther, are the “public rights” secured. In so far as the separate, private, natural rights of individuals are disregarded or violated, in just so far are “public rights” disregarded or violated. Therefore all the pretences of so-called lawmakers, that they are protecting “public rights,” by violating private rights, are sheer and utter contradictions and frauds. They are just as false and absurd as it would be to say that they are protecting the public health, by arbitrarily poisoning and destroying the health of single individuals.

The pretence of the lawmakers, that they are promoting the “public good,” by violating individual “rights,” is just as false and absurd as is the pretence that they are protecting “public rights” by violating “private rights.” Sir, the greatest “public good,” of which any coercive power, calling itself a government, or by any other name, is capable, is the protection of each and every individual in the quiet and peaceful enjoyment and exercise of all his own natural, inherent, inalienable, individual “rights.” This is a “good” that comes home to each and every individual, of whom “the public” is composed. It is also a “good,” which each and every one of these individuals, composing “the public,” can appreciate. It is a “good,” for the loss of which governments can make no compensation whatever. It is a universal and impartial “good,” of the highest importance to each and every human being; and not any such vague, false, and criminal thing as the lawmakers—when violating private rights—tell us they are trying to accomplish, under the name of “the public good.” It is also the only “equal and exact justice,” which you, or anybody else, are capable of securing, or have any occasion to secure, to any human being. Let but this “equal and exact justice” be secured “to all men,” and they will then be abundantly able to take care of themselves, and secure their own highest “good.” Or if any one should ever chance to need anything more than this, he may safely trust to the voluntary kindness of his fellow men to supply it.

It is one of those things not easily accounted for, that men who would scorn to do an injustice to a fellow man, in a private transaction,—who would scorn to usurp any arbitrary dominion over him, or his property,—who would be in the highest degree indignant, if charged with any private injustice,—and who, at a moment’s warning, would take their lives in their hands, to defend their own rights, and redress their own wrongs,—will, the moment they become members of what they call a government, assume that they are absolved from all principles and all obligations that were imperative upon them, as individuals; will assume that they are invested with a right of arbitrary and irresponsible dominion over other men, and other men’s property. Yet they are doing this continually. And all the laws they make are based upon the assumption that they have now become invested with rights that are more than human, and that those, on whom their laws are to operate, have lost even their human rights. They seem to be utterly blind to the fact, that the only reason there can be for their existence as a government, is that [9] they may protect those very “rights,” which they before scrupulously respected, but which they now unscrupulously trample upon.

Section VI.

But you evidently believe nothing of what I have now been saying. You evidently believe that justice is no law at all, unless in cases where the lawmakers may chance to prefer it to any law which they themselves can invent.

You evidently believe that a certain paper, called the constitution, which nobody ever signed, which few persons ever read, which the great body of the people never saw, and as to the meaning of which no two persons were ever agreed, is the supreme law of this land, anything in the law of nature—anything in the natural, inherent, inalienable, individual rights of fifty millions of people—to the contrary notwithstanding.

Did folly, falsehood, absurdity, assumption, or criminality ever reach a higher point than that?

You evidently believe that those great volumes of statutes, which the people at large have never read, nor even seen, and never will read, nor see, but which such men as you and your lawmakers have been manufacturing for nearly a hundred years, to restrain them of their liberty, and deprive them of their natural rights, were all made for their benefit, by men wiser than they—wiser even than justice itself—and having only their welfare at heart!

You evidently believe that the men who made those laws were duly authorized to make them; and that you yourself have been duly authorized to enforce them. But in this you are utterly mistaken. You have not so much as the honest, responsible scratch of one single pen, to justify you in the exercise of the power you have taken upon yourself to exercise. For example, you have no such evidence of your right to take any man’s property for the support of your government, as would be required of you, if you were to claim pay for a single day’s honest labor.

It was once said, in this country, that taxation without consent was robbery. And a seven years’ war was fought to maintain that principle. But if that principle were a true one in behalf of three millions of men, it is an equally true one in behalf of three men, or of one man.

Who are ever taxed? Individuals only. Who have property that can be taxed? Individuals only. Who can give their consent to be taxed? Individuals only. Who are ever taxed without their consent? Individuals only. Who, then, are robbed, if taxed without their consent? Individuals only.

If taxation without consent is robbery, the United States government has never had, has not now, and is never likely to have, a single honest dollar in its treasury.

[10]

If taxation without consent is not robbery, then any band of robbers have only to declare themselves a government, and all their robberies are legalized.

If any man’s money can be taken by a so-called government, without his own personal consent, all his other rights are taken with it; for with his money the government can, and will, hire soldiers to stand over him, compel him to submit to its arbitrary will, and kill him if he resists.

That your whole claim of a right to any man’s money for the support of your government, without his consent, is the merest farce and fraud, is proved by the fact that you have no such evidence of your right to take it, as would be required of you, by one of your own courts, to prove a debt of five dollars, that might be honestly due you.

You and your lawmakers have no such evidence of your right of dominion over the people of this country, as would be required to prove your right to any material property, that you might have purchased.

When a man parts with any considerable amount of such material property as he has a natural right to part with,—as, for example, houses, or lands, or food, or clothing, or anything else of much value,—he usually gives, and the purchaser usually demands, some written acknowledgment, receipt, bill of sale, or other evidence, that will prove that he voluntarily parted with it, and that the purchaser is now the real and true owner of it. But you hold that fifty millions of people have voluntarily parted, not only with their natural right of dominion over all their material property, but also with all their natural right of dominion over their own souls and bodies; when not one of them has ever given you a scrap of writing, or even “made his mark,” to that effect.

You have not so much as the honest signature of a single human being, granting to you or your lawmakers any right of dominion whatever over him or his property.

You hold your place only by a title, which, on no just principle of law or reason, is worth a straw. And all who are associated with you in the government—whether they be called senators, representatives, judges, executive officers, or what not—all hold their places, directly or indirectly, only by the same worthless title. That title is nothing more nor less than votes given in secret (by secret ballot), by not more than one-fifth of the whole population. These votes were given in secret solely because those who gave them did not dare to make themselves personally responsible, either for their own acts, or the acts of their agents, the lawmakers, judges, etc.

These voters, having given their votes in secret (by secret ballot), have put it out of your power—and out of the power of all others associated with you in the government—to designate your principals individually. That is to say, you have no legal knowledge as to who voted for you, or who voted against you. And being unable to designate your principals individually, you have no right to say that you [11] have any principals. And having no right to say that you have any principals, you are bound, on every just principle of law or reason, to confess that you are mere usurpers, making laws, and enforcing them, upon your own authority alone.

A secret ballot makes a secret government; and a secret government is nothing else than a government by conspiracy. And a government by conspiracy is the only government we now have.

You say that “every voter exercises a public trust.”

Who appointed him to that trust? Nobody. He simply usurped the power; he never accepted the trust. And because he usurped the power, he dares exercise it only in secret. Not one of all the ten millions of voters, who helped to place you in power, would have dared to do so, if he had known that he was to be held personally responsible, before any just tribunal, for the acts of those for whom he voted.

Inasmuch as all the votes, given for you and your lawmakers, were given in secret, all that you and they can say, in support of your authority as rulers, is that you venture upon your acts as lawmakers, etc., not because you have any open, authentic, written, legitimate authority granted you by any human being,—for you can show nothing of the kind,—but only because, from certain reports made to you of votes given in secret, you have reason to believe that you have at your backs a secret association strong enough to sustain you by force, in case your authority should be resisted.

Is there a government on earth that rests upon a more false, absurd, or tyrannical basis than that?

Section VII.

But the falsehood and absurdity of your whole system of government do not result solely from the fact that it rests wholly upon votes given in secret, or by men who take care to avoid all personal responsibility for their own acts, or the acts of their agents. On the contrary, if every man, woman, and child in the United States had openly signed, sealed, and delivered to you and your associates, a written document, purporting to invest you with all the legislative, judicial, and executive powers that you now exercise, they would not thereby have given you the slightest legitimate authority. Such a contract, purporting to surrender into your hands all their natural rights of person and property, to be disposed of at your pleasure or discretion, would have been simply an absurd and void contract, giving you no real authority whatever.

It is a natural impossibility for any man to make a binding contract, by which he shall surrender to others a single one of what are commonly called his “natural, inherent, inalienable rights.”

It is a natural impossibility for any man to make a binding contract, that shall invest others with any right whatever of arbitrary, irresponsible dominion over him.

[12]

The right of arbitrary, irresponsible dominion is the right of property; and the right of property is the right of arbitrary, irresponsible dominion. The two are identical. There is no difference between them. Neither can exist without the other. If, therefore, our so-called lawmakers really have that right of arbitrary, irresponsible dominion over us, which they claim to have, and which they habitually exercise, it must be because they own us as property. If they own us as property, it must be because nature made us their property; for, as no man can sell himself as a slave, we could never make a binding contract that should make us their property—or, what is the same thing, give them any right of arbitrary, irresponsible dominion over us.

As a lawyer, you certainly ought to know that all this is true.

Section VIII.

Sir, consider, for a moment, what an utterly false, absurd, ridiculous, and criminal government we now have.

It all rests upon the false, ridiculous, and utterly groundless assumption, that fifty millions of people not only could voluntarily surrender, but actually have voluntarily surrendered, all their natural rights, as human beings, into the custody of some four hundred men, called lawmakers, judges, etc., who are to be held utterly irresponsible for the disposal they may make of them.*

The only right, which any individual is supposed to retain, or possess, under the government, is a purely fictitious one,—one that nature never gave him,—to wit, his right (so-called), as one of some ten millions of male adults, to give away, by his vote, not only all his own natural, inherent, inalienable, human rights, but also all the natural, inherent, inalienable, human rights of forty millions of other human beings—that is, women and children.

To suppose that any one of all these ten millions of male adults would voluntarily surrender a single one of all his natural, inherent, inalienable, human rights into the hands of irresponsible men, is an absurdity; because, first, he has no [13] power to do so, any contract he may make for that purpose being absurd, and necessarily void; and, secondly, because he can have no rational motive for doing so. To suppose him to do so, is to suppose him to be an idiot, incapable of making any rational and obligatory contract. It is to suppose he would voluntarily give away everything in life that was of value to himself, and get nothing in return. To suppose that he would attempt to give away all the natural rights of other persons—that is, the women and children—as well as his own, is to suppose him to attempt to do something that he has no right, or power, to do. It is to suppose him to be both a villain and a fool.

And yet this government now rests wholly upon the assumption that some ten millions of male adults—men supposed to be compos mentis—have not only attempted to do, but have actually succeeded in doing, these absurd and impossible things.

It cannot be said that men put all their rights into the hands of the government, in order to have them protected; because there can be no such thing as a man’s being protected in his rights, any longer than he is allowed to retain them in his own possession. The only possible way, in which any man can be protected in his rights, is to protect him in his own actual possession and exercise of them. And yet our government is absurd enough to assume that a man can be protected in his rights, after he has surrendered them altogether into other hands than his own.

This is just as absurd as it would be to assume that a man had given himself away as a slave, in order to be protected in the enjoyment of his liberty.

A man wants his rights protected, solely that he himself may possess and use them, and have the full benefit of them. But if he is compelled to give them up to somebody else,—to a government, so-called, or to any body else,—he ceases to have any rights of his own to be protected.

To say, as the advocates of our government do, that a man must give up some of his natural rights, to a government, in order to have the rest of them protected—the government being all the while the sole and irresponsible judge as to what rights he does give up, and what he retains, and what are to be protected—is to say that he gives up all the rights that the government chooses, at any time, to assume that he has given up; and that he retains none, and is to be protected in none, except such as the government shall, at all times, see fit to protect, and to permit him to retain. This is to suppose that he has retained no rights at all, that he can, at any time, claim as his own, as against the government. It is to say that he has really given up every right, and reserved none.

For a still further reason, it is absurd to say that a man must give up some of his rights to a government, in order that government may protect him in the rest. That reason is, that every right he gives up diminishes his own power of self-protection, and makes it so much more difficult for the government to protect him. And yet our government says a man must give up all his rights, in order that it [14] may protect him. It might just as well be said that a man must consent to be bound hand and foot, in order to enable a government, or his friends, to protect him against an enemy. Leave him in full possession of his limbs, and of all his powers, and he will do more for his own protection than he otherwise could, and will have less need of protection from a government, or any other source.

Finally, if a man, who is compos mentis, wants any outside protection for his rights, he is perfectly competent to make his own bargain for such as he desires; and other persons have no occasion to thrust their protection upon him, against his will; or to insist, as they now do, that he shall give up all, or any, of his rights to them, in consideration of such protection, and only such protection, as they may afterwards choose to give him.

It is especially noticeable that those persons, who are so impatient to protect other men in their rights that they cannot wait until they are requested to do so, have a somewhat inveterate habit of killing all who do not voluntarily accept their protection; or do not consent to give up to them all their rights in exchange for it.

If A were to go to B, a merchant, and say to him, “Sir, I am a night-watchman, and I insist upon your employing me as such in protecting your property against burglars; and to enable me to do so more effectually, I insist upon your letting me tie your own hands and feet, so that you cannot interfere with me; and also upon your delivering up to me all your keys to your store, your safe, and to all your valuables; and that you authorize me to act solely and fully according to my own will, pleasure, and discretion in the matter; and I demand still further, that you shall give me an absolute guaranty that you will not hold me to any accountability whatever for anything I may do, or for anything that may happen to your goods while they are under my protection; and unless you comply with this proposal, I will now kill you on the spot,”—if A were to say all this to B, B would naturally conclude that A himself was the most impudent and dangerous burglar that he (B) had to fear; and that if he (B) wished to secure his property against burglars, his best way would be to kill A in the first place, and then take his chances against all such other burglars as might come afterwards.

Our government constantly acts the part that is here supposed to be acted by A. And it is just as impudent a scoundrel as A is here supposed to be. It insists that every man shall give up all his rights unreservedly into its custody, and then hold it wholly irresponsible for any disposal it may make of them. And it gives him no alternative but death.

If by putting a bayonet to a man’s breast, and giving him his choice, to die, or be “protected in his rights,” it secures his consent to the latter alternative, it then proclaims itself a free government,—a government resting on consent!

You yourself describe such a government as “the best government ever vouchsafed to man.”

Can you tell me of one that is worse in principle?

[15]

But perhaps you will say that ours is not so bad, in principle, as the others, for the reason that here, once in two, four, or six years, each male adult is permitted to have one vote in ten millions, in choosing the public protectors. Well, if you think that that materially alters the case, I wish you joy of your remarkable discernment.

Section IX.

Sir, if a government is to “do equal and exact justice to all men,” it must do simply that, and nothing more. If it does more than that to any,—that is, if it gives monopolies, privileges, exemptions, bounties, or favors to any,—it can do so only by doing injustice to more or less others. It can give to one only what it takes from others; for it has nothing of its own to give to any one. The best that it can do for all, and the only honest thing it can do for any, is simply to secure to each and every one his own rights,—the rights that nature gave him,—his rights of person, and his rights of property; leaving him, then, to pursue his own interests, and secure his own welfare, by the free and full exercise of his own powers of body and mind; so long as he trespasses upon the equal rights of no other person.

If he desires any favors from any body, he must, I repeat, depend upon the voluntary kindness of such of his fellow men as may be willing to grant them. No government can have any right to grant them; because no government can have a right to take from one man any thing that is his, and give it to another.

If this be the only true idea of an honest government, it is plain that it can have nothing to do with men’s “interests,” “welfare,” or “prosperity,” as distinguished from their “rights.” Being secured in their rights, each and all must take the sole charge of, and have the sole responsibility for, their own “interests,” “welfare,” and “prosperity.”

By simply protecting every man in his rights, a government necessarily keeps open to every one the widest possible field, that he honestly can have, for such industry as he may choose to follow. It also insures him the widest possible field for obtaining such capital as he needs for his industry, and the widest possible markets for the products of his labor. With the possession of these rights, he must be content.

No honest government can go into business with any individuals, be they many, or few. It cannot furnish capital to any, nor prohibit the loaning of capital to any. It can give to no one any special aid to competition; nor protect any one from competition. It must adhere inflexibly to the principle of entire freedom for all honest industry, and all honest traffic. It can do to no one any favor, nor render to any one any assistance, which it withholds from another. It must hold the scales impartially between them; taking no cognizance of any man’s “interests,” “welfare,” or “prosperity,” otherwise than by simply protecting him in his “rights.”

In opposition to this view, lawmakers profess to have weighty duties laid upon [16] them, to promote men’s “interests,” “welfare,” and “prosperity,” as distinguished from their “rights.” They seldom have any thing to say about men’s “rights.” On the contrary, they take it for granted that they are charged with the duty of promoting, superintending, directing, and controlling the “business” of the country. In the performance of this supposed duty, all ideas of individual “rights” are cast aside. Not knowing any way—because there is no way—in which they can impartially promote all men’s “interests,” “welfare,” and “prosperity,” otherwise than by protecting impartially all men’s rights, they boldly proclaim that “individual rights must not be permitted to stand in the way of the public good, the public welfare, and the business interests of the country.”

Substantially all their lawmaking proceeds upon this theory; for there is no other theory, on which they can find any justification whatever for any lawmaking at all. So they proceed to give monopolies, privileges, bounties, grants, loans, etc., etc., to particular persons, or classes of persons; justifying themselves by saying that these privileged persons will “give employment” to the unprivileged; and that this employment, given by the privileged to the unprivileged, will compensate the latter for the loss of their “rights.” And they carry on their lawmaking of this kind to the greatest extent they think is possible, without causing rebellion and revolution, on the part of the injured classes.

Sir, I am sorry to see that you adopt this lawmaking theory to its fullest extent; that although, for once only, and in a dozen words only,—and then merely incidentally,—you describe the government as “a government pledged to do equal and exact justice to all men,” you show, throughout the rest of your address, that you have no thought of abiding by that principle; that you are either utterly ignorant, or utterly regardless, of what that principle requires of you; that the government, so far as your influence goes, is to be given up to the business of lawmaking,—that is, to the business of abolishing justice, and establishing injustice in its place; that you hold it to be the proper duty and function of the government to be constantly looking after men’s “interests,” “welfare,” “prosperity,” etc., etc., as distinguished from their rights; that it must consider men’s “rights” as no guide to the promotion of their “interests”; that it must give favors to some, and withhold the same favors from others; that in order to give these favors to some, it must take from others their rights; that, in reality, it must traffic in both men’s interests and their rights; that it must keep open shop, and sell men’s interests and rights to the highest bidders; and that this is your only plan for promoting “the general welfare,” “the common interest,” etc., etc.

That such is your idea of the constitutional duties and functions of the government, is shown by different parts of your address: but more fully, perhaps, by this:

The large variety of diverse and competing interests subject to federal control, persistently seeking recognition of their claims, need give us no fear that the greatest good of the greatest [17] number will fail to be accomplished, if, in the halls of national legislation, that spirit of amity and mutual concession shall prevail, in which the constitution had its birth. If this involves the surrender or postponement of private interests, and the abandonment of local advantages, compensation will be found in the assurance that thus the common interest is subserved, and the general welfare advanced.

What is all this but saying that the government is not at all an institution for “doing equal and exact justice to all men,” or for the impartial protection of all men’s rights; but that it is its proper business to take sides, for and against, a “large variety of diverse and competing interests”; that it has this “large variety of diverse and competing interests” under its arbitrary “control”; that it can, at its pleasure, make such laws as will give success to some of them, and insure the defeat of others; that these “various, diverse, and competing interests” will be “persistently seeking recognition of their claims . . . . in the halls of national legislation,”—that is, will be “persistently” clamoring for laws to be made in their favor; that, in fact, “the halls of national legislation” are to be mere arenas, into which the government actually invites the advocates and representatives of all the selfish schemes of avarice and ambition that unprincipled men can devise; that these schemes will there be free to “compete” with each other in their corrupt offers for government favor and support; and that it is to be the proper and ordinary business of the lawmakers to listen to all these schemes; to adopt some of them, and sustain them with all the money and power of the government; and to “postpone,” “abandon,” oppose, and defeat all others; it being well known, all the while, that the lawmakers will, individually, favor, or oppose, these various schemes, according to their own irresponsible will, pleasure, and discretion,—that is, according as they can better serve their own personal interests and ambitions by doing the one or the other.

Was a more thorough scheme of national villainy ever invented?

Sir, do you not know that in this conflict, between these “various, diverse, and competing interests,” all ideas of individual “rights”—all ideas of “equal and exact justice to all men”—will be cast to the winds; that the boldest, the strongest, the most fraudulent, the most rapacious, and the most corrupt, men will have control of the government, and make it a mere instrument for plundering the great body of the people?

Your idea of the real character of the government is plainly this: The lawmakers are to assume absolute and irresponsible “control” of all the financial resources, all the legislative, judicial, and executive powers, of the government, and employ them all for the promotion of such schemes of plunder and ambition as they may select from all those that may be submitted to them for their approval; that they are to keep “the halls of national legislation” wide open for the admission of all persons having such schemes to offer; and that they are to grant monopolies, privileges, loans, and bounties to all such of these schemes as they can make [18] subserve their own individual interests and ambitions, and reject or “postpone” all others. And that there is to be no limit to their operations of this kind, except their fear of exciting rebellion and resistance on the part of the plundered classes.

And you are just fool enough to tell us that such a government as this may be relied on to “accomplish the greatest good to the greatest number,” “to subserve the common interest,” and “advance the general welfare,” “if,” only, “in the halls of national legislation, that spirit of amity and mutual concession shall prevail, in which the constitution had its birth.”

You here assume that “the general welfare” is to depend, not upon the free and untrammelled enterprise and industry of the whole people, acting individually, and each enjoying and exercising all his natural rights; but wholly or principally upon the success of such particular schemes as the government may take under its special “control.” And this means that “the general welfare” is to depend, wholly or principally, upon such privileges, monopolies, loans, and bounties as the government may grant to more or less of that “large variety of diverse and competing interests”—that is, schemes—that may be “persistently” pressed upon its attention.

But as you impliedly acknowledge that the government cannot take all these “interests” (schemes) under its “control,” and bestow its favors upon all alike, you concede that some of them must be “surrendered,” “postponed,” or “abandoned”; and that, consequently, the government cannot get on at all, unless, “in the halls of national legislation, that spirit of amity and mutual concession shall prevail, in which the constitution had its birth.”

This “spirit of amity and mutual concession in the halls of legislation,” you explain to mean this: a disposition, on the part of the lawmakers respectively—whose various schemes of plunder cannot all be accomplished, by reason of their being beyond the financial resources of the government, or the endurance of the people—to “surrender” some of them, “postpone” others, and “abandon” others, in order that the general business of robbery may go on to the greatest extent possible, and that each one of the lawmakers may succeed with as many of the schemes he is specially intrusted with, as he can carry through by means of such bargains, for mutual help, as he may be able to make with his fellow lawmakers.

Such is the plan of government, to which you say that you “consecrate” yourself, and “engage your every faculty and effort.”

Was a more shameless avowal ever made?

You cannot claim to be ignorant of what crimes such a government will commit. You have had abundant opportunity to know—and if you have kept your eyes open, you do know—what these schemes of robbery have been in the past; and from these you can judge what they will be in the future.

You know that under such a system, every senator and representative—probably without an exception—will come to the congress as the champion of the dominant scoundrelisms of his own State or district; that he will be elected solely to serve [19] those “interests,” as you call them; that in offering himself as a candidate, he will announce the robbery, or robberies, to which all his efforts will be directed; that he will call these robberies his “policy”; or if he be lost to all decency, he will call them his “principles”; that they will always be such as he thinks will best subserve his own interests, or ambitions; that he will go to “the halls of national legislation” with his head full of plans for making bargains with other lawmakers—as corrupt as himself—for mutual help in carrying their respective schemes.

Such has been the character of our congresses nearly, or quite, from the beginning. It can scarcely be said that there has ever been an honest man in one of them. A man has sometimes gained a reputation for honesty, in his own State or district, by opposing some one or more of the robberies that were proposed by members from other portions of the country. But such a man has seldom, or never, deserved his reputation; for he has, generally, if not always, been the advocate of some one or more schemes of robbery, by which more or less of his own constituents were to profit, and which he knew it would be indispensable that he should advocate, in order to give him votes at home.

If there have ever been any members, who were consistently honest throughout,—who were really in favor of “doing equal and exact justice to all men,”—and, of course, nothing more than that to any,—their numbers have been few; so few as to have left no mark upon the general legislation. They have but constituted the exceptions that proved the rule. If you were now required to name such a lawmaker, I think you would search our history in vain to find him.

That this is no exaggerated description of our national lawmaking, the following facts will prove.

For the first seventy years of the government, one portion of the lawmakers would be satisfied with nothing less than permission to rob one-sixth, or one-seventh, of the whole population, not only of their labor, but even of their right to their own persons. In 1860, this class of lawmakers comprised all the senators and representatives from fifteen, of the then thirty-three, States.*

This body of lawmakers, standing always firmly together, and capable of turning the scale for, or against, any scheme of robbery, in which northern men were interested, but on which northern men were divided,—such as navigation acts, tariffs, bounties, grants, war, peace, etc.,—could purchase immunity for their own crime, by supporting such, and so many, northern crimes—second only to their own in atrocity—as could be mutually agreed on.

[20]

In this way the slaveholders bargained for, and secured, protection for slavery and the slave trade, by consenting to such navigation acts as some of the northern States desired, and to such tariffs on imports—such as iron, coal, wool, woollen goods, etc.,—as should enable the home producers of similar articles to make fortunes by robbing everybody else in the prices of their goods.

Another class of lawmakers have been satisfied with nothing less than such a monopoly of money, as should enable the holders of it to suppress, as far as possible, all industry and traffic, except such as they themselves should control; such a monopoly of money as would put it wholly out of the power of the great body of wealth-producers to hire the capital needed for their industries; and thus compel them—especially the mechanical portions of them—by the alternative of starvation—to sell their labor to the monopolists of money, for just such prices as these latter should choose to pay. This monopoly of money has also given, to the holders of it, a control, so nearly absolute, of all industry—agricultural as well as mechanical—and all traffic, as has enabled them to plunder all the producing classes in the prices of their labor, or the products of their labor.

Have you been blind, all these years, to the existence, or the effects, of this monopoly of money?

Still another class of lawmakers have demanded unequal taxation on the various kinds of home property, that are subject to taxation; such unequal taxation as would throw heavy burdens upon some kinds of property, and very light burdens, or no burdens at all, upon other kinds.

And yet another class of lawmakers have demanded great appropriations, or loans, of money, or grants of lands, to enterprises intended to give great wealth to a few, at the expense of everybody else.

These are some of the schemes of downright and outright robbery, which you mildly describe as “the large variety of diverse and competing interests, subject to federal control, persistently seeking recognition of their claims . . . . . in the halls of national legislation”; and each having its champions and representatives among the lawmakers.

You know that all, or very nearly all, the legislation of congress is devoted to these various schemes of robbery; and that little, or no, legislation goes through, except by means of such bargains as these lawmakers may enter into with each other, for mutual support of their respective robberies. And yet you have the mendacity, or the stupidity, to tell us that so much of this legislation as does go through, may be relied on to “accomplish the greatest good to the greatest number,” to “subserve the common interest,” and “advance the general welfare.”

And when these schemes of robbery become so numerous, atrocious, and unendurable that they can no longer be reconciled “in the halls of national legislation,” by “surrendering” some of them, “postponing” others, and “abandoning” others, you assume—for such has been the prevailing opinion, and you say nothing to [21] the contrary—that it is the right of the strongest party, or parties, to murder a half million of men, if that be necessary,—and as we once did,—not to secure liberty or justice to any body,—but to compel the weaker of these would-be robbers to submit to all such robberies as the stronger ones may choose to practise upon them.

Section X.

Sir, your idea of the true character of our government is plainly this: you assume that all the natural, inherent, inalienable, individual, human rights of fifty millions of people—all their individual rights to preserve their own lives, and promote their own happiness—have been thrown into one common heap,—into hotchpotch, as the lawyers say: and that this hotchpotch has been given into the hands of some four hundred champion robbers, each of whom has pledged himself to carry off as large a portion of it as possible, to be divided among those men—well known to himself, but who—to save themselves from all responsibility for his acts—have secretly (by secret ballot) appointed him to be their champion.

Sir, if you had assumed that all the people of this country had thrown all their wealth, all their rights, all their means of living, into hotchpotch; and that this hotchpotch had been given over to four hundred ferocious hounds; and that each of these hounds had been selected and trained to bring to his masters so much of this common plunder as he, in the general fight, or scramble, could get off with, you would scarcely have drawn a more vivid picture of the true character of the government of the United States, than you have done in your inaugural address.

No wonder that you are obliged to confess that such a government can be carried on only “amid the din of party strife”; that it will be influenced—you should have said directed—by “purely partisan zeal”; and that it will be attended by “the animosities of political strife, the bitterness of partisan defeat, and the exultation of partisan triumph.”

What gang of robbers, quarrelling over the division of their plunder, could exhibit a more shameful picture than you thus acknowledge to be shown by the government of the United States?

Sir, nothing of all this “din,” and “strife,” and “animosity,” and “bitterness,” is caused by any attempt, on the part of the government, to simply “do equal and exact justice to all men,”—to simply protect every man impartially in all his natural rights to life, liberty, and property. It is all caused simply and solely by the government’s violation of some men’s “rights,” to promote other men’s “interests.” If you do not know this, you are mentally an object of pity.

Sir, men’s “rights” are always harmonious. That is to say, each man’s “rights” are always consistent and harmonious with each and every other man’s “rights.” But their “interests,” as you estimate them, constantly clash; especially such [22] “interests” as depend on government grants of monopolies, privileges, loans, and bounties. And these “interests,” like the interests of other gamblers, clash with a fury proportioned to the amounts at stake. It is these clashing “interests,” and not any clashing “rights,” that give rise to all the strife you have here depicted, and to all this necessity for “that spirit of amity and mutual concession,” which you hold to be indispensable to the accomplishment of such legislation as you say is necessary to the welfare of the country.

Each and every man’s “rights” being consistent and harmonious with each and every other man’s “rights”; and all men’s rights being immutably fixed, and easily ascertained, by a science that is open to be learned and known by all; a government that does nothing but “equal and exact justice to all men”—that simply gives to every man his own, and nothing more to any—has no cause and no occasion for any “political parties.” What are these “political parties” but standing armies of robbers, each trying to rob the other, and to prevent being itself robbed by the other? A government that seeks only to “do equal and exact justice to all men,” has no cause and no occasion to enlist all the fighting men in the nation in two hostile ranks; to keep them always in battle array, and burning with hatred towards each other. It has no cause and no occasion for any “political warfare,” any “political hostility,” any “political campaigns,” any “political contests,” any “political fights,” any “political defeats,” or any “political triumphs.” It has no cause and no occasion for any of those “political leaders,” so called, whose whole business is to invent new schemes of robbery, and organize the people into opposing bands of robbers; all for their own aggrandizement alone. It has no cause and no occasion for the toleration, or the existence, of that vile horde of political bullies, and swindlers, and blackguards, who enlist on one side or the other, and fight for pay; who, year in and year out, employ their lungs and their ink in spreading lies among ignorant people, to excite their hopes of gain, or their fears of loss, and thus obtain their votes. In short, it has no cause and no occasion for all this “din of party strife,” for all this “purely partisan zeal,” for all “the bitterness of partisan defeat,” for all “the exultation of partisan triumph,” nor, worst of all, for any of “that spirit of amity and mutual concession [by which you evidently mean that readiness, “in the halls of national legislation,” to sacrifice some men’s “rights” to promote other men’s “interests”] in which [you say] the constitution had its birth.”

If the constitution does really, or naturally, give rise to all this “strife,” and require all this “spirit of amity and mutual concession,”—and I do not care now to deny that it does,—so much the worse for the constitution. And so much the worse for all those men who, like yourself, swear to “preserve, protect, and defend it.”

And yet you have the face to make no end of professions, or pretences, that the impelling power, the real motive, in all this robbery and strife, is nothing else [23] than “the service of the people,” “their interests,” “the promotion of their welfare,” “good government,” “government by the people,” “the popular will,” “the general weal,” “the achievements of our national destiny,” “the benefits which our happy form of government can bestow,” “the lasting welfare of the country,” “the priceless benefits of the constitution,” “the greatest good to the greatest number,” “the common interest,” “the general welfare,” “the people’s will,” “the mission of the American people,” “our civil policy,” “the genius of our institutions,” “the needs of our people in their home life,” “the settlement and development of the resources of our vast territory,” “the prosperity of our republic,” “the interests and prosperity of all the people,” “the safety and confidence of business interests,” “making the wage of labor sure and steady,” “a due regard to the interests of capital invested and workingmen employed in American industries,” “reform in the administration of the government,” “the application of business principles to public affairs,” “the constant and ever varying wants of an active and enterprising population,” “a firm determination to secure to all the people of the land the full benefits of the best form of government ever vouchsafed to man,” “the blessings of our national life,” etc., etc.

Sir, what is the use of such a deluge of unmeaning words, unless it be to gloss over, and, if possible, hide, the true character of the acts of the government?

Such “generalities” as these do not even “glitter.” They are only the stale phrases of the demagogue, who wishes to appear to promise everything, but commits himself to nothing. Or else they are the senseless talk of a mere political parrot, who repeats words he has been taught to utter, without knowing their meaning. At best, they are the mere gibberish of a man destitute of all political ideas, but who imagines that “good government,” “the general welfare,” “the common interest,” “the best form of government ever vouchsafed to man,” etc., etc., must be very good things, if anybody can ever find out what they are. There is nothing definite, nothing real, nothing tangible, nothing honest, about them. Yet they constitute your entire stock in trade. In resorting to them—in holding them up to public gaze as comprising your political creed—you assume that they have a meaning; that they are matters of overruling importance; that they require the action of an omnipotent, irresponsible, lawmaking government; that all these “interests” must be represented, and can be secured, only “in the halls of national legislation”; and by such political hounds as have been selected and trained, and sent there, solely that they may bring off, to their respective masters, as much as possible of the public plunder they hold in their hands; that is, as much as possible of the earnings of all the honest wealth-producers of the country.

And when these masters count up the spoils that their hounds have thus brought home to them, they set up a corresponding shout that “the public prosperity,” “the common interest,” and “the general welfare” have been “advanced.” And the scoundrels by whom the work has been accomplished, “in the halls of national [24] legislation,” are trumpeted to the world as “great statesmen.” And you are just stupid enough to be deceived into the belief, or just knave enough to pretend to be deceived into the belief, that all this is really the truth.

One would infer from your address that you think the people of this country incapable of doing anything for themselves, individually; that they would all perish, but for the employment given them by that “large variety of diverse and competing interests”—that is, such purely selfish schemes—as may be “persistently seeking recognition of their claims . . . . . in the halls of national legislation,” and secure for themselves such monopolies and advantages as congress may see fit to grant them.

Instead of your recognizing the right of each and every individual to judge of, and provide for, his own well-being, according to the dictates of his own judgment, and by the free exercise of his own powers of body and mind,—so long as he infringes the equal rights of no other person,—you assume that fifty millions of people, who never saw you, and never will see you, who know almost nothing about you, and care very little about you, are all so weak, ignorant, and degraded as to be humbly and beseechingly looking to you—and to a few more lawmakers (so called) whom they never saw, and never will see, and of whom they know almost nothing—to enlighten, direct, and “control” them in their daily labors to supply their own wants, and promote their own happiness!

You thus assume that these fifty millions of people are so debased, mentally and morally, that they look upon you and your associate lawmakers as their earthly gods, holding their destinies in your hands, and anxiously studying their welfare; instead of looking upon you—as most of you certainly ought to be looked upon—as a mere cabal of ignorant, selfish, ambitious, rapacious, and unprincipled men, who know very little, and care to know very little, except how you can get fame, and power, and money, by trampling upon other men’s rights, and robbing them of the fruits of their labor.

Assuming yourself to be the greatest of these gods, charged with the “welfare” of fifty millions of people, you enter upon the mighty task with all the mock solemnity, and ridiculous grandiloquence, of a man ignorant enough to imagine that he is really performing a solemn duty, and doing an immense public service, instead of simply making a fool of himself. Thus you say:

Fellow citizens: In the presence of this vast assemblage of my countrymen, I am about to supplement and seal, by the oath which I shall take, the manifestation of the will of a great and free people. In the exercise of their power and right of self-government, they have committed to one of their fellow citizens a supreme and sacred trust, and he here consecrates himself to their service. This impressive ceremony adds little to the solemn sense of responsibility with which I contemplate the duty I owe to all the people of the land. Nothing can relieve me from anxiety lest by any act of mine their interests [not their rights] may suffer, and nothing is needed to strengthen my resolution to engage every faculty and effort in the [25] promotion of their welfare. [Not in “doing equal and exact justice to all men.” After having once described the government as one “pledged to do equal and exact justice to all men,” you drop that subject entirely, and wander off into “interests,” and “welfare,” and an astonishing number of other equally unmeaning things.]

Sir, you would have no occasion to take all this tremendous labor and responsibility upon yourself, if you and your lawmakers would but keep your hands off the “rights” of your “countrymen.” Your “countrymen” would be perfectly competent to take care of their own “interests,” and provide for their own “welfare,” if their hands were not tied, and their powers crippled, by such fetters as men like you and your lawmakers have fastened upon them.

Do you know so little of your “countrymen,” that you need to be told that their own strength and skill must be their sole reliance for their own well-being? Or that they are abundantly able, and willing, and anxious above all other things, to supply their own “needs in their home life,” and secure their own “welfare”? Or that they would do it, not only without jar or friction, but as their highest duty and pleasure, if their powers were not manacled by the absurd and villainous laws you propose to execute upon them? Are you so stupid as to imagine that putting chains on men’s hands, and fetters on their feet, and insurmountable obstacles in their paths, is the way to supply their “needs,” and promote their “welfare”? Do you think your “countrymen” need to be told, either by yourself, or by any such gang of ignorant or unprincipled men as all lawmakers are, what to do, and what not to do, to supply their own “needs in their home life”? Do they not know how to grow their own food, make their own clothing, build their own houses, print their own books, acquire all the knowledge, and create all the wealth, they desire, without being domineered over, and thwarted in all their efforts, by any set of either fools or villains, who may call themselves their lawmakers? And do you think they will never get their eyes open to see what blockheads, or impostors, you and your lawmakers are? Do they not now—at least so far as you will permit them to do it—grow their own food, build their own houses, make their own clothing, print their own books? Do they not make all the scientific discoveries and mechanical inventions, by which all wealth is created? Or are all these things done by “the government”? Are you an idiot, that you can talk as you do, about what you and your lawmakers are doing to provide for the real wants, and promote the real “welfare,” of fifty millions of people?

Section XI.

But perhaps the most brilliant idea in your whole address, is this:

Every citizen owes the country a vigilant watch and close scrutiny of its public servants, and a fair and reasonable estimate of their fidelity and usefulness. Thus is the people’s will [26] impressed upon the whole framework of our civil policy, municipal, State, and federal; and this is the price of our liberty, and the inspiration of our faith in the republic.

The essential parts of this declaration are these:

“Every citizen owes the country a vigilant watch and close scrutiny of its public servants, . . . . . and this is the price of our liberty.”

Who are these “public servants,” that need all this watching? Evidently they are the lawmakers, and the lawmakers only. They are not only the chief “public servants,” but they are absolute masters of all the other “public servants.” These other “public servants,” judicial and executive,—the courts, the army, the navy, the collectors of taxes, etc., etc.,—have no function whatever, except that of simple obedience to the lawmakers. They are appointed, paid, and have their duties prescribed to them, by the lawmakers; and are made responsible only to the lawmakers. They are mere puppets in the hands of the lawmakers. Clearly, then, the lawmakers are the only ones we have any occasion to watch.

Your declaration, therefore, amounts, practically, to this, and this only:

Every citizen owes the country a vigilant watch and close scrutiny of ITS LAWMAKERS, . . . . . and this is the price of our liberty.

Sir, your declaration is so far true, as that all the danger to “our liberty” comes solely from the lawmakers.

And why are the lawmakers dangerous to “our liberty”? Because it is a natural impossibility that they can make any law—that is, any law of their own invention—that does not violate “our liberty.”

The law of justice is the one only law that does not violate “our liberty.” And that is not a law that was made by the lawmakers. It existed before they were born, and will exist after they are dead. It derives not one particle of its authority from any commands of theirs. It is, therefore, in no sense, one of their laws. Only laws of their own invention are their laws. And as it is naturally impossible that they can invent any law of their own, that shall not conflict with the law of justice, it is naturally impossible that they can make a law—that is, a law of their own invention—that shall not violate “our liberty.”

The law of justice is the precise measure, and the only precise measure, of the rightful “liberty” of each and every human being. Any law—made by lawmakers—that should give to any man more liberty than is given him by the law of justice, would be a license to commit an injustice upon one or more other persons. On the other hand, any law—made by lawmakers—that should take from any human being any “liberty” that is given him by the law of justice, would be taking from him a part of his own rightful “liberty.”

Inasmuch, then, as every possible law, that can be made by lawmakers, must either give to some one or more persons more “liberty” than the law of nature—or the law of justice—gives them, and more “liberty” than is consistent with the natural and equal “liberty” of all other persons; or else must take from some one [27] or more persons some portion of that “liberty” which the law of nature—or the law of justice—gives to every human being, it is inevitable that every law, that can be made by lawmakers, must be a violation of the natural and rightful “liberty” of some one or more persons.

Therefore the very idea of a lawmaking government—a government that is to make laws of its own invention—is necessarily in direct and inevitable conflict with “our liberty.” In fact, the whole, sole, and only real purpose of any lawmaking government whatever is to take from some one or more persons their “liberty.” Consequently the only way in which all men can preserve their “liberty,” is not to have any lawmaking government at all.

We have been told, time out of mind, that “Eternal vigilance is the price of liberty.” But this admonition, by reason of its indefiniteness, has heretofore fallen dead upon the popular mind. It, in reality, tells us nothing that we need to know, to enable us to preserve “our liberty.” It does not even tell us what “our liberty” is, or how, or when, or through whom, it is endangered, or destroyed.

1. It does not tell us that individual liberty is the only human liberty. It does not tell us that “national liberty,” “political liberty,” “republican liberty,” “democratic liberty,” “constitutional liberty,” “liberty under law,” and all the other kinds of liberty that men have ever invented, and with which tyrants, as well as demagogues, have amused and cheated the ignorant, are not liberty at all, unless in so far as they may, under certain circumstances, have chanced to contribute something to, or given some impulse toward, individual liberty.

2. It does not tell us that individual liberty means freedom from all compulsion to do anything whatever, except what justice requires us to do, and freedom to do everything whatever that justice permits us to do. It does not tell us that individual liberty means freedom from all human restraint or coercion whatsoever, so long as we “live honestly, hurt nobody, and give to every one his due.”

3. It does not tell us that there is any science of liberty; any science, which every man may learn, and by which every man may know, what is, and what is not, his own, and every other man’s, rightful “liberty.”

4. It does not tell us that this right of individual liberty rests upon an immutable, natural principle, which no human power can make, unmake, or alter; nor that all human authority, that claims to set it aside, or modify it, is nothing but falsehood, absurdity, usurpation, tyranny, and crime.

5. It does not tell us that this right of individual liberty is a natural, inherent, inalienable right; that therefore no man can part with it, or delegate it to another, if he would; and that, consequently, all the claims that have ever been made, by governments, priests, or any other powers, that individuals have voluntarily surrendered, or “delegated,” their liberty to others, are all impostures and frauds.

6. It does not tell us that all human laws, so called, and all human lawmaking,—all commands, either by one man, or any number of men, calling themselves a [28] government, or by any other name—requiring any individual to do this, or forbidding him to do that—so long as he “lives honestly, hurts no one, and gives to every one his due”—are all false and tyrannical assumptions of a right of authority and dominion over him; are all violations of his natural, inherent, inalienable, rightful, individual liberty; and, as such, are to be resented and resisted to the utmost, by every one who does not choose to be a slave.

7. And, finally, it does not tell us that all lawmaking governments whatsoever—whether called monarchies, aristocracies, republics, democracies, or by any other name—are all alike violations of men’s natural and rightful liberty.

We can now see why lawmakers are the only enemies, from whom “our liberty” has anything to fear, or whom we have any occasion to watch. They are to be watched, because they claim the right to abolish justice, and establish injustice in its stead; because they claim the right to command us to do things which justice does not require us to do, and to forbid us to do things which justice permits us to do; because they deny our right to be, individually, and absolutely, our own masters and owners, so long as we obey the one law of justice towards all other persons; because they claim to be our masters, and that their commands, as such, are authoritative and binding upon us as law; and that they may rightfully compel us to obey them.

“Our liberty” is in danger only from the lawmakers, because it is only through the agency of lawmakers, that anybody pretends to be able to take away “our liberty.” It is only the lawmakers that claim to be above all responsibility for taking away “our liberty.” Lawmakers are the only ones who are impudent enough to assert for themselves the right to take away “our liberty.” They are the only ones who are impudent enough to tell us that we have voluntarily surrendered “our liberty” into their hands. They are the only ones who have the insolent condescension to tell us that, in consideration of our having surrendered into their hands “our liberty,” and all our natural, inherent, inalienable rights as human beings, they are disposed to give us, in return, “good government,” “the best form of government ever vouchsafed to man”; to “protect” us, to provide for our “welfare,” to promote our “interests,” etc., etc.

And yet you are just blockhead enough to tell us that if “Every citizen”—fifty millions and more of them—will but keep “a vigilant watch and close scrutiny” upon these lawmakers, “our liberty” may be preserved!

Don’t you think, sir, that you are really the wisest man that ever told “a great and free people” how they could preserve “their liberty”?

To be entirely candid, don’t you think, sir, that a surer way of preserving “our liberty” would be to have no lawmakers at all?

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Section XII.

But, in spite of all I have said, or, perhaps, can say, you will probably persist in your idea that the world needs a great deal of lawmaking; that mankind in general are not entitled to have any will, choice, judgment, or conscience of their own; that, if not very wicked, they are at least very ignorant and stupid; that they know very little of what is for their own good, or how to promote their own “interests,” “welfare,” or “prosperity”; that it is therefore necessary that they should be put under guardianship to lawmakers; that these lawmakers, being a very superior race of beings,—wise beyond the rest of their species,—and entirely free from all those selfish passions which tempt common mortals to do wrong,—must be intrusted with absolute and irresponsible dominion over the less favored of their kind; must prescribe to the latter, authoritatively, what they may, and may not, do; and, in general, manage the affairs of this world according to their discretion, free of all accountability to any human tribunals.

And you seem to be perfectly confident that, under this absolute and irresponsible dominion of the lawmakers, the affairs of this world will be rightly managed; that the “interests,” “welfare,” and “prosperity” of “a great and free people” will be properly attended to; that “the greatest good of the greatest number” will be accomplished, etc., etc.

And yet you hold that all this lawmaking, and all this subjection of the great body of the people to the arbitrary, irresponsible dominion of the lawmakers, will not interfere at all with “our liberty,” if only “every citizen” will but keep “a vigilant watch and close scrutiny” of the lawmakers.

Well, perhaps this is all so; although this subjection to the arbitrary will of any man, or body of men, whatever, and under any pretence whatever, seems, on the face of it, to be much more like slavery, than it does like “liberty.”

If, therefore, you really intend to continue this system of lawmaking, it seems indispensable that you should explain to us what you mean by the term “our liberty.”

So far as your address gives us any light on the subject, you evidently mean, by the term “our liberty,” just such, and only such, “liberty,” as the lawmakers may see fit to allow us to have.

You seem to have no conception of any other “liberty” whatever.

You give us no idea of any other “liberty” that we can secure to ourselves, even though “every citizen”—fifty millions and more of them—shall all keep “a vigilant watch and close scrutiny” upon the lawmakers.

Now, inasmuch as the human race always have had all the “liberty” their lawmakers have seen fit to permit them to have; and inasmuch as, under your system of lawmaking, they always will have as much “liberty” as their lawmakers shall see fit to give them; and inasmuch as you apparently concede the right, which the [30] lawmakers have always claimed, of killing all those who are not content with so much “liberty” as their lawmakers have seen fit to allow them,—it seems very plain that you have not added anything to our stock of knowledge on the subject of “our liberty.”

Leaving us thus, as you do, in as great darkness as we ever were, on this all-important subject of “our liberty,” I think you ought to submit patiently to a little questioning on the part of those of us, who feel that all this lawmaking—each and every separate particle of it—is a violation of “our liberty.”

Will you, therefore, please tell us whether any, and, if any, how much, of that natural liberty—of that natural, inherent, inalienable, individual right to liberty—with which it has generally been supposed that God, or Nature, has endowed every human being, will be left to us, if the lawmakers are to continue, as you would have them do, the exercise of their arbitrary, irresponsible dominion over us?

Are you prepared to answer that question?

No. You appear to have never given a thought to any such question as that.

I will therefore answer it for you.

And my answer is, that from the moment it is conceded that any man, or body of men, whatever, under any pretence whatever, have the right to make laws of their own invention, and compel other men to obey them, every vestige of man’s natural and rightful liberty is denied him.

That this is so is proved by the fact that all a man’s natural rights stand upon one and the same basis, viz., that they are the gift of God, or Nature, to him, as an individual, for his own uses, and for his own happiness. If any one of these natural rights may be arbitrarily taken from him by other men, all of them may be taken from him on the same reason. No one of these rights is any more sacred or inviolable in its nature, than are all the others. The denial of any one of these rights is therefore equivalent to a denial of all the others. The violation of any one of these rights, by lawmakers, is equivalent to the assertion of a right to violate all of them.

Plainly, unless all a man’s natural rights are inviolable by lawmakers, none of them are. It is an absurdity to say that a man has any rights of his own, if other men, whether calling themselves a government, or by any other name, have the right to take them from him, without his consent. Therefore the very idea of a lawmaking government necessarily implies a denial of all such things as individual liberty, or individual rights.

From this statement it does not follow that every lawmaking government will, in practice, take from every man all his natural rights. It will do as it pleases about it. It will take some, leaving him to enjoy others, just as its own pleasure or discretion shall dictate at the time. It would defeat its own ends, if it were wantonly to take away all his natural rights,—as, for example, his right to live, and to breathe,—for then he would be dead, and the government could then get [31] nothing more out of him. The most tyrannical government will, therefore, if it have any sense, leave its victims enough liberty to enable them to provide for their own subsistence, to pay their taxes, and to render such military or other service as the government may have need of. But it will do this for its own good, and not for theirs. In allowing them this liberty, it does not at all recognize their right to it, but only consults its own interests.

Now, sir, this is the real character of the government of the United States, as it is of all other lawmaking governments. There is not a single human right, which the government of the United States recognizes as inviolable. It tramples upon any and every individual right, whenever its own will, pleasure, or discretion shall so dictate. It takes men’s property, liberty, and lives whenever it can serve its own purposes by doing so.

All these things prove that the government does not exist at all for the protection of men’s rights; but that it absolutely denies to the people any rights, or any liberty, whatever, except such as it shall see fit to permit them to have for the time being. It virtually declares that it does not itself exist at all for the good of the people, but that the people exist solely for the use of the government.

All these things prove that the government is not one voluntarily established and sustained by the people, for the protection of their natural, inherent, individual rights, but that it is merely a government of usurpers, robbers, and tyrants, who claim to own the people as their slaves, and claim the right to dispose of them, and their property, at their (the usurpers’) pleasure or discretion.

Now, sir, since you may be disposed to deny that such is the real character of the government, I propose to prove it, by evidences so numerous and conclusive that you cannot dispute them.

My proposition, then, is, that there is not a single natural, human right, that the government of the United States recognizes as inviolable; that there is not a single natural, human right, that it hesitates to trample under foot, whenever it thinks it can promote its own interests by doing so.

The proofs of this proposition are so numerous, that only a few of the most important can here be enumerated.

1. The government does not even recognize a man’s natural right to his own life. If it have need of him, for the maintenance of its power, it takes him, against his will (conscripts him), and puts him before the cannon’s mouth, to be blown in pieces, as if he were a mere senseless thing, having no more rights than if he were a shell, a canister, or a torpedo. It considers him simply as so much senseless war material, to be consumed, expended, and destroyed for the maintenance of its power. It no more recognizes his right to have anything to say in the matter, than if he were but so much weight of powder or ball. It does not recognize him at all as a human being, having any rights whatever of his own, but only as an instrument, a weapon, or a machine, to be used in killing other men.

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2. The government not only denies a man’s right, as a moral human being, to have any will, any judgment, or any conscience of his own, as to whether he himself will be killed in battle, but it equally denies his right to have any will, any judgment, or any conscience of his own, as a moral human being, as to whether he shall be used as a mere weapon for killing other men. If he refuses to kill any, or all, other men, whom it commands him to kill, it takes his own life, as unceremoniously as if he were but a dog.

Is it possible to conceive of a more complete denial of all a man’s natural, human rights, than is the denial of his right to have any will, judgment, or conscience of his own, either as to his being killed himself, or as to his being used as a mere weapon for killing other men?

3. But in still another way, than by its conscriptions, the government denies a man’s right to any will, choice, judgment, or conscience of his own, in regard either to being killed himself, or used as a weapon in its hands for killing other people.

If, in private life, a man enters into a perfectly voluntary agreement to work for another, at some innocent and useful labor, for a day, a week, a month, or a year, he cannot lawfully be compelled to fulfil that contract; because such compulsion would be an acknowledgment of his right to sell his own liberty. And this is what no one can do.

This right of personal liberty is inalienable. No man can sell it, or transfer it to another; or give to another any right of arbitrary dominion over him. All contracts for such a purpose are absurd and void contracts, that no man can rightfully be compelled to fulfil.

But when a deluded or ignorant young man has once been enticed into a contract to kill others, and to take his chances of being killed himself, in the service of the government, for any given number of years, the government holds that such a contract to sell his liberty, his judgment, his conscience, and his life, is a valid and binding contract; and that if he fails to fulfil it, he may rightfully be shot.

All these things prove that the government recognizes no right of the individual, to his own life, or liberty, or to the exercise of his own will, judgment, or conscience, in regard to his killing his fellow-men, or to being killed himself, if the government sees fit to use him as mere war material, in maintaining its arbitrary dominion over other human beings.

4. The government recognizes no such thing as any natural right of property, on the part of individuals.

This is proved by the fact that it takes, for its own uses, any and every man’s property—when it pleases, and as much of it as it pleases—without obtaining, or even asking, his consent.

This taking of a man’s property, without his consent, is a denial of his right of property; for the right of property is the right of supreme, absolute, and irresponsible dominion over anything that is naturally a subject of property,—that is, of [33] ownership. It is a right against all the world. And this right of property—this right of supreme, absolute, and irresponsible dominion over anything that is naturally a subject of ownership—is subject only to this qualification, viz., that each man must so use his own, as not to injure another.

If A uses his own property so as to injure the person or property of B, his own property may rightfully be taken to any extent that is necessary to make reparation for the wrong he has done.

This is the only qualification to which the natural right of property is subject.

When, therefore, a government takes a man’s property, for its own support, or for its own uses, without his consent, it practically denies his right of property altogether; for it practically asserts that its right of dominion is superior to his.

No man can be said to have any right of property at all, in any thing—that is, any right of supreme, absolute, and irresponsible dominion over any thing—of which any other men may rightfully deprive him at their pleasure.

Now, the government of the United States, in asserting its right to take at pleasure the property of individuals, without their consent, virtually denies their right of property altogether, because it asserts that its right of dominion over it, is superior to theirs.

5. The government denies the natural right of human beings to live on this planet. This it does by denying their natural right to those things that are indispensable to the maintenance of life. It says that, for every thing necessary to the maintenance of life, they must have a special permit from the government; and that the government cannot be required to grant them any other means of living than it chooses to grant them.

All this is shown as follows, viz.:

The government denies the natural right of individuals to take possession of wilderness land, and hold and cultivate it for their own subsistence.

It asserts that wilderness land is the property of the government; and that individuals have no right to take possession of, or cultivate, it, unless by special grant of the government. And if an individual attempts to exercise this natural right, the government punishes him as a trespasser and a criminal.

The government has no more right to claim the ownership of wilderness lands, than it has to claim the ownership of the sunshine, the water, or the atmosphere. And it has no more right to punish a man for taking possession of wilderness land, and cultivating it, without the consent of the government, than it has to punish him for breathing the air, drinking the water, or enjoying the sunshine, without a special grant from the government.

In thus asserting the government’s right of property in wilderness land, and in denying men’s right to take possession of and cultivate it, except on first obtaining a grant from the government,—which grant the government may withhold if it pleases,—the government plainly denies the natural right of men to live on this [34] planet, by denying their natural right to the means that are indispensable to their procuring the food that is necessary for supporting life.

In asserting its right of arbitrary dominion over that natural wealth that is indispensable to the support of human life, it asserts its right to withhold that wealth from those whose lives are dependent upon it. In this way it denies the natural right of human beings to live on the planet. It asserts that government owns the planet, and that men have no right to live on it, except by first getting a permit from the government.

This denial of men’s natural right to take possession of and cultivate wilderness land is not altered at all by the fact that the government consents to sell as much land as it thinks it expedient or profitable to sell; nor by the fact that, in certain cases, it gives outright certain lands to certain persons. Notwithstanding these sales and gifts, the fact remains that the government claims the original ownership of the lands; and thus denies the natural right of individuals to take possession of and cultivate them. In denying this natural right of individuals, it denies their natural right to live on the earth; and asserts that they have no other right to life than the government, by its own mere will, pleasure, and discretion, may see fit to grant them.

In thus denying man’s natural right to life, it of course denies every other natural right of human beings; and asserts that they have no natural right to anything; but that, for all other things, as well as for life itself, they must depend wholly upon the good pleasure and discretion of the government.

Section XIII.

In still another way, the government denies men’s natural right to life. And that is by denying their natural right to make any of those contracts with each other, for buying and selling, borrowing and lending, giving and receiving, property, which are necessary, if men are to exist in any considerable numbers on the earth.

Even the few savages, who contrive to live, mostly or wholly, by hunting, fishing, and gathering wild fruits, without cultivating the earth, and almost wholly without the use of tools or machinery, are yet, at times, necessitated to buy and sell, borrow and lend, give and receive, articles of food, if no others, as their only means of preserving their lives. But, in civilized life, where but a small portion of men’s labor is necessary for the production of food, and they employ themselves in an almost infinite variety of industries, and in the production of an almost infinite variety of commodities, it would be impossible for them to live, if they were wholly prohibited from buying and selling, borrowing and lending, giving and receiving, the products of each other’s labor.

Yet the government of the United States—either acting separately, or jointly [35] with the State governments—has heretofore constantly denied, and still constantly denies, the natural right of the people, as individuals, to make their own contracts, for such buying and selling, borrowing and lending, and giving and receiving, such commodities as they produce for each other’s uses.

I repeat that both the national and State governments have constantly denied the natural right of individuals to make their own contracts. They have done this, sometimes by arbitrarily forbidding them to make particular contracts, and sometimes by arbitrarily qualifying the obligations of particular contracts, when the contracts themselves were naturally and intrinsically as just and lawful as any others that men ever enter into; and were, consequently, such as men have as perfect a natural right to make, as they have to make any of those contracts which they are permitted to make.

The laws arbitrarily prohibiting, or arbitrarily qualifying, certain contracts, that are naturally and intrinsically just and lawful, are so numerous, and so well known, that they need not all be enumerated here. But any and all such prohibitions, or qualifications, are a denial of men’s natural right to make their own contracts. They are a denial of men’s right to make any contracts whatever, except such as the governments shall see fit to permit them to make.

It is the natural right of any and all human beings, who are mentally competent to make reasonable contracts, to make any and every possible contract, that is naturally and intrinsically just and honest, for buying and selling, borrowing and lending, giving and receiving, any and all possible commodities, that are naturally vendible, loanable, and transferable, and that any two or more individuals may, at any time, without force or fraud, choose to buy and sell, borrow and lend, give and receive, of and to each other.

And it is plainly only by the untrammelled exercise of this natural right, that all the loanable capital, that is required by men’s industries, can be lent and borrowed, or that all the money can be supplied for the purchase and sale of that almost infinite diversity and amount of commodities, that men are capable of producing, and that are to be transferred from the hands of the producers to those of the consumers.

But the government of the United States—and also the governments of the States—utterly deny the natural right of any individuals whatever to make any contracts whatever, for buying and selling, borrowing and lending, giving and receiving, any and all such commodities, as are naturally vendible, loanable, and transferable, and as the producers and consumers of such commodities may wish to buy and sell, borrow and lend, give and receive, of and to each other.

These governments (State and national) deny this natural right of buying and selling, etc., by arbitrarily prohibiting, or qualifying, all such, and so many, of these contracts, as they choose to prohibit, or qualify.

The prohibition, or qualification, of any one of these contracts—that are intrinsically [36] just and lawful—is a denial of all individual natural right to make any of them. For the right to make any and all of them stands on the same grounds of natural law, natural justice, and men’s natural rights. If a government has the right to prohibit, or qualify, any one of these contracts, it has the same right to prohibit, or qualify, all of them. Therefore the assertion, by the government, of a right to prohibit, or qualify, any one of them, is equivalent to a denial of all natural right, on the part of individuals, to make any of them.

The power that has been thus usurped by governments, to arbitrarily prohibit or qualify all contracts that are naturally and intrinsically just and lawful, has been the great, perhaps the greatest, of all the instrumentalities, by which, in this, as in other countries, nearly all the wealth, accumulated by the labor of the many, has been, and is now, transferred into the pockets of the few.

It is by this arbitrary power over contracts, that the monopoly of money is sustained. Few people have any real perception of the power, which this monopoly gives to the holders of it, over the industry and traffic of all other persons. And the one only purpose of the monopoly is to enable the holders of it to rob everybody else in the prices of their labor, and the products of their labor.

The theory, on which the advocates of this monopoly attempt to justify it, is simply this: That it is not at all necessary that money should be a bona fide equivalent of the labor or property that is to be bought with it; that if the government will but specially license a small amount of money, and prohibit all other money, the holders of the licensed money will then be able to buy with it the labor and property of all other persons for a half, a tenth, a hundredth, a thousandth, or a millionth, of what such labor and property are really and truly worth.

David A. Wells, one of the most prominent—perhaps at this time, the most prominent—advocate of the monopoly, in this country, states the theory thus:

A three-cent piece, if it could be divided into a sufficient number of pieces, with each piece capable of being handled, would undoubtedly suffice for doing all the business of the country in the way of facilitating exchanges, if no other better instrumentality was available.—New York Herald, February 13, 1875.

He means here to say, that “a three-cent piece” contains as much real, true, and natural market value, as it would be necessary that all the money of the country should have, if the government would but prohibit all other money; that is, if the government, by its arbitrary legislative power, would but make all other and better money unavailable.

And this is the theory, on which John Locke, David Hume, Adam Smith, David Ricardo, J. R. McCulloch, and John Stuart Mill, in England, and Amasa Walker, Charles H. Carroll, Hugh McCulloch, in this country, and all the other conspicuous advocates of the monopoly, both in this country and in England, have attempted to justify it. They have all held that it was not necessary that money should be [37] a bona fide equivalent of the labor or property to be bought with it; but that, by the prohibition of all other money, the holders of a comparatively worthless amount of licensed money would be enabled to buy, at their own prices, the labor and property of all other men.

And this is the theory on which the governments of England and the United States have always, with immaterial exceptions, acted, in prohibiting all but such small amounts of money as they (the governments) should specially license. And it is the theory upon which they act now. And it is so manifestly a theory of pure robbery, that scarce a word can be necessary to make it more evidently so than it now is.

But inasmuch as your mind seems to be filled with the wildest visions of the excellency of this government, and to be strangely ignorant of its wrongs; and inasmuch as this monopoly of money is, in its practical operation, one of the greatest—possibly the greatest—of all these wrongs, and the one that is most relied upon for robbing the great body of the people, and keeping them in poverty and servitude, it is plainly important that you should have your eyes opened on the subject. I therefore submit, for your consideration, the following self-evident propositions:

1. That to make all traffic just and equal, it is indispensable that, in each separate purchase and sale, the money paid should be a bona fide equivalent of the labor or property bought with it.

Dare you, or any other man, of common sense and common honesty, dispute the truth of that proposition? If not, let us consider that principle established. It will then serve as one of the necessary and infallible guides to the true settlement of all the other questions that remain to be settled.

2. That so long as no force or fraud is practised by either party, the parties themselves, to each separate contract, have the sole, absolute, and unqualified right to decide for themselves, what money, and how much of it, shall be considered a bona fide equivalent of the labor or property that is to be exchanged for it. All this is necessarily implied in the natural right of men to make their own contracts, for buying and selling their respective commodities.

Will you dispute the truth of that proposition?

3. That any one man, who has an honest dollar, of any kind whatsoever, has as perfect a right, as any other man can have, to offer it in the market, in competition with any and all other dollars, in exchange for such labor or property as may be in the market for sale.

Will you dispute the truth of that proposition?

4. That where no fraud is practised, every person, who is mentally competent to make reasonable contracts, must be presumed to be as competent to judge of the value of the money that is offered in the market, as he is to judge of the value of all the other commodities that are bought and sold for money.

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Will you dispute the truth of that proposition?

5. That the free and open market, in which all honest money and all honest commodities are free to be given and received in exchange for each other, is the true, final, absolute, and only test of the true and natural market value of all money, as of all the other commodities that are bought and sold for money.

Will you dispute the truth of that proposition?

6. That any prohibition, by a government, of any such kind or amount of money—provided it be honest in itself—as the parties to contracts may voluntarily agree to give and receive in exchange for labor or property, is a palpable violation of their natural right to make their own contracts, and to buy and sell their labor and property on such terms as they may find to be necessary for the supply of their wants, or may think most beneficial to their interests.

Will you dispute the truth of that proposition?

7. That any government, that licenses a small amount of an article of such universal necessity as money, and that gives the control of it into a few hands, selected by itself, and then prohibits any and all other money—that is intrinsically honest and valuable—palpably violates all other men’s natural right to make their own contracts, and infallibly proves its purpose to be to enable the few holders of the licensed money to rob all other persons in the prices of their labor and property.

Will you dispute the truth of that proposition?

Are not all these propositions so self-evident, or so easily demonstrated, that they cannot, with any reason, be disputed?

If you feel competent to show the falsehood of any one of them, I hope you will attempt the task.

Section XIV.

If, now, you wish to form some rational opinion of the extent of the robbery practised in this country, by the holders of this monopoly of money, you have only to look at the following facts.

There are, in this country, I think, at least twenty-five millions of persons, male and female, sixteen years old, and upwards, mentally and physically capable of running machinery, producing wealth, and supplying their own needs for an independent and comfortable subsistence.

To make their industry most effective, and to enable them, individually, to put into their own pockets as large a portion as possible of their own earnings, they need, on an average, one thousand dollars each of money capital. Some need one, two, three, or five hundred dollars, others one, two, three, or five thousand. These persons, then, need, in the aggregate, twenty-five thousand millions of dollars ($25,000,000,000), of money capital.

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They need all this money capital to enable them to buy the raw materials upon which to bestow their labor, the implements and machinery with which to labor, and their means of subsistence while producing their goods for the market.

Unless they can get this capital, they must all either work at a disadvantage, or not work at all. A very large portion of them, to save themselves from starvation, have no alternative but to sell their labor to others, at just such prices as these others choose to pay. And these others choose to pay only such prices as are far below what the laborers could produce, if they themselves had the necessary capital to work with.

But this needed capital your lawmakers arbitrarily forbid them to have; and for no other reason than to reduce them to the condition of servants; and subject them to all such extortions as their employers—the holders of the privileged money—may choose to practise upon them.

If, now, you ask me where these twenty-five thousand millions of dollars of money capital, which these laborers need, are to come from, I answer:

Theoretically there are, in this country, fifty thousand millions of dollars of money capital ($50,000,000,000)—or twice as much as I have supposed these laborers to need—now lying idle! And it is lying idle, solely because the circulation of it, as money, is prohibited by the lawmakers.

If you ask how this can be, I will tell you.

Theoretically, every dollar’s worth of material property, that is capable of being taken by law, and applied to the payment of the owner’s debts, is capable of being represented by a promissory note, that shall circulate as money.

But taking all this material property at only half its actual value, it is still capable of supplying the twenty-five thousand millions of dollars—or one thousand dollars each—which these laborers need.

Now, we know—because experience has taught us—that solvent promissory notes, made payable in coin on demand, are the best money that mankind have ever had; (although probably not the best they ever will have).

To make a note solvent, and suitable for circulation as money, it is only necessary that it should be made payable in coin on demand, and be issued by a person, or persons, who are known to have in their hands abundant material property, that can be taken by law, and applied to the payment of the note, with all costs and damages for non-payment on demand.

Theoretically, I repeat, all the material property in the country, that can be taken by law, and applied to the payment of debts, can be used as banking capital; and be represented by promissory notes, made payable in coin on demand. And, practically, so much of it can be used as banking capital as may be required for supplying all the notes that can be kept in circulation as money.

Although these notes are made legally payable in coin on demand, it is seldom that such payment is demanded, if only it be publicly known that the notes are solvent: [40] that is, if it be publicly known that they are issued by persons who have so much material property, that can be taken by law, and sold, as may be necessary to bring the coin that is needed to pay the notes. In such cases, the notes are preferred to the coin, because they are so much more safe and convenient for handling, counting, and transportation, than is the coin; and also because we can have so many times more of them.

These notes are also a legal tender, to the banks that issue them, in payment of the notes discounted; that is, in payment of the notes given by the borrowers to the banks. And, in the ordinary course of things, all the notes, issued by the banks for circulation, are wanted, and come back to the banks, in payment of the notes discounted; thus saving all necessity for redeeming them with coin, except in rare cases. For meeting these rare cases, the banks find it necessary to keep on hand small amounts of coin; probably not more than one per cent. of the amount of notes in circulation.

As the notes discounted have usually but a short time to run,—say three months on an average,—the bank notes issued for circulation will all come back, on an average, once in three months, and be redeemed by the bankers, by being accepted in payment of the notes discounted.

Then the bank notes will be re-issued, by discounting new notes, and will go into circulation again; to be again brought back, at the end of another three months, and redeemed, by being accepted in payment of the new notes discounted.

In this way the bank notes will be continually re-issued, and redeemed, in the greatest amounts that can be kept in circulation long enough to earn such an amount of interest as will make it an object for the bankers to issue them.

Each of these notes, issued for circulation, if known to be solvent, will always have the same value in the market, as the same nominal amount of coin. And this value is a just one, because the notes are in the nature of a lien, or mortgage, upon so much property of the bankers as is necessary to pay the notes, and as can be taken by law, and sold, and the proceeds applied to their payment.

There is no danger that any more of these notes will be issued than will be wanted for buying and selling property at its true and natural market value, relatively to coin; for as the notes are all made legally payable in coin on demand, if they should ever fall below the value of coin in the market, the holders of them will at once return them to the banks, and demand coin for them; and thus take them out of circulation.

The bankers, therefore, have no motive for issuing more of them than will remain long enough in circulation, to earn so much interest as will make it an object to issue them; the only motive for issuing them being to draw interest on them while they are in circulation.

The bankers readily find how many are wanted for circulation, by the time those issued remain in circulation, before coming back for redemption. If they [41] come back immediately, or very quickly, after being issued, the bankers know that they have over-issued, and that they must therefore pay in coin—to their inconvenience, and perhaps loss—notes that would otherwise have remained in circulation long enough to earn so much interest as would have paid for issuing them; and would then have come back to them in payment of notes discounted, instead of coming back on a demand for redemption in coin.

Now, the best of all possible banking capital is real estate. It is the best, because it is visible, immovable, and indestructible. It cannot, like coin, be removed, concealed, or carried out of the country. And its aggregate value, in all civilized countries, is probably a hundred times greater than the amount of coin in circulation. It is therefore capable of furnishing a hundred times as much money as we can have in coin.

The owners of this real estate have the greatest inducements to use it as banking capital, because all the banking profit, over and above expenses, is a clear profit; inasmuch as the use of the real estate as banking capital does not interfere at all with its use for other purposes.

Farmers have a double, and much more than a double, inducement to use their lands as banking capital; because they not only get a direct profit from the loan of their notes, but, by loaning them, they furnish the necessary capital for the greatest variety of manufacturing purposes. They thus induce a much larger portion of the people, than otherwise would, to leave agriculture, and engage in mechanical employments; and thus become purchasers, instead of producers, of agricultural commodities. They thus get much higher prices for their agricultural products, and also a much greater variety and amount of manufactured commodities in exchange.

The amount of money, capable of being furnished by this system, is so great that every man, woman, and child, who is worthy of credit, could get it, and do business for himself, or herself—either singly, or in partnerships—and be under no necessity to act as a servant, or sell his or her labor to others. All the great establishments, of every kind, now in the hands of a few proprietors, but employing a great number of wage laborers, would be broken up; for few, or no persons, who could hire capital, and do business for themselves, would consent to labor for wages for another.

The credit furnished by this system would always be stable; for the system is probably capable of furnishing, at all times, all the credit, and all the money, that can be needed. It would also introduce a substantially universal system of cash payments. Everybody, who could get credit at all, would be able to get it at bank, in money. With the money, he would buy everything he needed for cash. He would also sell everything for cash; for when everybody buys for cash, everybody sells for cash; since buying for cash, and selling for cash, are necessarily one and the same thing.

[42]

We should, therefore, never have another crisis, panic, revulsion of credit, stagnation of industry, or fall of prices; for these are all caused by the lack of money, and the consequent necessity of buying and selling on credit; whereby the amount of indebtedness becomes so great, so enormous, in fact, in proportion to the amount of money extant, with which to meet it, that the whole system of credit breaks down; to the ruin of everybody, except the few holders of the monopoly of money, who reap a harvest in the fall of prices, and the consequent bankruptcy of everybody who is dependent on credit for his means of doing business.

It would be inadmissible for me, in this letter, to occupy the space that would be necessary, to expose all the false, absurd, and ridiculous pretences, by which the advocates of the monopoly of money have attempted to justify it. The only real argument they ever employed has been that, by means of the monopoly, the few holders of it were enabled to rob everybody else in the prices of their labor and property.

And our governments, State and national, have hitherto acted together in maintaining this monopoly, in flagrant violation of men’s natural right to make their own contracts, and in flagrant violation of the self-evident truth, that, to make all traffic just and equal, it is indispensable that the money paid should be, in all cases, a bona fide equivalent of the labor or property that is bought with it.

The holders of this monopoly now rule and rob this nation; and the government, in all its branches, is simply their tool. And being their tool for this gigantic robbery, it is equally their tool for all the lesser robberies, to which it is supposed that the people at large can be made to submit.

Section XV.

But although the monopoly of money is one of the most glaring violations of men’s natural right to make their own contracts, and one of the most effective—perhaps the most effective—for enabling a few men to rob everybody else, and for keeping the great body of the people in poverty and servitude, it is not the only one that our government practises, nor the only one that has the same robbery in view.

The so-called taxes or duties, which the government levies upon imports, are a practical violation both of men’s natural right of property, and of their natural right to make their own contracts.

A man has the same natural right to traffic with another, who lives on the opposite side of the globe, as he has to traffic with his next-door neighbor. And any obstruction, price, or penalty, interposed by the government, to the exercise of that right, is a practical violation of the right itself.

The ten, twenty, or fifty per cent. of a man’s property, which is taken from him, for the reason that he purchased it in a foreign country, must be considered either [43] as the price he is required to pay for the privilege of buying property in that country, or else as a penalty for having exercised his natural right of buying it in that country. Whether it be considered as a price paid for a privilege, or a penalty for having exercised a natural right, it is a violation both of his natural right of property, and of his natural right to make a contract in that country.

In short, it is nothing but downright robbery.

And when a man seeks to avoid this robbery, by evading the government robbers who are lying in wait for him,—that is, the so-called revenue officers,—whom he has as perfect a right to evade, as he has to evade any other robbers, who may be lying in wait for him,—the seizure of his whole property,—instead of the ten, twenty, or fifty per cent. that would otherwise have been taken from him,—is not merely adding so much to the robbery itself, but is adding insult to the robbery. It is punishing a man as a criminal, for simply trying to save his property from robbers.

But it will be said that these taxes or duties are laid to raise revenue for the support of the government.

Be it so, for the sake of the argument. All taxes, levied upon a man’s property for the support of government, without his consent, are mere robbery; a violation of his natural right of property. And when a government takes ten, twenty, or fifty per cent. of a man’s property, for the reason that he bought it in a foreign country, such taking is as much a violation of his natural right of property, or of his natural right to purchase property, as is the taking of property which he has himself produced, or which he has bought in his own village.

A man’s natural right of property, in a commodity he has bought in a foreign country, is intrinsically as sacred and inviolable as it is in a commodity produced at home. The foreign commodity is bought with the commodity produced at home; and therefore stands on the same footing as the commodity produced at home. And it is a plain violation of one’s right, for a government to make any distinction between them.

Government assumes to exist for the impartial protection of all rights of property. If it really exists for that purpose, it is plainly bound to make each kind of property pay its proper proportion, and only its proper proportion, of the cost of protecting all kinds. To levy upon a few kinds the cost of protecting all, is a naked robbery of the holders of those few kinds, for the benefit of the holders of all other kinds.

But the pretence that heavy taxes are levied upon imports, solely, or mainly, for the support of government, while light taxes, or no taxes at all, are levied upon property at home, is an utterly false pretence. They are levied upon the imported commodity, mainly, if not solely, for the purpose of enabling the producers of competing home commodities to extort from consumers a higher price than the home commodities would bring in free and open market. And this additional [44] price is sheer robbery, and is known to be so. And the amount of this robbery—which goes into the pockets of the home producers—is five, ten, twenty, or fifty times greater than the amount that goes into the treasury, for the support of the government, according as the amount of the home commodities is five, ten, twenty, or fifty times greater than the amount of the imported competing commodities.

Thus the amounts that go to the support of the government, and also the amounts that go into the pockets of the home producers, in the higher prices they get for their goods, are all sheer robberies; and nothing else.

But it will be said that the heavy taxes are levied upon the foreign commodity, not to put great wealth into a few pockets, but “to protect the home laborer against the competition of the pauper labor of other countries.”

This is the great argument that is relied on to justify the robbery.

This argument must have originated with the employers of home labor, and not with the home laborers themselves.

The home laborers themselves could never have originated it, because they must have seen that, so far as they were concerned, the object of the “protection,” so-called, was, at best, only to benefit them, by robbing others who were as poor as themselves, and who had as good a right as themselves to live by their labor. That is, they must have seen that the object of the “protection” was to rob the foreign laborers, in whole, or in part, of the pittances on which they were already necessitated to live; and, secondly, to rob consumers at home,—in the increased prices of the protected commodities,—when many or most of these home consumers were also laborers as poor as themselves.

Even if any class of laborers would have been so selfish and dishonest as to wish to thus benefit themselves by injuring others, as poor as themselves, they could have had no hope of carrying through such a scheme, if they alone were to profit by it; because they could have had no such influence with governments, as would be necessary to enable them to carry it through, in opposition to the rights and interests of consumers, both rich and poor, and much more numerous than themselves.

For these reasons it is plain that the argument originated with the employers of home labor, and not with the home laborers themselves.

And why do the employers of home labor advocate this robbery? Certainly not because they have such an intense compassion for their own laborers, that they are willing to rob everybody else, rich and poor, for their benefit. Nobody will suspect them of being influenced by any such compassion as that. But they advocate it solely because they put into their own pockets a very large portion certainly—probably three-fourths, I should judge—of the increased prices their commodities are thus made to bring in the market. The home laborers themselves probably get not more than one-fourth of these increased prices.

Thus the argument for “protection” is really an argument for robbing foreign [45] laborers—as poor as our own—of their equal and rightful chances in our markets; and also for robbing all the home consumers of the protected article—the poor as well as the rich—in the prices they are made to pay for it. And all this is done at the instigation, and principally for the benefit, of the employers of home labor, and not for the benefit of the home laborers themselves.

Having now seen that this argument—of “protecting our home laborers against the competition of the pauper labor of other countries”—is, of itself, an utterly dishonest argument; that it is dishonest towards foreign laborers and home consumers; that it must have originated with the employers of home labor, and not with the home laborers themselves; and that the employers of home labor, and not the home laborers themselves, are to receive the principal profits of the robbery, let us now see how utterly false is the argument itself.

1. The pauper laborers (if there are any such) of other countries have just as good a right to live by their labor, and have an equal chance in our own markets, and in all the markets of the world, as have the pauper laborers, or any other laborers, of our own country.

Every human being has the same natural right to buy and sell, of and to, any and all other people in the world, as he has to buy and sell, of and to, the people of his own country. And none but tyrants and robbers deny that right. And they deny it for their own benefit solely, and not for the benefit of their laborers.

And if a man, in our own country—either from motives of profit to himself, or from motives of pity towards the pauper laborers of other countries—chooses to buy the products of the foreign pauper labor, rather than the products of the laborers of his own country, he has a perfect legal right to do so. And for any government to forbid him to do so, or to obstruct his doing so, or to punish him for doing so, is a violation of his natural right of purchasing property of whom he pleases, and from such motives as he pleases.

2. To forbid our own people to buy in the best markets, is equivalent to forbidding them to sell the products of their own labor in the best markets; for they can buy the products of foreign labor, only by giving the products of their own labor in exchange. Therefore to deny our right to buy in foreign markets, is to forbid us to sell in foreign markets. And this is a plain violation of men’s natural rights.

If, when a producer of cotton, tobacco, grain, beef, pork, butter, cheese, or any other commodity, in our own country, has carried it abroad, and exchanged it for iron or woolen goods, and has brought these latter home, the government seizes one-half of them, because they were manufactured abroad, the robbery committed upon the owner is the same as if the government had seized one-half of his cotton, tobacco, or other commodity, before he exported it; because the iron or woolen goods, which he purchased abroad with the products of his own home labor, are as much his own property, as was the commodity with which he purchased them.

[46]

Therefore the tax laid upon foreign commodities, that have been bought with the products of our home labor, is as much a robbery of the home laborer, as the same tax would have been, if laid directly upon the products of our home labor. It is, at best, only a robbery of one home laborer—the producer of cotton, tobacco, grain, beef, pork, butter, or cheese—for the benefit of another home laborer—the producer of iron or woolen goods.

3. But this whole argument is a false one, for the further reason that our home laborers do not have to compete with “the pauper labor” of any country on earth; since the actual paupers of no country on earth are engaged in producing commodities for export to any other country. They produce few, or no, other commodities than those they themselves consume; and ordinarily not even those.

There are a great many millions of actual paupers in the world. In some of the large provinces of British India, for example, it is said that nearly half the population are paupers. But I think that the commodities they are producing for export to other countries than their own, have never been heard of.

The term, “pauper labor,” is therefore a false one. And when these robbers—the employers of home labor—talk of protecting their laborers against the competition of “the pauper labor” of other countries, they do not mean that they are protecting them against the competition of actual paupers; but only against the competition of that immense body of laborers, in all parts of the world, who are kept constantly on the verge of pauperism, or starvation; who have little, or no, means of subsistence, except such as their employers see fit to give them,—which means are usually barely enough to keep them in a condition to labor.

These are the only “pauper laborers,” from whose competition our own laborers are sought to be protected. They are quite as badly off as our own laborers; and are in equal need of “protection.”

What, then, is to be done? This policy of excluding foreign commodities from our markets, is a game that all other governments can play at, as well as our own. And if it is the duty of our government to “protect” our laborers against the competition of “the pauper labor,” so-called, of all other countries, it is equally the duty of every other government to “protect” its laborers against the competition of the so-called “pauper labor” of all other countries. So that, according to this theory, each nation must either shut out entirely from its markets the products of all other countries; or, at least, lay such heavy duties upon them, as will, in some measure, “protect” its own laborers from the competition of the “pauper labor” of all other countries.

This theory, then, is that, instead of permitting all mankind to supply each other’s wants, by freely exchanging their respective products with each other, the government of each nation should rob the people of every other, by imposing heavy duties upon all commodities imported from them.

The natural effect of this scheme is to pit the so-called “pauper labor” of each [47] country against the so-called “pauper labor” of every other country; and all for the benefit of their employers. And as it holds that so-called “pauper labor” is cheaper than free labor, it gives the employers in each country a constant motive for reducing their own laborers to the lowest condition of poverty, consistent with their ability to labor at all. In other words, the theory is, that the smaller the portion of the products of labor, that is given to the laborers, the larger will be the portion that will go into the pockets of the employers.

Now, it is not a very honorable proceeding for any government to pit its own so-called “pauper laborers”—or laborers that are on the verge of pauperism—against similar laborers in all other countries: and all for the sake of putting the principal proceeds of their labor into the pockets of a few employers.

To set two bodies of “pauper laborers”—or of laborers on the verge of pauperism—to robbing each other, for the profit of their employers, is the next thing, in point of atrocity, to setting them to killing each other, as governments have heretofore been in the habit of doing, for the benefit of their rulers.

The laborers, who are paupers, or on the verge of pauperism—who are destitute, or on the verge of destitution—comprise (with their families) doubtless nine-tenths, probably nineteen-twentieths, of all the people on the globe. They are not all wage laborers. Some of them are savages, living only as savages do. Others are barbarians, living only as barbarians do. But an immense number are mere wage laborers. Much the larger portion of these have been reduced to the condition of wage laborers, by the monopoly of land, which mere bands of robbers have succeeded in securing for themselves by military power. This is the condition of nearly all the Asiatics, and of probably one-half the Europeans. But in those portions of Europe and the United States, where manufactures have been most extensively introduced, and where, by science and machinery, great wealth has been created, the laborers have been kept in the condition of wage laborers, principally, if not wholly, by the monopoly of money. This monopoly, established in all these manufacturing countries, has made it impossible for the manufacturing laborers to hire the money capital that was necessary to enable them to do business for themselves; and has consequently compelled them to sell their labor to the monopolists of money, for just such prices as these latter should choose to give.

It is, then, by the monopoly of land, and the monopoly of money, that more than a thousand millions of the earth’s inhabitants—as savages, barbarians, and wage laborers—are kept in a state of destitution, or on the verge of destitution. Hundreds of millions of them are receiving, for their labor, not more than three, five, or, at most, ten cents a day.

In western Europe, and in the United States, where, within the last hundred and fifty years, machinery has been introduced, and where alone any considerable wealth is now created, the wage laborers, although they get so small a portion of the wealth they create, are nevertheless in a vastly better condition than are the laboring classes in other parts of the world.

[48]

If, now, the employers of wage labor, in this country,—who are also the monopolists of money,—and who are ostensibly so distressed lest their own wage laborers should suffer from the competition of the pauper labor of other countries,—have really any of that humanity, of which they make such profession, they have before them a much wider field for the display of it, than they seem to desire. That is to say, they have it in their power, not only to elevate immensely the condition of the laboring classes in this country, but also to set an example that will be very rapidly followed in all other countries; and the result will be the elevation of all oppressed laborers throughout the world. This they can do, by simply abolishing the monopoly of money. The real producers of wealth, with few or no exceptions, will then be able to hire all the capital they need for their industries, and will do business for themselves. They will also be able to hire their capital at very low rates of interest; and will then put into their own pockets all the proceeds of their labor, except what they pay as interest on their capital. And this amount will be too small to obstruct materially their rise to independence and wealth.

Section XVI.

But will the monopolists of money give up their monopoly? Certainly not voluntarily. They will do it only upon compulsion. They will hold on to it as long as they own and control governments as they do now. And why will they do so? Because to give up their monopoly would be to give up their control of those great armies of servants—the wage laborers—from whom all their wealth is derived, and whom they can now coerce by the alternative of starvation, to labor for them at just such prices as they (the monopolists of money) shall choose to pay.

Now these monopolists of money have no plans whatever for making their “capital,” as they call it—that is, their money capital—their privileged money capital—profitable to themselves, otherwise than by using it to employ other men’s labor. And they can keep control of other men’s labor only by depriving the laborers themselves of all other means of subsistence. And they can deprive them of all other means of subsistence only by putting it out of their power to hire the money that is necessary to enable them to do business for themselves. And they can put it out of their power to hire money, only by forbidding all other men to lend them their credit, in the shape of promissory notes, to be circulated as money.

If the twenty-five or fifty thousand millions of loanable capital—promissory notes—which, in this country, are now lying idle, were permitted to be loaned, these wage laborers would hire it, and do business for themselves, instead of laboring as servants for others; and would of course retain in their own hands all the wealth they should create, except what they should pay as interest for their capital.

And what is true of this country, is true of every other where civilization exists; for wherever civilization exists, land has value, and can be used as banking capital, [49] and be made to furnish all the money that is necessary to enable the producers of wealth to hire the capital necessary for their industries, and thus relieve them from their present servitude to the few holders of privileged money.

Thus it is that the monopoly of money is the one great obstacle to the liberation of the laboring classes all over the world, and to their indefinite progress in wealth.

But we are now to show, more definitely, what relation this monopoly of money is made to bear to the freedom of international trade; and why it is that the holders of this monopoly, in this country, demand heavy tariffs on imports, on the lying pretence of protecting our home labor against the competition of the so-called pauper labor of other countries.

The explanation of the whole matter is as follows.

1. The holders of the monopoly of money, in each country,—more especially in the manufacturing countries like England, the United States, and some others,—assume that the present condition of poverty, for the great mass of mankind, all over the world, is to be perpetuated forever; or at least for an indefinite period. From this assumption they infer that, if free trade between all countries is to be allowed, the so-called pauper labor of each country is to be forever pitted against the so-called pauper labor of every other country. Hence they infer that it is the duty of each government—or certainly of our government—to protect the so-called pauper labor of our own country—that is, the class of laborers who are constantly on the verge of pauperism—against the competition of the so-called pauper labor of all other countries, by such duties on imports as will secure to our own laborers a monopoly of our own home market.

This is, on the face of it, the most plausible argument—and almost, if not really, the only argument—by which they now attempt to sustain their restrictions upon international trade.

If this argument is a false one, their whole case falls to the ground. That it is a false one, will be shown hereafter.

2. These monopolists of money assume that pauper labor, so-called, is the cheapest labor in the world; and that therefore each nation, in order to compete with the pauper labor of all other nations, must itself have “cheap labor.” In fact, “cheap labor” is, with them, the great sine qua non of all national industry. To compete with “cheap labor,” say they, we must have “cheap labor.” This is, with them, a self-evident proposition. And this demand for “cheap labor” means, of course, that the laboring classes, in this country, must be kept, as nearly as possible, on a level with the so-called pauper labor of all other countries.

Thus their whole scheme of national industry is made to depend upon “cheap labor.” And to secure “cheap labor.” they hold it to be indispensable that the laborers shall be kept constantly either in actual pauperism, or on the verge of pauperism. And, in this country, they know of no way of keeping the laborers on the [50] verge of pauperism, but by retaining in their (the monopolists’) own hands such a monopoly of money as will put it out of the power of the laborers to hire money, and do business for themselves; and thus compel them, by the alternative of starvation, to sell their labor to the monopolists of money at such prices as will enable them (the monopolists) to manufacture goods in competition with the so-called pauper laborers of all other countries.

Let it be repeated—as a vital proposition—that the whole industrial programme of these monopolists rests upon, and implies, such a degree of poverty, on the part of the laboring classes, as will put their labor in direct competition with the so-called pauper labor of all other countries. So long as they (the monopolists) can perpetuate this extreme poverty of the laboring classes, in this country, they feel safe against all foreign competition; for, in all other things than “cheap labor,” we have advantages equal to those of any other nation.

Furthermore, this extreme poverty, in which the laborers are to be kept, necessarily implies that they are to receive no larger share of the proceeds of their own labor, than is necessary to keep them in a condition to labor. It implies that their industry—which is really the national industry—is not to be carried on at all for their own benefit, but only for the benefit of their employers, the monopolists of money. It implies that the laborers are to be mere tools and machines in the hands of their employers; that they are to be kept simply in running order, like other machinery; but that, beyond this, they are to have no more rights, and no more interests, in the products of their labor, than have the wheels, spindles, and other machinery, with which the work is done.

In short, this whole programme implies that the laborers—the real producers of wealth—are not to be considered at all as human beings, having rights and interests of their own; but only as tools and machines, to be owned, used, and consumed in producing such wealth as their employers—the monopolists of money—may desire for their own subsistence and pleasure.

What, then, is the remedy? Plainly it is to abolish the monopoly of money. Liberate all this loanable capital—promissory notes—that is now lying idle, and we liberate all labor, and furnish to all laborers all the capital they need for their industries. We shall then have no longer, all over the earth, the competition of pauper labor with pauper labor, but only the competition of free labor with free labor. And from this competition of free labor with free labor, no people on earth have anything to fear, but all peoples have everything to hope.

And why have all peoples everything to hope from the competition of free labor with free labor? Because when every human being, who labors at all, has, as nearly as possible, all the fruits of his labor, and all the capital that is necessary to make his labor most effective, he has all needed inducements to the best use of both his brains and his muscles, his head and his hands. He applies both his head and his hands to his work. He not only acquires, as far as possible, for his own use, all the [51] scientific discoveries and mechanical inventions, that are made by others, but he himself makes scientific discoveries and mechanical inventions. He thus multiplies indefinitely his powers of production. And the more each one produces of his own particular commodity, the more he can buy of every other man’s products, and the more he can pay for them.

With freedom in money, the scientific discoveries and mechanical inventions, made in each country, will not only be used to the utmost in that country, but will be carried into all other countries. And these discoveries and inventions, given by each country to every other, and received by each country from every other, will be of infinitely more value than all the material commodities that will be exchanged between these countries.

In this way each country contributes to the wealth of every other, and the whole human race are enriched by the increased power and stimulus given to each man’s labor of body and mind.

But it is to be kept constantly in mind, that there can be no such thing as free labor, unless there be freedom in money; that is, unless everybody, who can furnish money, shall be at liberty to do so. Plainly labor cannot be free, unless the laborers are free to hire all the money capital that is necessary for their industries. And they cannot be free to hire all this money capital, unless all who can lend it to them, shall be at liberty to do so.

In short, labor cannot be free, unless each laborer is free to hire all the capital—money capital, as well as all other capital—that he honestly can hire; free to buy, wherever he can buy, all the raw material he needs for his labor; and free to sell, wherever he can sell, all the products of his labor. Therefore labor cannot be free, unless we have freedom in money, and free trade with all mankind.

We can now understand the situation. In the most civilized nations—such as Western Europe and the United States—labor is utterly crippled, robbed, and enslaved by the monopoly of money; and also, in some of these countries, by the monopoly of land. In nearly or quite all the other countries of the world, labor is not only robbed and enslaved, but to a great extent paralyzed, by the monopoly of land, and by what may properly be called the utter absence of money. There is, consequently, in these latter countries, almost literally, no diversity of industry, no science, no skill, no invention, no machinery, no manufactures, no production, and no wealth; but everywhere miserable poverty, ignorance, servitude, and wretchedness.

In this country, and in Western Europe, where the uses of money are known, there is no excuse to be offered for the monopoly of money. It is maintained, in each of these countries, by a small knot of tyrants and robbers, who have got control of the governments, and use their power principally to maintain this monopoly; understanding, as they do, that this one monopoly of money gives them a substantially absolute control of all other men’s property and labor.

But not satisfied with this substantially absolute control of all other men’s property [52] and labor, the monopolists of money, in this country,—feigning great pity for their laborers, but really seeking only to make their monopoly more profitable to themselves,—cry out for protection against the competition of the pauper labor of all other countries; when they alone, and such as they, are the direct cause of all the pauper labor in the world. But for them, and others like them, there would be neither poverty, ignorance, nor servitude on the face of the earth.

But to all that has now been said, the advocates of the monopoly of money will say that, if all the material property of the country were permitted to be represented by promissory notes, and these promissory notes were permitted to be lent, bought, and sold as money, the laborers would not be able to hire them, for the reason that they could not give the necessary security for repayment.

But let those who would say this, tell us why it is that, in order to prevent men from loaning their promissory notes, for circulation as money, it has always been necessary for governments to prohibit it, either by penal enactments, or prohibitory taxation. These penal enactments and prohibitory taxation are acknowledgments that, but for them, the notes would be loaned to any extent that would be profitable to the lenders. What this extent would be, nothing but experience of freedom can determine. But freedom would doubtless give us ten, twenty, most likely fifty, times as much money as we have now, if so much could be kept in circulation. And laborers would at least have ten, twenty, or fifty times better chances for hiring capital, than they have now. And, furthermore, all labor and property would have ten, twenty, or fifty times better chances of bringing their full value in the market, than they have now.

But in the space that is allowable in this letter, it is impossible to say all, or nearly all, of what might be said, to show the justice, the utility, or the necessity, for perfect freedom in the matters of money and international trade. To pursue these topics further would exclude other matters of great importance, as showing how the government acts the part of robber and tyrant in all its legislation on contracts; and that the whole purpose of all its acts is that the earnings of the many may be put into the pockets of the few.

Section XVII.

Although, as has already been said, the constitution is a paper that nobody ever signed, that few persons have ever read, and that the great body of the people never saw; and that has, consequently, no more claim to be the supreme law of the land, or to have any authority whatever, than has any other paper, that nobody ever signed, that few persons ever read, and that the great body of the people never saw; and although it purports to authorize a government, in which the lawmakers, judges, and executive officers are all to be secured against any responsibility whatever to the people, whose liberty and rights are at stake; and although [53] this government is kept in operation only by votes given in secret (by secret ballot), and in a way to save the voters from all personal responsibility for the acts of their agents,—the lawmakers, judges, etc.; and although the whole affair is so audacious a fraud and usurpation, that no people could be expected to agree to it, or ought to submit to it, for a moment; yet, inasmuch as the constitution declares itself to have been ordained and established by the people of the United States, for the maintenance of liberty and justice for themselves and their posterity; and inasmuch as all its supporters—that is, the voters, lawmakers, judges, etc.—profess to derive all their authority from it; and inasmuch as all lawmakers, and all judicial and executive officers, both national and State, swear to support it; and inasmuch as they claim the right to kill, and are evidently determined to kill, and esteem it the highest glory to kill, all who do not submit to its authority; we might reasonably expect that, from motives of common decency, if from no other, those who profess to administer it, would pay some deference to its commands, at least in those particular cases where it explicitly forbids any violation of the natural rights of the people.

Especially might we expect that the judiciary—whose courts claim to be courts of justice—and who profess to be authorized and sworn to expose and condemn all such violations of individual rights as the constitution itself expressly forbids—would, in spite of all their official dependence on, and responsibility to, the lawmakers, have sufficient respect for their personal characters, and the opinions of the world, to induce them to pay some regard to all those parts of the constitution that expressly require any rights of the people to be held inviolable.

If the judicial tribunals cannot be expected to do justice, even in those cases where the constitution expressly commands them to do it, and where they have solemnly sworn to do it, it is plain that they have sunk to the lowest depths of servility and corruption, and can be expected to do nothing but serve the purposes of robbers and tyrants.

But how futile have been all expectations of justice from the judiciary, may be seen in the conduct of the courts—and especially in that of the so-called Supreme Court of the United States—in regard to men’s natural right to make their own contracts.

Although the State lawmakers have, more frequently than the national lawmakers, made laws in violation of men’s natural right to make their own contracts, yet all laws, State and national, having for their object the destruction of that right, have always, without a single exception, I think, received the sanction of the Supreme Court of the United States. And having been sanctioned by that court, they have been, as a matter of course, sanctioned by all the other courts, State and national. And this work has gone on, until, if these courts are to be believed, nothing at all is left of men’s natural right to make their own contracts.

That such is the truth, I now propose to prove.

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And, first, as to the State governments.

The constitution of the United States (Art. 1, Sec. 10) declares that:

No State shall pass any law impairing the obligation of contracts.

This provision does not designate what contracts have, and what have not, an “obligation.” But it clearly presupposes, implies, assumes, and asserts that there are contracts that have an “obligation.” Any State law, therefore, which declares that such contracts shall have no obligation, is plainly in conflict with this provision of the constitution of the United States.

This provision, also, by implying that there are contracts, that have an “obligation,” necessarily implies that men have a right to enter into them; for if men had no right to enter into the contracts, the contracts themselves could have no “obligation.”

This provision, then, of the constitution of the United States, not only implies that there are contracts that have an obligation, but it also implies that the people have the right to enter into all such contracts, and have the benefit of them. And “any” State “law,” conflicting with either of these implications, is necessarily unconstitutional and void.

Furthermore, the language of this provision of the constitution, to wit, “the obligation [singular] of contracts” [plural], implies that there is one and the same “obligation” to all “contracts” whatsoever, that have any legal obligation at all. And there obviously must be some one principle, that gives validity to all contracts alike, that have any validity.

The law, then, of this whole country, as established by the constitution of the United States, is, that all contracts whatsoever, in which this one principle of validity, or “obligation,” is found, shall be held valid; and that the States shall impose no restraint whatever upon the people’s entering into all such contracts.

All, therefore, that courts have to do, in order to determine whether any particular contract, or class of contracts, are valid, and whether the people have a right to enter into them, is simply to determine whether the contracts themselves have, or have not, this one principle of validity, or “obligation,” which the constitution of the United States declares shall not be impaired.

State legislation can obviously have nothing to do with the solution of this question. It can neither create, nor destroy, that “obligation of contracts,” which the constitution forbids it to impair. It can neither give, nor take away, the right to enter into any contract whatever, that has that “obligation.”

On the supposition, then, that the constitution of the United States is, what it declares itself to be, viz., “the supreme law of the land, . . . . anything in the constitutions or laws of the States to the contrary notwithstanding,” this provision against “any” State “law impairing the obligation of contracts,” is so explicit, and so authoritative, that the legislatures and courts of the States have no color of authority [55] for violating it. And the Supreme Court of the United States has had no color of authority or justification for suffering it to be violated.

This provision is certainly one of the most important—perhaps the most important—of all the provisions of the constitution of the United States, as protective of the natural rights of the people to make their own contracts, or provide for their own welfare.

Yet it has been constantly trampled under foot, by the State legislatures, by all manner of laws, declaring who may, and who may not, make certain contracts; and what shall, and what shall not, be “the obligation” of particular contracts; thus setting at defiance all ideas of justice, of natural rights, and equal rights; conferring monopolies and privileges upon particular individuals, and imposing the most arbitrary and destructive restraints and penalties upon others; all with a view of putting, as far as possible, all wealth into the hands of the few, and imposing poverty and servitude upon the great body of the people.

And yet all these enormities have gone on for nearly a hundred years, and have been sanctioned, not only by all the State courts, but also by the Supreme Court of the United States.

And what color of excuse have any of these courts offered for thus upholding all these violations of justice, of men’s natural rights, and even of that constitution which they had all sworn to support?

They have offered only this: They have all said they did not know what “the obligation of contracts” was!

Well, suppose, for the sake of the argument, that they have not known what “the obligation of contracts” was, what, then, was their duty? Plainly this, to neither enforce, nor annul, any contract whatever, until they should have discovered what “the obligation of contracts” was.

Clearly they could have no right to either enforce, or annul, any contract whatever, until they should have ascertained whether it had any “obligation,” and, if any, what that “obligation” was.

If these courts really do not know—as perhaps they do not—what “the obligation of contracts” is, they deserve nothing but contempt for their ignorance. If they do know what “the obligation of contracts” is, and yet sanction the almost literally innumerable laws that violate it, they deserve nothing but detestation for their villainy.

And until they shall suspend all their judgments for either enforcing, or annulling, contracts, or, on the other hand, shall ascertain what “the obligation of contracts” is, and sweep away all State laws that impair it, they will deserve both contempt for their ignorance, and detestation for their crimes.

Individual Justices of the Supreme Court of the United States have, at least in one instance, in 1827 (Ogden vs. Saunders, 12 Wheaton 213), attempted to give a definition of “the obligation of contracts.” But there was great disagreement [56] among them; and no one definition secured the assent of the whole court, or even of a majority. Since then, so far as I know, that court has never attempted to give a definition. And, so far as the opinion of that court is concerned, the question is as unsettled now, as it was sixty years ago. And the opinions of the Supreme Courts of the States are equally unsettled with those of the Supreme Court of the United States. The consequence is, that “the obligation of contracts”—the principle on which the real validity, or invalidity, of all contracts whatsoever depends—is practically unknown, or at least unrecognized, by a single court, either of the States, or of the United States. And, as a result, every species of absurd, corrupt, and robber legislation goes on unrestrained, as it always has done.

What, now, is the reason why not one of these courts has ever so far given its attention to the subject as to have discovered what “the obligation of contracts” is? What that principle is, I repeat, which they have all sworn to sustain, and on which the real validity, or invalidity, of every contract on which they ever adjudicate, depends? Why is it that they have all gone on sanctioning and enforcing all the nakedly iniquitous laws, by which men’s natural right to make their own contracts has been trampled under foot?

Surely it is not because they do not know that all men have a natural right to make their own contracts; for they know that, as well as they know that all men have a natural right to live, to breathe, to move, to speak, to hear, to see, or to do anything whatever for the support of their lives, or the promotion of their happiness.

Why, then, is it, that they strike down this right, without ceremony, and without compunction, whenever they are commanded to do so by the lawmakers? It is because, and solely because, they are so servile, slavish, degraded, and corrupt, as to act habitually on the principle, that justice and men’s natural rights are matters of no importance, in comparison with the commands of the impudent and tyrannical lawmakers, on whom they are dependent for their offices and their salaries. It is because, and solely because, they, like the judges under all other irresponsible and tyrannical governments, are part and parcel of a conspiracy for robbing and enslaving the great body of the people, to gratify the luxury and pride of a few. It is because, and solely because, they do not recognize our governments, State or national, as institutions designed simply to maintain justice, or to protect all men in the enjoyment of all their natural rights; but only as institutions designed to accomplish such objects as irresponsible cabals of lawmakers may agree upon.

In proof of all this, I give the following.

Previous to 1824, two cases had come up from the State courts, to the Supreme Court of the United States, involving the question whether a State law, invalidating some particular contract, came within the constitutional prohibition of “any law impairing the obligation of contracts.”

[57]

One of these cases was that of Fletcher vs. Peck, (6 Cranch 87), in the year 1810. In this case the court held simply that a grant of land, once made by the legislature of Georgia, could not be rescinded by a subsequent legislature.

But no general definition of “the obligation of contracts” was given.

Again, in the year 1819, in the case of Dartmouth College vs. Woodward (4 Wheaton 518), the court held that a charter, granted to Dartmouth College, by the king of England, before the Revolution, was a contract; and that a law of New Hampshire, annulling, or materially altering, the charter, without the consent of the trustees, was a “law impairing the obligation” of that contract.

But, in this case, as in that of Fletcher vs. Peck, the court gave no general definition of “the obligation of contracts.”

But in the year 1824, and again in 1827, in the case of Ogden vs. Saunders (12 Wheaton 213) the question was, whether an insolvent law of the State of New York, which discharged a debtor from a debt, contracted after the passage of the law, or, as the courts would say, “contracted under the law”—on his giving up his property to be distributed among his creditors—was a “law impairing the obligation of contracts?”

To the correct decision of this case, it seemed indispensable that the court should give a comprehensive, precise, and universal definition of “the obligation of contracts”; one by which it might forever after be known what was, and what was not, that “obligation of contracts,” which the State governments were forbidden to “impair” by “any law” whatever.

The cause was heard at two terms, that of 1824, and that of 1827.

It was argued by Webster, Wheaton, Wirt, Clay, Livingston, Ogden, Jones, Sampson, and Haines; nine in all. Their arguments were so voluminous that they could not be reported at length. Only summaries of them are given. But these summaries occupy thirty-eight pages in the reports.

The judges, at that time, were seven, viz., Marshall, Washington, Johnson, Duvall, Story, Thompson, and Trimble.

The judges gave five different opinions; occupying one hundred pages of the reports.

But no one definition of “the obligation of contracts” could be agreed on; not even by a majority.

Here, then, sixteen lawyers and judges—many of them among the most eminent the country has ever had—were called upon to give their opinions upon a question of the highest importance to all men’s natural rights, to all the interests of civilized society, and to the very existence of civilization itself; a question, upon the answer to which depended the real validity, or invalidity, of every contract that ever was made, or ever will be made, between man and man. And yet, by their disagreements, they all virtually acknowledged that they did not know what “the obligation of contracts” was!

[58]

But this was not all. Although they could not agree as to what “the obligation of contracts” was, they did all agree that it could be nothing which the State lawmakers could not prohibit and abolish, by laws passed before the contracts were made. That is to say, they all agreed that the State lawmakers had absolute power to prohibit all contracts whatsoever, for buying and selling, borrowing and lending, giving and receiving, property; and that, whenever they did prohibit any particular contract, or class of contracts, all such contracts, thereafter made, could have no “obligation”!

They said this, be it noted, not of contracts that were naturally and intrinsically criminal and void, but of contracts that were naturally and intrinsically as just, and lawful, and useful, and necessary, as any that men ever enter into; and that had as perfect a natural, intrinsic, inherent “obligation,” as any of those contracts, by which the traffic of society is carried on, or by which men ever buy and sell, borrow and lend, give and receive, property, of and to each other.

Not one of these sixteen lawyers and judges took the ground that the constitution, in forbidding any State to “pass any law impairing the obligation of contracts,” intended to protect, against the arbitrary legislation of the States, the only true, real, and natural “obligation of contracts,” or the right of the people to enter into all really just, and naturally obligatory contracts.

Is it possible to conceive of a more shameful exhibition, or confession, of the servility, the baseness, or the utter degradation, of both bar and bench, than their refusal to say one word in favor of justice, liberty, men’s natural rights, or the natural, and only real, “obligation” of their contracts?

And yet, from that day to this—a period of sixty years, save one—neither bar nor bench, so far as I know, have ever uttered one syllable in vindication of men’s natural right to make their own contracts, or to have the only true, real, natural, inherent, intrinsic “obligation” of their contracts respected by lawmakers or courts.

Can any further proof be needed that all ideas of justice and men’s natural rights are absolutely banished from the minds of lawmakers, and from so-called courts of justice? or that absolute and irresponsible lawmaking has usurped their place?

Or can any further proof be needed, of the utter worthlessness of all the constitutions, which these lawmakers and judges swear to support, and profess to be governed by?

Section XVIII.

If, now, it be asked, what is this constitutional “obligation of contracts,” which the States are forbidden to impair, the answer is, that it is, and necessarily must be, the natural obligation; or that obligation, which contracts have, on principles [59] of natural law, and natural justice, as distinguished from any arbitrary or unjust obligation, which lawmakers may assume to create, and attach to contracts.

This natural obligation is the only one “obligation,” which all obligatory contracts can be said to have. It is the only inherent “obligation,” that any contract can be said to have. It is recognized all over the world—at least as far as it is known—as the one only true obligation, that any, or all, contracts can have. And, so far as it is known—it is held valid all over the world, except in those exceptional cases, where arbitrary and tyrannical governments have assumed to annul it, or substitute some other in its stead.

The constitution assumes that this one “obligation of contracts,” which it designs to protect, is the natural one, because it assumes that it existed, and was known, at the time the constitution itself was established; and certainly no one “obligation,” other than the natural one, can be said to have been known, as applicable to all obligatory contracts, at the time the constitution was established. Unless, therefore, the constitution be presumed to have intended the natural “obligation,” it cannot be said to have intended any one “obligation” whatever; or, consequently, to have forbidden the violation of any one “obligation” whatever.

It cannot be said that “the obligation,” which the constitution designed to protect, was any arbitrary “obligation,” that was unknown at the time the constitution was established, but that was to be created, and made known afterward; for then this provision of the constitution could have had no effect, until such arbitrary “obligation” should have been created, and made known. And as it gives us no information as to how, or by whom, this arbitrary “obligation” was to be created, or what the obligation itself was to be, or how it could ever be known to be the one that was intended to be protected, the provision itself becomes a mere nullity, having no effect to protect any “obligation” at all.

It would be a manifest and utter absurdity to say that the constitution intended to protect any “obligation” whatever, unless it be presumed to have intended some particular “obligation,” that was known at the time; for that would be equivalent to saying that the constitution intended to establish a law, of which no man could know the meaning.

But this is not all.

The right of property is a natural right. The only real right of property, that is known to mankind, is the natural right. Men have also a natural right to convey their natural rights of property from one person to another. And there is no means known to mankind, by which this natural right of property can be transferred, or conveyed, by one man to another, except by such contracts as are naturally obligatory; that is, naturally capable of conveying and binding the right of property.

All contracts whatsoever, that are naturally capable, competent, and sufficient to convey, transfer, and bind the natural right of property, are naturally obligatory; [60] and really and truly do convey, transfer, and bind such rights of property as they purport to convey, transfer, and bind.

All the other modes, by which one man has ever attempted to acquire the property of another, have been thefts, robberies, and frauds. But these, of course, have never conveyed any real rights of property.

To make any contract binding, obligatory, and effectual for conveying and transferring rights of property, these three conditions only are essential, viz., 1, That it be entered into by parties, who are mentally competent to make reasonable contracts. 2. That the contract be a purely voluntary one: that is, that it be entered into without either force or fraud on either side. 3. That the right of property, which the contract purports to convey, be such an one as is naturally capable of being conveyed, or transferred, by one man to another.

Subject to these conditions, all contracts whatsoever, for conveying rights of property—that is, for buying and selling, borrowing and lending, giving and receiving property—are naturally obligatory, and bind such rights of property as they purport to convey.

Subject to these conditions, all contracts, for the conveyance of rights of property, are recognized as valid, all over the world, by both civilized and savage man, except in those particular cases where governments arbitrarily and tyrannically prohibit, alter, or invalidate them.

This natural “obligation of contracts” must necessarily be presumed to be the one, and the only one, which the constitution forbids to be impaired, by any State law whatever, if we are to presume that the constitution was intended for the maintenance of justice, or men’s natural rights.

On the other hand, if the constitution be presumed not to protect this natural “obligation of contracts,” we know not what other “obligation” it did intend to protect. It mentions no other, describes no other, gives us no hint of any other; and nobody can give us the least information as to what other “obligation of contracts” was intended.

It could not have been any “obligation” which the State lawmakers might arbitrarily create, and annex to all contracts; for this is what no lawmakers have ever attempted to do. And it would be the height of absurdity to suppose they ever will invent any one “obligation,” and attach it to all contracts. They have only attempted either to annul, or impair, the natural “obligation” of particular contracts; or, in particular cases, to substitute other “obligations” of their own invention. And this is the most they will ever attempt to do.

Section XIX.

Assuming it now to be proved that the “obligation of contracts,” which the States are forbidden to “impair,” is the natural “obligation”; and that, constitutionally [61] speaking, this provision secures, to all the people of the United States, the right to enter into, and have the benefit of, all contracts whatsoever, that have that one natural “obligation,” let us look at some of the more important of those State laws that have either impaired that obligation, or prohibited the exercise of that right.

1. That law, in all the States, by which any, or all, the contracts of persons, under twenty-one years of age, are either invalidated, or forbidden to be entered into.

The mental capacity of a person to make reasonable contracts, is the only criterion, by which to determine his legal capacity to make obligatory contracts. And his mental capacity to make reasonable contracts is certainly not to be determined by the fact that he is, or is not, twenty-one years of age. There would be just as much sense in saying that it was to be determined by his height, or his weight, as there is in saying that it should be determined by his age.

Nearly all persons, male and female, are mentally competent to make reasonable contracts, long before they are twenty-one years of age. And as soon as they are mentally competent to make reasonable contracts, they have the same natural right to make them, that they ever can have. And their contracts have the same natural “obligation” that they ever can have.

If a person’s mental capacity to make reasonable contracts be drawn in question, that is a question of fact, to be ascertained by the same tribunal that is to ascertain all the other facts involved in the case. It certainly is not to be determined by any arbitrary legislation, that shall deprive any one of his natural right to make contracts.

2. All the State laws, that do now forbid, or that have heretofore forbidden, married women to make any or all contracts, that they are, or were, mentally competent to make reasonably, are violations of their natural right to make their own contracts.

A married woman has the same natural right to acquire and hold property, and to make all contracts that she is mentally competent to make reasonably, as has a married man, or any other man. And any law invalidating her contracts, or forbidding her to enter into contracts, on the ground of her being married, are not only absurd and outrageous in themselves, but are also as plainly violations of that provision of the constitution, which forbids any State to pass any law impairing the natural obligation of contracts, as would be laws invalidating or prohibiting similar contracts by married men.

3. All those State laws, commonly called acts of incorporation, by which a certain number of persons are licensed to contract debts, without having their individual properties held liable to pay them, are laws impairing the natural obligation of their contracts.

On natural principles of law and reason, these persons are simply partners; and their private properties, like those of any other partners, should be held liable for [62] their partnership debts. Like any other partners, they take the profits of their business, if there be any profits. And they are naturally bound to take all the risks of their business, as in the case of any other business. For a law to say that, if they make any profits, they may put them all into their own pockets, but that, if they make a loss, they may throw it upon their creditors, is an absurdity and an outrage. Such a law is plainly a law impairing the natural obligation of their contracts.

4. All State insolvent laws, so-called, that distribute a debtor’s property equally among his creditors, are laws impairing the natural obligation of his contracts.

If the natural obligation of contracts were known, and recognized as law, we should have no need of insolvent or bankrupt laws.

The only force, function, or effect of a legal contract is to convey and bind rights of property. A contract that conveys and binds no right of property, has no legal force, effect, or obligation whatever.*

Consequently, the natural obligation of a contract of debt binds the debtor’s property, and nothing more. That is, it gives the creditor a mortgage upon the debtor’s property, and nothing more.

A first debt is a first mortgage; a second debt is a second mortgage; a third debt is a third mortgage; and so on indefinitely.

The first mortgage must be paid in full, before anything is paid on the second. The second must be paid in full, before anything is paid on the third; and so on indefinitely.

When the mortgaged property is exhausted, the debt is cancelled; there is no other property that the contract binds.

If, therefore, a debtor, at the time his debt becomes due, pays to the extent of his ability, and has been guilty of no fraud, fault, or neglect, during the time his debt had to run, he is thenceforth discharged from all legal obligation.

If this principle were acknowledged, we should have no occasion, and no use, for insolvent or bankrupt laws.

Of course, persons who have never asked themselves what the natural “obligation of contracts” is, will raise numerous objections to the principle, that a legal contract binds nothing else than rights of property. But their objections are all shallow and fallacious.

I have not space here to go into all the arguments that may be necessary to prove that contracts can have no legal effect, except to bind rights of property; or to show the truth of that principle in its application to all contracts whatsoever. To do this would require a somewhat elaborate treatise. Such a treatise I hope sometime to publish. For the present, I only assert the principle; and assert that the ignorance of this truth is at least one of the reasons why courts and lawyers have never been able to agree as to what “the obligation of contracts” was.

[63]

In all the cases that have now been mentioned,—that is, of minors (so-called), married women, corporations, insolvents, and in all other like cases—the tricks, or pretences, by which the courts attempt to uphold the validity of all laws that forbid persons to exercise their natural right to make their own contracts, or that annul, or impair, the natural “obligation” of their contracts, are these:

1. They say that, if a law forbids any particular contract to be made, such contract, being then an illegal one, can have no “obligation.” Consequently, say they, the law cannot be said to impair it; because the law cannot impair an “obligation,” that has never had an existence.

They say this of all contracts, that are arbitrarily forbidden; although, naturally and intrinsically, they have as valid an obligation as any others that men ever enter into, or as any that courts enforce.

By such a naked trick as this, these courts not only strike down men’s natural right to make their own contracts, but even seek to evade that provision of the constitution, which they are all sworn to support, and which commands them to hold valid the natural “obligation” of all men’s contracts; “anything in the constitutions or laws of the States to the contrary notwithstanding.”

They might as well have said that, if the constitution had declared that “no State shall pass any law impairing any man’s natural right to life, liberty, or property”—(that is, his natural right to live, and do what he will with himself and his property, so long as he infringes the right of no other person)—this prohibition could be evaded by a State law declaring that, from and after such a date, no person should have any natural right to life, liberty, or property; and that, therefore, a law arbitrarily taking from a man his life, liberty, and property, could not be said to impair his right to them, because no law could impair a right that did not exist.

The answer to such an argument as this, would be, that it is a natural truth that every man, who ever has been, or ever will be, born into the world, necessarily has been, and necessarily will be, born with an inherent right to life, liberty, and property; and that, in forbidding this right to be impaired, the constitution presupposes, implies, assumes, and asserts that every man has, and will have, such a right; and that this natural right is the very right, which the constitution forbids any State law to impair.

Or the courts might as well have said that, if the constitution had declared that “no State shall pass any law impairing the obligation of contracts made for the purchase of food,” that provision could have been evaded by a State law forbidding any contract to be made for the purchase of food; and then saying that such contract, being illegal, could have no “obligation,” that could be impaired.

The answer to this argument would be that, by forbidding any State law impairing the obligation of contracts made for the purchase of food, the constitution presupposes, implies, assumes, and asserts that such contracts have, and always [64] will have, a natural “obligation”; and that this natural “obligation” is the very “obligation,” which the constitution forbids any State law to impair.

So in regard to all other contracts. The constitution presupposes, implies, assumes, and asserts the natural truth, that certain contracts have, and always necessarily will have, a natural “obligation.” And this natural “obligation”—which is the only real obligation that any contract can have—is the very one that the constitution forbids any State law to impair, in the case of any contract whatever that has such obligation.

And yet all the courts hold the direct opposite of this. They hold that, if a State law forbids any contract to be made, such a contract can then have no obligation; and that, consequently, no State law can impair an obligation that never existed.

But if, by forbidding a contract to be made, a State law can prevent the contract’s having any obligation, State laws, by forbidding any contracts at all to be made, can prevent all contracts, thereafter made, from having any obligation; and thus utterly destroy all men’s natural rights to make any obligatory contracts at all.

2. A second pretence, by which the courts attempt to evade that provision of the constitution, which forbids any State to “pass any law impairing the obligation of contracts,” is this: They say that the State law, that requires, or obliges, a man to fulfil his contracts, is itself “the obligation,” which the constitution forbids to be impaired; and that therefore the constitution only prohibits the impairing of any law for enforcing such contracts as shall be made under it.

But this pretence, it will be seen, utterly discards the idea that contracts have any natural obligation. It implies that contracts have no obligation, except the laws that are made for enforcing them. But if contracts have no natural obligation, they have no obligation at all, that ought to be enforced; and the State is a mere usurper, tyrant, and robber, in passing any law to enforce them.

Plainly a State cannot rightfully enforce any contracts at all, unless they have a natural obligation.

3. A third pretence, by which the courts attempt to evade this provision of the constitution, is this: They say that “the law is a part of the contract” itself; and therefore cannot impair its obligation.

By this they mean that, if a law is standing upon the statute book, prescribing what obligation certain contracts shall, or shall not, have, it must then be presumed that, whenever such a contract is made, the parties intended to make it according to that law; and really to make the law a part of their contract; although they themselves say nothing of the kind.

This pretence, that the law is a part of the contract, is a mere trick to cheat people out of their natural right to make their own contracts; and to compel them to make only such contracts as the lawmakers choose to permit them to make.

[65]

To say that it must be presumed that the parties intended to make their contracts according to such laws as may be prescribed to them—or, what is the same thing, to make the laws a part of their contracts—is equivalent to saying that the parties must be presumed to have given up all their natural right to make their own contracts; to have acknowledged themselves imbeciles, incompetent to make reasonable contracts, and to have authorized the lawmakers to make their contracts for them; for if the lawmakers can make any part of a man’s contract, and presume his consent to it, they can make a whole one, and presume his consent to it.

If the lawmakers can make any part of men’s contracts, they can make the whole of them; and can, therefore, buy and sell, borrow and lend, give and receive men’s property of all kinds, according to their (the lawmakers’) own will, pleasure, or discretion; without the consent of the real owners of the property, and even without their knowledge, until it is too late. In short, they may take any man’s property, and give it, or sell it, to whom they please, and on such conditions, and at such prices, as they please; without any regard to the rights of the owner. They may, in fact, at their pleasure, strip any, or every, man of his property, and bestow it upon whom they will; and then justify the act upon the presumption that the owner consented to have his property thus taken from him and given to others.

This absurd, contemptible, and detestable trick has had a long lease of life, and has been used as a cover for some of the greatest of crimes. By means of it, the marriage contract has been perverted into a contract, on the part of the woman, to make herself a legal non-entity, or non compos mentis; to give up, to her husband, all her personal property, and the control of all her real estate; and to part with her natural, inherent, inalienable right, as a human being, to direct her own labor, control her own earnings, make her own contracts, and provide for the subsistence of herself and her children.

There would be just as much reason in saying that the lawmakers have a right to make the entire marriage contract; to marry any man and woman against their will; dispose of all their personal and property rights; declare them imbeciles, incapable of making a reasonable marriage contract; then presume the consent of both the parties; and finally treat them as criminals, and their children as outcasts, if they presume to make any contract of their own.

This same trick, of holding that the law is a part of the contract, has been made to protect the private property of stockholders from liability for the debts of the corporations, of which they were members; and to protect the private property of special partners, so-called, or limited partners, from liability for partnership debts.

This same trick has been employed to justify insolvent and bankrupt laws, so-called, whereby a first creditor’s right to a first mortgage on the property of his debtor, has been taken from him, and he has been compelled to take his chances with as many subsequent creditors as the debtor may succeed in becoming indebted to

[66]

All these absurdities and atrocities have been practiced by the lawmakers of the States, and sustained by the courts, under the pretence that they (the courts) did not know what the natural “obligation of contracts” was; or that, if they did know what it was, the constitution of the United States imposed no restraint upon its unlimited violation by the State lawmakers.

Section XX.

But, not content with having always sanctioned the unlimited power of the State lawmakers to abolish all men’s natural right to make their own contracts, the Supreme Court of the United States has, within the last twenty years, taken pains to assert that congress also has the arbitrary power to abolish the same right.

1. It has asserted the arbitrary power of congress to abolish all men’s right to make their own contracts, by asserting its power to alter the meaning of all contracts, after they are made, so as to make them widely, or wholly, different from what the parties had made them.

Thus the court has said that, after a man has made a contract to pay a certain number of dollars, at a future time,—meaning such dollars as were current at the time the contract was made,—congress has power to coin a dollar of less value than the one agreed on, and authorize the debtor to pay his debt with a dollar of less value than the one he had promised.

To cover up this infamous crime, the court asserts, over and over again,—what no one denies,—that congress has power (constitutionally speaking) to alter, at pleasure, the value of its coins. But it then asserts that congress has this additional, and wholly different, power, to wit, the power to declare that this alteration in the value of the coins shall work a corresponding change in all existing contracts for the payment of money.

In reality they say that a contract to pay money is not a contract to pay any particular amount, or value, of such money as was known and understood by the parties at the time the contract was made, but only such, and so much, as congress shall afterwards choose to call by that name, when the debt shall become due.

They assert that, by simply retaining the name, while altering the thing,—or by simply giving an old name to a new thing,—congress has power to utterly abolish the contract which the parties themselves entered into, and substitute for it any such new and different one, as they (congress) may choose to substitute.

Here are their own words:

The contract obligation . . . . was not a duty to pay gold or silver, or the kind of money recognized by law at the time when the contract was made, nor was it a duty to pay money of equal intrinsic value in the market. . . . . But the obligation of a contract to pay money is to pay that which the law shall recognize as money when the payment is to be made.—Legal Tender Cases, 12 Wallace 548.

[67]

This is saying that the obligation of a contract to pay money is not an obligation to pay what both the law and the parties recognize as money, at the time when the contract is made, but only such substitute as congress shall afterwards prescribe, “when the payment is to be made.”

This opinion was given by a majority of the court in the year 1870.

In another opinion the court says:

Under the power to coin money, and to regulate its value, congress may issue coins of the same denomination [that is, bearing the same name] as those already current by law, but of less intrinsic value than those, by reason of containing a less weight of the precious metals, and thereby enable debtors to discharge their debts by the payment of coins of the less real value. A contract to pay a certain sum of money, without any stipulation as to the kind of money in which it shall be made, may always be satisfied by payment of that sum [that is, that nominal amount] in any currency which is lawful money at the place and time at which payment is to be made.—Juilliard vs. Greenman, 110 U. S. Reports, 449.

This opinion was given by the entire court—save one, Field—at the October term of 1883.

Both these opinions are distinct declarations of the power of congress to alter men’s contracts, after they are made, by simply retaining the name, while altering the thing, that is agreed to be paid.

In both these cases, the court means distinctly to say that, after the parties to a contract have agreed upon the number of dollars to be paid, congress has power to reduce the value of the dollar, and authorize all debtors to pay the less valuable dollar, instead of the one agreed on.

In other words, the court means to say that, after a contract has been made for the payment of a certain number of dollars, congress has power to alter the meaning of the word dollar, and thus authorize the debtor to pay in something different from, and less valuable than, the thing he agreed to pay.

Well, if congress has power to alter men’s contracts, after they are made, by altering the meaning of the word dollar, and thus reducing the value of the debt, it has a precisely equal power to increase the value of the dollar, and thus compel the debtor to pay more than he agreed to pay.

Congress has evidently just as much right to increase the value of the dollar, after a contract has been made, as it has to reduce its value. It has, therefore, just as much right to cheat debtors, by compelling them to pay more than they agreed to pay, as it has to cheat creditors, by compelling them to accept less than they agreed to accept.

All this talk of the court is equivalent to asserting that congress has the right to alter men’s contracts at pleasure, after they are made, and make them over into something, or anything, wholly different from what the parties themselves had made them.

And this is equivalent to denying all men’s right to make their own contracts, [68] or to acquire any contract rights, which congress may not afterward, at pleasure, alter, or abolish.

It is equivalent to saying that the words of contracts are not to be taken in the sense in which they are used, by the parties themselves, at the time when the contracts are entered into, but only in such different senses as congress may choose to put upon them at any future time.

If this is not asserting the right of congress to abolish altogether men’s natural right to make their own contracts, what is it?

Incredible as such audacious villainy may seem to those unsophisticated persons, who imagine that a court of law should be a court of justice, it is nevertheless true, that this court intended to declare the unlimited power of congress to alter, at pleasure, the contracts of parties, after they have been made, by altering the kind and amount of money by which the contracts may be fulfilled. That they intended all this, is proved, not only by the extracts already given from their opinions, but also by the whole tenor of their arguments—too long to be repeated here—and more explicitly by these quotations, viz.:

There is no well-founded distinction to be made between the constitutional validity of an act of congress declaring treasury notes a legal tender for the payment of debts contracted after its passage, and that of an act making them a legal tender for the discharge of all debts, as well those incurred before, as those made after, its enactment.—Legal Tender Cases, 12 Wallace 530 (1870).

Every contract for the payment of money, simply, is necessarily subject to the constitutional power of the government over the currency, whatever that power may be, and the obligation of the parties is, therefore, assumed with reference to that power.—12 Wallace 549.

Contracts for the payment of money are subject to the authority of congress, at least so far as relates to the means of payment.—12 Wallace 549.

The court means here to say that “every contract for the payment of money, simply,” is necessarily made, by the parties, subject to the power of congress to alter it afterward—by altering the kind and value of the money with which it may be paid—into anything, into which they (congress) may choose to alter it.

And this is equivalent to saying that all such contracts are made, by the parties, with the implied understanding that the contracts, as written and signed by themselves, do not bind either of the parties to anything; but that they simply suggest, or initiate, some non-descript or other, which congress may afterward convert into a binding contract, of such a sort, and only such a sort, as they (congress) may see fit to convert it into.

Every one of these judges knew that no two men, having common honesty and common sense,—unless first deprived of all power to make their own contracts,—would ever enter into a contract to pay money, with any understanding that the government had any such arbitrary power as the court here ascribes to it, to alter [69] their contract after it should be made. Such an absurd contract would, in reality, be no legal contract at all. It would be a mere gambling agreement, having, naturally and really, no legal “obligation” at all.

But further. A solvent contract to pay money is in reality—in law, and in equity—a bona fide mortgage upon the debtor’s property. And this mortgage right is as veritable a right of property, as is any right of property, that is conveyed by a warranty deed. And congress has no more right to invalidate this mortgage, by a single iota, than it has to invalidate a warranty deed of land. And these judges will sometime find out that such is “the obligation of contracts,” if they ever find out what “the obligation of contracts” is.

The justices of that court have had this question—what is “the obligation of contracts”?—before them for seventy years, and more. But they have never agreed among themselves—even by so many as a majority—as to what it is. And this disagreement is very good evidence that none of them have known what it is; for if any one of them had known what it is, he would doubtless have been able, long ago, to enlighten the rest.

Considering the vital importance of men’s contracts, it would evidently be more to the credit of these judges, if they would give their attention to this question of “the obligation of contracts,” until they shall have solved it, than it is to be telling fifty millions of people that they have no right to make any contracts at all, except such as congress has power to invalidate after they shall have been made. Such assertions as this, coming from a court that cannot even tell us what “the obligation of contracts” is, are not entitled to any serious consideration. On the contrary, they show us what farces and impostures these judicial opinions—or decisions, as they call them—are. They show that these judicial oracles, as men call them, are no better than some of the other so-called oracles, by whom mankind have been duped.

But these judges certainly never will find out what “the obligation of contracts” is, until they find out that men have the natural right to make their own contracts, and unalterably fix their “obligation”; and that governments can have no power whatever to make, unmake, alter, or invalidate that “obligation.”

Still further. Congress has the same power over weights and measures that it has over coins. And the court has no more right or reason to say that congress has power to alter existing contracts, by altering the value of the coins, than it has to say that, after any or all men have, for value received, entered into contracts to deliver so many bushels of wheat or other grain, so many pounds of beef, pork, butter, cheese, cotton, wool, or iron, so many yards of cloth, or so many feet of lumber, congress has power, by altering these weights and measures, to alter all these existing contracts, so as to convert them into contracts to deliver only half as many, or to deliver twice as many, bushels, pounds, yards, or feet, as the parties agreed upon.

[70]

To add to the farce, as well as to the iniquity, of these judicial opinions, it must be kept in mind, that the court says that, after A has sold valuable property to B, and has taken in payment an honest and sufficient mortgage on B’s property, congress has the power to compel him (A) to give up this mortgage, and to accept, in place of it, not anything of any real value whatever, but only the promissory note of a so-called government; and that government one which—if taxation without consent is robbery—never had an honest dollar in its treasury, with which to pay any of its debts, and is never likely to have one; but relies wholly on its future robberies for its means to pay them; and can give no guaranty, but its own interest at the time, that it will even make the payment out of its future robberies.

If a company of bandits were to seize a man’s property for their own uses, and give him their note, promising to pay him out of their future robberies, the transaction would not be considered a very legitimate one. But it would be intrinsically just as legitimate as is the one which the Supreme Court sanctions on the part of congress.

Banditti have not usually kept supreme courts of their own, to legalize either their robberies, or their promises to pay for past robberies, out of the proceeds of their future ones. Perhaps they may now take a lesson from our Supreme Court, and establish courts of their own, that will hereafter legalize all their contracts of this kind.

Section XXI.

To justify its declaration, that congress has power to alter men’s contracts after they are made, the court dwells upon the fact that, at the times when the legal-tender acts were passed, the government was in peril of its life; and asserts that it had therefore a right to do almost anything for its self-preservation, without much regard to its honesty, or dishonesty, towards private persons. Thus it says:

A civil war was then raging, which seriously threatened the overthrow of the government, and the destruction of the constitution itself. It demanded the equipment and support of large armies and navies, and the employment of money to an extent beyond the capacity of all ordinary sources of supply. Meanwhile the public treasury was nearly empty, and the credit of the government, if not stretched to its utmost tension, bad become nearly exhausted. Moneyed institutions had advanced largely of their means, and more could not be expected of them. They had been compelled to suspend specie payments. Taxation was inadequate to pay even the interest on the debt already incurred, and it was impossible to await the income of additional taxes. The necessity was immediate and pressing. The army was unpaid. There was then due to the soldiers in the field nearly a score of millions of dollars. The requisitions from the War and Navy departments for supplies, exceeded fifty millions, and the current expenditure was over one million per day. . . . . Foreign credit we had none. We say nothing of the overhanging paralysis of trade, and business generally, which threatened loss of confidence in the ability of the government to maintain its continued existence, and therewith the complete destruction of all remaining national credit.

[71]

It was at such a time, and in such circumstances, that congress was called upon to devise means for maintaining the army and navy, for securing the large supplies of money needed, and indeed for the preservation of the government created by the constitution. It was at such a time, and in such an emergency, that the legal-tender acts were passed.—12 Wallace 540-1.

In the same case Bradley said:

Can the poor man’s cattle, and horses, and corn be thus taken by the government, when the public exigency requires it, and cannot the rich man’s bonds and notes be in like manner taken to reach the same end?—p. 561.

He also said:

It is absolutely essential to independent national existence that government should have a firm hold on the two great instrumentalities of the sword and the purse, and the right to wield them without restriction, on occasions of national peril. In certain emergencies government must have at its command, not only the personal services—the bodies and lives—of its citizens, but the lesser, though not less essential, power of absolute control over the resources of the country. Its armies must be filled, and its navies manned, by the citizens in person.—p. 563.

Also he said:

The conscription may deprive me of liberty, and destroy my life. . . . . All these are fundamental political conditions on which life, property, and money are respectively held and enjoyed under our system of government, nay, under any system of government. There are times when the exigencies of the State rightly absorb all subordinate considerations of private interest, convenience, and feeling.—p. 565.

Such an attempt as this, to justify one crime, by taking for granted the justice of other and greater crimes, is a rather desperate mode of reasoning, for a court of law; to say nothing of a court of justice. The answer to it is, that no government, however good in other respects—any more than any other good institution—has any right to live otherwise than on purely voluntary support. It can have no right to take either “the poor man’s cattle, and horses, and corn,” or “the rich man’s bonds and notes,” or poor men’s “bodies and lives,” without their consent. And when a government resorts to such measures to save its life, we need no further proof that its time to die has come. A good government, no more than a bad one, has any right to live by robbery, murder, or any other crime.

But so think not the Justices of the Supreme Court of the United States. On the contrary, they hold that, in comparison with the preservation of the government, all the rights of the people to property, liberty, and life are worthless things, not to be regarded. So they hold that in such an exigency as they describe, congress had the right to commit any crime against private persons, by which the government could be saved. And among these lawful crimes, the court holds that [72] congress had the right to issue money that should serve as a license to all holders of it, to cheat—or rather openly rob—their creditors.

The court might, with just as much reason, have said that, to preserve the life of the government, congress had the right to issue such money as would authorize all creditors to demand twice the amount of their honest dues from all debtors.

The court might, with just as much reason, have said that, to preserve the life of the government, congress had the right to sell indulgences for all manner of crimes; for theft, robbery, rape, murder, and all other crimes, for which indulgences would bring a price in the market.

Can any one imagine it possible that, if the government had always done nothing but that “equal and exact justice to all men”—which you say it is pledged to do,—but which you must know it has never done,—it could ever have been brought into any such peril of its life, as these judges describe? Could it ever have been necessitated to take either “the poor man’s cattle, and horses, and corn,” or “the rich man’s bonds and notes,” or poor men’s “bodies and lives,” without their consent? Could it ever have been necessitated to “conscript” the poor man—too poor to pay a ransom of three hundred dollars—made thus poor by the tyranny of the government itself—“deprive him of his liberty, and destroy his life”? Could it ever have been necessitated to sell indulgences for crime to either debtors, or creditors, or anybody else? To preserve “the constitution”—a constitution, I repeat, that authorized nothing but “equal and exact justice to all men”—could it ever have been necessitated to send into the field millions of ignorant young men, to cut the throats of other young men as ignorant as themselves—few of whom, on either side, had ever read the constitution, or had any real knowledge of its legal meaning; and not one of whom had ever signed it, or promised to support it, or was under the least obligation to support it?

It is, I think, perfectly safe to say, that not one in a thousand, probably not one in ten thousand, of these young men, who were sent out to butcher others, and be butchered themselves, had any real knowledge of the constitution they were professedly sent out to support; or any reasonable knowledge of the real character and motives of the congresses and courts that profess to administer the constitution. If they had possessed this knowledge, how many of them would have ever gone to the field?

But further. Is it really true that the right of the government to commit all these atrocities:

Are the fundamental political conditions on which life, property, and money are respectively held and enjoyed under our system of government?

If such is the real character of the constitution, can any further proof be required of the necessity that it be buried out of sight at once and forever?

The truth was that the government was in peril, solely because it was not fit to exist. [73] It, and the State governments—all but parts of one and the same system—were rotten with tyranny and crime. And being bound together by no honest tie, and existing for no honest purpose, destruction was the only honest doom to which any of them were entitled. And if we had spent the same money and blood to destroy them, that we did to preserve them, it would have been ten thousand times more creditable to our intelligence and character as a people.

Clearly the court has not strengthened its case at all by this picture of the peril in which the government was placed. It has only shown to what desperate straits a government, founded on usurpation and fraud, and devoted to robbery and oppression, may be brought, by the quarrels that are liable to arise between the different factions—that is, the different bands of robbers—of which it is composed. When such quarrels arise, it is not to be expected that either faction—having never had any regard to human rights, when acting in concert with the other—will hesitate at any new crimes that may be necessary to prolong its existence.

Here was a government that had never had any legitimate existence. It professedly rested all its authority on a certain paper called a constitution; a paper, I repeat, that nobody had ever signed, that few persons had ever read, that the great body of the people had never seen. This government had been imposed, by a few property holders, upon a people too poor, too scattered, and many of them too ignorant, to resist. It had been carried on, for some seventy years, by a mere cabal of irresponsible men, called lawmakers. In this cabal, the several local bands of robbers—the slaveholders of the South, the iron monopolists, the woollen monopolists, and the money monopolists, of the North—were represented. The whole purpose of its laws was to rob and enslave the many—both North and South—for the benefit of a few. But these robbers and tyrants quarreled—as lesser bands of robbers have done—over the division of their spoils. And hence the war. No such principle as justice to anybody—black or white—was the ruling motive on either side.

In this war, each faction—already steeped in crime—plunged into new, if not greater, crimes. In its desperation, it resolved to destroy men and money, without limit, and without mercy, for the preservation of its existence. The northern faction, having more men, money, and credit than the southern, survived the Kilkenny fight. Neither faction cared anything for human rights then, and neither of them has shown any regard for human rights since. “As a war measure,” the northern faction found it necessary to put an end to the one great crime, from which the southern faction had drawn its wealth. But all other government crimes have been more rampant since the war, than they were before. Neither the conquerors, nor the conquered, have yet learned that no government can have any right to exist for any other purpose than the simple maintenance of justice between man and man.

And now, years after the fiendish butchery is over, and after men would seem [74] to have had time to come to their senses, the Supreme Court of the United States, representing the victorious faction, comes forward with the declaration that one of the crimes—the violation of men’s private contracts—resorted to by its faction, in the heat of conflict, as a means of preserving its power over the other, was not only justifiable and proper at the time, but that it is also a legitimate and constitutional power, to be exercised forever hereafter in time of peace!

Mark the knavery of these men. They first say that, because the government was in peril of its life, it had a right to license great crimes against private persons, if by so doing it could raise money for its own preservation. Next they say that, although the government is no longer in peril of its life, it may still go on forever licensing the same crimes as it was before necessitated to license!

They thus virtually say that the government may commit the same crimes in time of peace, that it is necessitated to do in time of war; and, that, consequently, it has the same right to “take the poor man’s cattle, and horses, and corn,” and “the rich man’s bonds and notes,” and poor men’s “bodies and lives,” in time of peace, when no necessity whatever can be alleged, as in time of war, when the government is in peril of its life.

In short, they virtually say, that this government exists for itself alone; and that all the natural rights of the people, to property, liberty, and life, are mere baubles, to be disposed of, at its pleasure, whether in time of peace, or in war.

Section XXII.

As if to place beyond controversy the fact, that the court may forever hereafter be relied on to sanction every usurpation and crime that congress will ever dare to put into the form of a statute, without the slightest color of authority from the constitution, necessity, utility, justice, or reason, it has, on three separate occasions, announced its sanction of the monopoly of money, as finally established by congress in 1866, and continued in force ever since.

This monopoly is established by a prohibitory tax—a tax of ten per cent.—on all notes issued for circulation as money, other than the notes of the United States and the national banks.

This ten per cent. is called a “tax,” but is really a penalty, and is intended as such, and as nothing else. Its whole purpose is—not to raise revenue—but solely to establish a monopoly of money, by prohibiting the issue of all notes intended for circulation as money, except those issued, or specially licensed, by the government itself.

This prohibition upon the issue of all notes, except those issued, or specially licensed, by the government, is a prohibition upon all freedom of industry and traffic. It is a prohibition upon the exercise of men’s natural right to lend and hire such money capital as all men need to enable them to create and distribute [75] wealth, and supply their own wants, and provide for their own happiness. Its whole purpose is to reduce, as far as possible, the great body of the people to the condition of servants to a few—a condition but a single grade above that of chattel slavery—in which their labor, and the products of their labor, may be extorted from them at such prices only as the holders of the monopoly may choose to give.

This prohibitory tax—so-called—is therefore really a penalty imposed upon the exercise of men’s natural right to create and distribute wealth, and provide for their own and each other’s wants. And it is imposed solely for the purpose of establishing a practically omnipotent monopoly in the hands of a few.

Calling this penalty a “tax” is one of the dirty tricks, or rather downright lies—that of calling things by false names—to which congress and the courts resort, to hide their usurpations and crimes from the common eye.

Everybody—who believes in the government—says, of course, that congress has power to levy taxes; that it must do so to raise revenue for the support of the government. Therefore this lying congress call this penalty a “tax,” instead of calling it by its true name, a penalty.

It certainly is no tax, because no revenue is raised, or intended to be raised, by it. It is not levied upon property, or persons, as such, but only upon a certain act, or upon persons for doing a certain act; an act that is not only perfectly innocent and lawful in itself, but that is naturally and intrinsically useful, and even indispensable for the prosperity and welfare of the whole people. Its whole object is simply to deter everybody—except those specially licensed—from performing this innocent, useful, and necessary act. And this it has succeeded in doing for the last twenty years; to the destruction of the rights, and the impoverishment and immeasurable injury of all the people, except the few holders of the monopoly.

If congress had passed an act, in this form, to wit:

No person, nor any association of persons, incorporated or unincorporated—unless specially licensed by congress—shall issue their promissory notes for circulation as money; and a penalty of ten per cent. upon the amount of all such notes shall be imposed upon the persons issuing them,

the act would have been the same, in effect and intention, as is this act, that imposes what it calls a “tax.” The penalty would have been understood by everybody as a punishment for issuing the notes; and would have been applied to, and enforced against, those only who should have issued them. And it is the same with this so-called tax. It will never be collected, except for the same cause, and under the same circumstances, as the penalty would have been. It has no more to do with raising a revenue, than the penalty would have had. And all these lying lawmakers and courts know it.

But if congress had put this prohibition distinctly in the form of a penalty, the usurpation would have been so barefaced—so destitute of all color of constitutional [76] authority—that congress dared not risk the consequences. And possibly the court might not have dared to sanction it; if, indeed, there be any crime or usurpation which the court dare not sanction. So these knavish lawmakers called this penalty a “tax”; and the court says that such a “tax” is clearly constitutional. And the monopoly has now been established for twenty years. And substantially all the industrial and financial troubles of that period have been the natural consequences of the monopoly.

If congress had laid a prohibitory tax upon all food—that is, had imposed a penalty upon the production and sale of all food—except such as it should have itself produced, or specially licensed; and should have reduced the amount of food, thus produced or licensed, to one tenth, twentieth, or fiftieth of what was really needed; the motive and the crime would have been the same, in character, if not in degree, as they are in this case, viz., to enable the few holders of the licensed food to extort, from everybody else, by the fear of starvation, all their (the latter’s) earnings and property, in exchange for this small quantity of privileged food.

Such a monopoly of food would have been no clearer violation of men’s natural rights, than is the present monopoly of money. And yet this colossal crime—like every other crime that congress chooses to commit—is sanctioned by its servile, rotten, and stinking court.

On what constitutional grounds—that is, on what provisions found in the constitution itself—does the court profess to give its sanction to such a crime?

On these three only:

- 1. On the power of congress to lay and collect taxes, etc.

- 2. On the power of congress to coin money.

- 3. On the power of congress to borrow money.

Out of these simple, and apparently harmless provisions, the court manufactures an authority to grant, to a few persons, a monopoly that is practically omnipotent over all the industry and traffic of the country; that is fatal to all other men’s natural right to lend and hire capital for any or all their legitimate industries; and fatal absolutely to all their natural right to buy, sell, and exchange any, or all, the products of their labor at their true, just, and natural prices.

Let us look at these constitutional provisions, and see how much authority congress can really draw from them.

1. The constitution says:

The congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defence and general welfare of the United States.

This provision plainly authorizes no taxation whatever, except for the raising of revenue to pay the debts and legitimate expenses of the government. It no more authorizes taxation for the purpose of establishing monopolies of any kind whatever, than it does for taking openly and boldly all the property of the many, [77] and giving it outright to a few. And none but a congress of usurpers, robbers, and swindlers would ever think of using it for that purpose.

The court says, in effect, that this provision gives congress power to establish the present monopoly of money; that the power to tax all other money, is a power to prohibit all other money; and a power to prohibit all other money is a power to give the present money a monopoly.

How much is such an argument worth? Let us show by a parallel case, as follows.

Congress has the same power to tax all other property, that it has to tax money. And if the power to tax money is a power to prohibit money, then it follows that the power of congress to tax all other property than money, is a power to prohibit all other property than money; and a power to prohibit all other property than money, is a power to give monopolies to all such other property as congress may not choose to prohibit; or may choose to specially license.

On such reasoning as this, it would follow that the power of congress to tax money, and all other property, is a power to prohibit all money, and all other property; and thus to establish monopolies in favor of all such money, and all such other property, as it chooses not to prohibit; or chooses to specially license.

Thus, this reasoning would give congress power to establish all the monopolies, it may choose to establish, not only in money, but in agriculture, manufactures, and commerce; and protect these monopolies against infringement, by imposing prohibitory taxes upon all money and other property, except such as it should choose not to prohibit; or should choose to specially license.

Because the constitution says that “congress shall have power to lay and collect taxes,” etc., to raise the revenue necessary for paying the current expenses of the government, the court say that congress have power to levy prohibitory taxes—taxes that shall yield no revenue at all—but shall operate only as a penalty upon all industries and traffic, and upon the use of all the means of industry and traffic, that shall compete with such monopolies as congress shall choose to grant.

This is no more than an unvarnished statement of the argument, by which the court attempts to justify a prohibitory “tax” upon money; for the same reasoning would justify the levying of a prohibitory tax—that is, penalty—upon the use of any and all other means of industry and traffic, by which any other monopolies, granted by congress, might be infringed.

There is plainly no more connection between the “power to lay and collect taxes,” etc., for the necessary expenses of the government, and the power to establish this monopoly of money, than there is between such a power of taxation, and a power to punish, as a crime, any or all industry and traffic whatsoever, except such as the government may specially license.

This whole cheat lies in the use of the word “tax,” to describe what is really a penalty, upon the exercise of any or all men’s natural rights of providing for their subsistence and well-being. And none but corrupt and rotten congresses and courts would ever think of practising such a cheat.

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2. The second provision of the constitution, relied on by the court to justify the monopoly of money, is this:

The congress shall have power to coin money, regulate the value thereof, and of foreign coins.

The only important part of this provision is that which says that “the congress shall have power to coin money, [and] regulate the value thereof.”

That part about regulating the value of foreign coins—if any one can tell how congress can regulate it—is of no appreciable importance to anybody; for the coins will circulate, or not, as men may, or may not, choose to buy and sell them as money, and at such value as they will bear in free and open market,—that is, in competition with all other coins, and all other money. This is their only true and natural market value; and there is no occasion for congress to do anything in regard to them.

The only thing, therefore, that we need to look at, is simply the power of congress “to coin money.”

So far as congress itself is authorized to coin money, this is simply a power to weigh and assay metals,—gold, silver, or any other,—stamp upon them marks indicating their weight and fineness, and then sell them to whomsoever may choose to buy them; and let them go in the market for whatever they may chance to bring, in competition with all other money that may chance to be offered there.

It is no power to impose any restrictions whatever upon any or all other honest money, that may be offered in the market, and bought and sold in competition with the coins weighed and assayed by the government.

The power itself is a frivolous one, of little or no utility; for the weighing and assaying of metals is a thing so easily done, and can be done by so many different persons, that there is certainly no necessity for its being done at all by a government. And it would undoubtedly have been far better if all coins—whether coined by governments or individuals—had all been made into pieces bearing simply the names of pounds, ounces, pennyweights, etc., and containing just the amounts of pure metal described by those weights. The coins would then have been regarded as only so much metal; and as having only the same value as the same amount of metal in any other form. Men would then have known exactly how much of certain metals they were buying, selling, and promising to pay. And all the jugglery, cheating, and robbery that governments have practised, and licensed individuals to practise—by coining pieces bearing the same names, but having different amounts of metal—would have been avoided.

And all excuses for establishing monopolies of money, by prohibiting all other money than the coins, would also have been avoided.

As it is, the constitution imposes no prohibition upon the coining of money by individuals, but only by State governments. Individuals are left perfectly free to [79] coin it, except that they must not “counterfeit the securities and current coin of the United States.”

For quite a number of years after the discovery of gold in California—that is, until the establishment of a government mint there—a large part of the gold that was taken out of the earth, was coined by private persons and companies; and this coinage was perfectly legal. And I do not remember to have ever heard any complaint, or accusation, that it was not honest and reliable.

The true and only value, which the coins have as money, is that value which they have as metals, for uses in the arts,—that is, for plate, watches, jewelry, and the like. This value they will retain, whether they circulate as money, or not. At this value, they are so utterly inadequate to serve as bona fide equivalents for such other property as is to be bought and sold for money; and, after being minted, are so quickly taken out of circulation, and worked up into articles of use—plate, watches, jewelry, etc.—that they are practically of almost no importance at all as money.

But they can be so easily and cheaply carried from one part of the world to another, that they have substantially the same market value all over the world. They are also, in but a small degree, liable to great or sudden changes in value. For these reasons, they serve well as standards—are perhaps the best standards we can have—by which to measure the value of all other money, as well as other property. But to give them any monopoly as money, is to deny the natural right of all men to make their own contracts, and buy and sell, borrow and lend, give and receive, all such money as the parties to bargains may mutually agree upon; and also to license the few holders of the coins to rob all other men in the prices of the latter’s labor and property.

3. The third provision of the constitution, on which the court relies to justify the monopoly of money, is this:

The congress shall have power to borrow money.

Can any one see any connection between the power of congress “to borrow money,” and its power to establish a monopoly of money?

Certainly no such connection is visible to the legal eye. But it is distinctly visible to the political and financial eye; that is, to that class of men, for whom governments exist, and who own congresses and courts, and set in motion armies and navies, whenever they can promote their own interests by doing so.

To a government, whose usurpations and crimes have brought it to the verge of destruction, these men say:

Make bonds bearing six per cent. interest; sell them to us at half their face value; then give us a monopoly of money based upon these bonds—such a monopoly as will subject the great body of the people to a dependence upon us for the necessaries of life, and compel them to sell their labor and property to us at our own prices; then, under pretence of raising [80] revenue to pay the interest and principal of the bonds, impose such a tariff upon imported commodities as will enable us to get fifty per cent. more for our own goods than they are worth; in short, pledge to us all the power of the government to extort for us, in the future, everything that can be extorted from the producers of wealth, and we will lend you all the money you need to maintain your power.

And the government has no alternative but to comply with this infamous proposal, or give up its infamous life.

This is the only real connection there is between the power of congress “to borrow money,” and its power to establish a monopoly of money. It was only by an outright sale of the rights of the whole people, for a long series of years, that the government could raise the money necessary to continue its villainous existence.

Congress had just as much constitutional power “to borrow money,” by the sale of any and all the other natural rights of the people at large, as it had “to borrow money” by the sale of the people’s natural rights to lend and hire money.

When the Supreme Court of the United States—assuming to be an oracle, empowered to define authoritatively the legal rights of every human being in the country—declares that congress has a constitutional power to prohibit the use of all that immense mass of money capital, in the shape of promissory notes, which the real property of the country is capable of supplying and sustaining, and which is sufficient to give to every laboring person, man or woman, the means of independence and wealth—when that court says that congress has power to prohibit the use of all this money capital, and grant to a few men a monopoly of money that shall condemn the great body of wealth-producers to hopeless poverty, dependence, and servitude—and when the court has the audacity to make these declarations on such nakedly false and senseless grounds as those that have now been stated, it is clearly time for the people of this country to inquire what constitutions and governments are good for, and whether they (the people) have any natural right, as human beings, to live for themselves, or only for a few conspirators, swindlers, usurpers, robbers, and tyrants, who employ lawmakers, judges, etc., to do their villainous work upon their fellow-men.

The court gave their sanction to the monopoly of money in these three separate cases, viz.: Veazie Bank vs. Fenno, 8 Wallace, 549 (1869). National Bank vs. United States, 101 U. S. Reports, 5 and 6 (1879). Juliard vs. Greenman, 110 U. S. Reports 445-6 (1884).

Section XXIII.

If anything could add to the disgust and detestation which the monstrous falsifications of the constitution, already described, should excite towards the court that resorts to them, it would be the fact that the court, not content with falsifying to the utmost the constitution itself, goes outside of the constitution, to the tyrannical [81] practices of what it calls the “sovereign” governments of “other civilized nations,” to justify the same practices by our own.

It asserts, over and over again, the idea that our government is a “sovereign” government; that it has the same rights of “sovereignty,” as the governments of “other civilized nations”; especially those in Europe.

What, then, is a “sovereign” government? It is a government that is “sovereign” over all the natural rights of the people. This is the only “sovereignty” that any government can be said to have. Under it, the people have no rights. They are simply “subjects,”—that is, slaves. They have but one law, and one duty, viz., obedience, submission. They are not recognized as having any rights. They can claim nothing as their own. They can only accept what the government chooses to give them. The government owns them and their property; and disposes of them and their property, at its pleasure, or discretion; without regard to any consent, or dissent, on their part.

Such was the “sovereignty” claimed and exercised by the governments of those, so-called, “civilized nations of Europe,” that were in power in 1787, 1788, and 1789, when our constitution was framed and adopted, and the government put in operation under it. And the court now says, virtually, that the constitution intended to give to our government the same “sovereignty” over the natural rights of the people, that those governments had then.

But how did the “civilized governments of Europe” become possessed of such “sovereignty”? Had the people ever granted it to them? Not at all. The governments spurned the idea that they were dependent on the will or consent of their people for their political power. On the contrary, they claimed to have derived it from the only source, from which such “sovereignty” could have been derived; that is, from God Himself.

In 1787, 1788, and 1789, all the great governments of Europe, except England, claimed to exist by what was called “Divine Right.” That is, they claimed to have received authority from God Himself, to rule over their people. And they taught, and a servile and corrupt priesthood taught, that it was a religious duty of the people to obey them. And they kept great standing armies, and hordes of pimps, spies, and ruffians, to keep the people in subjection.

And when, soon afterwards, the revolutionists of France dethroned the king then existing—the Legitimist king, so-called—and asserted the right of the people to choose their own government, these other governments carried on a twenty years’ war against her, to reëstablish the principle of “sovereignty” by “Divine Right.” And in this war, the government of England, although not itself claiming to exist by Divine Right,—but really existing by brute force,—furnished men and money without limit, to reëstablish that principle in France, and to maintain it wherever else, in Europe, it was endangered by the idea of popular rights.

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The principle, then, of “Sovereignty by Divine Right”—sustained by brute force—was the principle on which the governments of Europe then rested; and most of them rest on that principle today. And now the Supreme Court of the United States virtually says that our constitution intended to give to our government the same “sovereignty”—the same absolutism—the same supremacy over all the natural rights of the people—as was claimed and exercised by those “Divine Right” governments of Europe, a hundred years ago!

That I may not be suspected of misrepresenting these men, I give some of their own words as follows:

It is not doubted that the power to establish a standard of value, by which all other values may be measured, or, in other words, to determine what shall be lawful money and a legal tender, is in its nature, and of necessity, a governmental power. It is in all countries exercised by the government.—Hepburn vs. Griswold, 8 Wallace 615.

The court call a power,

To make treasury notes a legal tender for the payment of all debts [private as well as public] a power confessedly possessed by every independent sovereignty other than the United States.—Legal Tender Cases, 12 Wallace, p. 529.

Also, in the same case, it speaks of:

That general power over the currency, which has always been an acknowledged attribute of sovereignty in every other civilized nation than our own.—p. 545.

In this same case, by way of asserting the power of congress to do any dishonest thing that any so-called “sovereign government” ever did, the court say:

Has any one, in good faith, avowed his belief that even a law debasing the current coin, by increasing the alloy [and then making these debased coins a legal tender in payment of debts previously contracted], would be taking private property? It might be impolitic, and unjust, but could its constitutionality be doubted?—p. 552.

In the same case, Bradley said:

As a government, it [the government of the United States] was invested with all the attributes of sovereignty.—p. 555.

Also he said:

Such being the character of the General Government, it seems to be a self-evident proposition that it is invested with all those inherent and implied powers, which, at the time of adopting the constitution, were generally considered to belong to every government, as such, and as being essential to the exercise of its functions.—p. 556.

Also he said:

Another proposition equally clear is, that at the time the constitution was adopted, it was, [83] and for a long time had been, the practice of most, if not all, civilized governments, to employ the public credit as a means of anticipating the national revenues for the purpose of enabling them to exercise their governmental functions.—p. 556.

Also he said:

It is our duty to construe the instrument [the constitution] by its words, in the light of history, of the general nature of government, and the incidents of sovereignty.—p. 55.

Also he said:

The government simply demands that its credit shall be accepted and received by public and private creditors during the pending exigency. Every government has a right to demand this, when its existence is at stake.—p. 560.

Also he said:

These views are exhibited . . . . for the purpose of showing that it [the power to make its notes a legal tender in payment of private debts] is one of those vital and essential powers inhering in every national sovereignty, and necessary to its self-preservation.—p. 564.

In still another legal tender case, the court said:

The people of the United States, by the constitution, established a national government, with sovereign powers, legislative, executive, and judicial.—Juilliard vs. Greenman, 110 U. S. Reports, p. 438.

Also it calls the constitution:

A constitution, establishing a form of government, declaring fundamental principles, and creating a national sovereignty, intended to endure for ages.—p. 439.

Also the court speaks of the government of the United States:

As a sovereign government.—p. 446.

Also it said:

It appears to us to follow, as a logical and necessary consequence, that congress has the power to issue the obligations of the United States in such form, and to impress upon them such qualities as currency, for the purchase of merchandise and the payment of debts, as accord with the usage of other sovereign governments. The power, as incident to the power of borrowing money, and issuing bills or notes of the government for money borrowed, of impressing upon those bills or notes the quality of being a legal tender for the payment of private debts, was a power universally understood to belong to sovereignty, in Europe and America, at the time of the framing and adoption of the constitution of the United States. The governments of Europe, acting through the monarch, or the legislature, according to the distribution of powers under their respective constitutions, had, and have, as sovereign a power of issuing paper money as of stamping coin. This power has been distinctly recognized in an important modern case, ably argued and fully considered, in which the Emperor of Austria, as King of Hungary, obtained from the English Court of Chancery an injunction [84] against the issue, in England, without his license, of notes purporting to be public paper money of Hungary.—p. 447.

Also it speaks of:

Congress, as the legislature of a sovereign nation.—p. 449.

Also it said:

The power to make the notes of the government a legal tender in payment of private debts, being one of the powers belonging to sovereignty in other civilized nations, . . . we are irresistibly impelled to the conclusion that the impressing upon the treasury notes of the United States the quality of being a legal tender in payment of private debts, is an appropriate means, conducive and plainly adapted to the execution of the undoubted powers of congress, consistent with the letter and spirit of the constitution, etc.—p. 450.

On reading these astonishing ideas about “sovereignty”—“sovereignty” over all the natural rights of mankind—“sovereignty,” as it prevailed in Europe “at the time of the framing and adoption of the constitution of the United States”—we are compelled to see that these judges obtained their constitutional law, not from the constitution itself, but from the example of the “Divine Right” governments existing in Europe a hundred years ago. These judges seem never to have heard of the American Revolution, or the French Revolution, or even of the English Revolutions of the seventeenth century—revolutions fought and accomplished to overthrow these very ideas of “sovereignty,” which these judges now proclaim, as the supreme law of this country. They seem never to have heard of the Declaration of Independence, nor of any other declaration of the natural rights of human beings. To their minds, “the sovereignty of governments” is everything; human rights nothing. They apparently cannot conceive of such a thing as a people’s establishing a government as a means of preserving their personal liberty and rights. They can only see what fearful calamities “sovereign governments” would be liable to, if they could not compel their “subjects”—the people—to support them against their will, and at every cost of their property, liberty, and lives. They are utterly blind to the fact, that it is this very assumption of “sovereignty” over all the natural rights of men, that brings governments into all their difficulties, and all their perils. They do not see that it is this very assumption of “sovereignty” over all men’s natural rights, that makes it necessary for the “Divine Right” governments of Europe to maintain not only great standing armies, but also a vile purchased priesthood, that shall impose upon, and help to crush, the ignorant and superstitious people.

These judges talk of “the constitutions” of these “sovereign governments” of Europe, as they existed “at the time of the framing and adoption of the constitution of the United States.” They apparently do not know that those governments had no constitutions at all, except the Will of God, their standing armies, and the judges, lawyers, priests, pimps, spies, and ruffians they kept in their service.

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If these judges had lived in Russia, a hundred years ago, and had chanced to be visited with a momentary spasm of manhood—a fact hardly to be supposed of such creatures—and had been sentenced therefor to the knout, a dungeon, or Siberia, would we ever afterward have seen them, as judges of our Supreme Court, declaring that government to be the model after which ours was formed?

These judges will probably be surprised when I tell them that the constitution of the United States contains no such word as “sovereign,” or “sovereignty”; that it contains no such word as “subjects”; nor any word that implies that the government is “sovereign,” or that the people are “subjects.” At most, it contains only the mistaken idea that a power of making laws—by lawmakers chosen by the people—was consistent with, and necessary to, the maintenance of liberty and justice for the people themselves. This mistaken idea was, in some measure, excusable in that day, when reason and experience had not demonstrated, to their minds, the utter incompatibility of all lawmaking whatsoever with men’s natural rights.

The only other provision of the constitution, that can be interpreted as a declaration of “sovereignty” in the government, is this:

This constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land, and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding.—Art. VI.

This provision I interpret to mean simply that the constitution, laws, and treaties of the United States, shall be “the supreme law of the land”—not anything in the natural rights of the people to liberty and justice, to the contrary notwithstanding—but only that they shall be “the supreme law of the land,” “anything in the constitution or laws of any State to the contrary notwithstanding,”—that is, whenever the two may chance to conflict with each other.

If this is its true interpretation, the provision contains no declaration of “sovereignty” over the natural rights of the people.

Justice is “the supreme law” of this, and all other lands; anything in the constitutions or laws of any nation to the contrary notwithstanding. And if the constitution of the United States intended to assert the contrary, it was simply an audacious lie—a lie as foolish as it was audacious—that should have covered with infamy every man who helped to frame the constitution, or afterward sanctioned it, or that should ever attempt to administer it.

Inasmuch as the constitution declares itself to have been “ordained and established” by

We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity,

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everybody who attempts to administer it, is bound to give it such an interpretation, and only such an interpretation, as is consistent with, and promotive of, those objects, if its language will admit of such an interpretation.

To suppose that “the people of the United States” intended to declare that the constitution and laws of the United States should be “the supreme law of the land,” anything in their own natural rights, or in the natural rights of the rest of mankind, to the contrary notwithstanding, would be to suppose that they intended, not only to authorize every injustice, and arouse universal violence, among themselves, but that they intended also to avow themselves the open enemies of the rights of all the rest of mankind. Certainly no such folly, madness, or criminality as this can be attributed to them by any rational man—always excepting the justices of the Supreme Court of the United States, the lawmakers, and the believers in the “Divine Right” of the cunning and the strong, to establish governments that shall deceive, plunder, enslave, and murder the ignorant and the weak.

Many men, still living, can well remember how, some fifty years ago, those famous champions of “sovereignty,” of arbitrary power, Webster and Calhoun, debated the question, whether, in this country, “sovereignty” resided in the general or State governments. But they never settled the question, for the very good reason that no such thing as “sovereignty” resided in either.

And the question was never settled, until it was settled at the cost of a million of lives, and some ten thousand millions of money. And then it was settled only as the same question had so often been settled before, to wit, that “the heaviest battalions” are “sovereign” over the lighter.

The only real “sovereignty,” or right of “sovereignty,” in this or any other country, is that right of sovereignty which each and every human being has over his or her own person and property, so long as he or she obeys the one law of justice towards the person and property of every other human being. This is the only natural right of sovereignty, that was ever known among men. All other so-called rights of sovereignty are simply the usurpations of impostors, conspirators, robbers, tyrants, and murderers.

It is not strange that we are in such high favor with the tyrants of Europe, when our Supreme Court tells them that our government, although a little different in form, stands on the same essential basis as theirs of a hundred years ago; that it is as absolute and irresponsible as theirs were then; that it will spend more money, and shed more blood, to maintain its power, than they have ever been able to do; that the people have no more rights here than there; and that the government is doing all it can to keep the producing classes as poor here as they are there.

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Section XXIV.

John Marshall has the reputation of having been the greatest jurist the country has ever had. And he unquestionably would have been a great jurist, if the two fundamental propositions, on which all his legal, political, and constitutional ideas were based, had been true.

These propositions were, first, that government has all power; and, secondly, that the people have no rights.

These two propositions were, with him, cardinal principles, from which, I think, he never departed.

For these reasons he was the oracle of all the rapacious classes, in whose interest the government was administered. And from them he got all his fame.

I think his record does not furnish a single instance, in which he ever vindicated men’s natural rights, in opposition to the arbitrary legislation of congress.

He was chief justice thirty-four years: from 1801 to 1835. In all that time, so far as I have known, he never declared a single act of congress unconstitutional; and probably never would have done so, if he had lived to this time.

And, so far as I know, he never declared a single State law unconstitutional, on account of its injustice, or its violation of men’s natural rights; but only on account of its conflict with the constitution, laws, or treaties of the United States.

He was considered very profound on questions of “sovereignty.” In fact, he never said much in regard to anything else. He held that, in this country, “sovereignty” was divided: that the national government was “sovereign” over certain things; and that the State governments were “sovereign” over all other things. He had apparently never heard of any natural, individual, human rights, that had never been delegated to either the general or State governments.

As a practical matter, he seemed to hold that the general government had “sovereignty” enough to destroy as many of the natural rights of the people as it should please to destroy; and that the State governments had “sovereignty” enough to destroy what should be left, if there should be any such. He evidently considered that, to the national government, had been delegated the part of the lion, with the right to devour as much of his prey as his appetite should crave; and that the State governments were jackals, with power to devour what the lion should leave.

In his efforts to establish the absolutism of our governments, he made himself an adept in the use of all those false definitions, and false assumptions, to which courts are driven, who hold that constitutions and statute books are supreme over all natural principles of justice, and over all the natural rights of mankind.

Here is his definition of law. He professes to have borrowed it from some one,—he does not say whom,—but he accepts it as his own.

Law has been defined by a writer, whose definitions especially have been the theme of almost universal panegyric, “To be a rule of civil conduct prescribed by the supreme power

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in a State.” In our system, the legislature of a State is the supreme power, in all cases where its action is not restrained by the constitution of the United States.—Ogden vs. Saunders, 12 Wheaton 347.

This definition is an utterly false one. It denies all the natural rights of the people; and is resorted to only by usurpers and tyrants, to justify their crimes.

The true definition of law is, that it is a fixed, immutable, natural principle; and not anything that man ever made, or can make, unmake, or alter. Thus we speak of the laws of matter, and the laws of mind; of the law of gravitation, the laws of light, heat, and electricity, the laws of chemistry, geology, botany; of physiological laws, of astronomical and atmospherical laws, etc., etc.

All these are natural laws, that man never made, nor can ever unmake, or alter.

The law of justice is just as supreme and universal in the moral world, as these others are in the mental or physical world; and is as unalterable as are these by any human power. And it is just as false and absurd to talk of anybody’s having the power to abolish the law of justice, and set up their own will in its stead, as it would be to talk of their having the power to abolish the law of gravitation, or any of the other natural laws of the universe, and set up their own will in the place of them.

Yet Marshall holds that this natural law of justice is no law at all, in comparison with some “rule of civil conduct prescribed by [what he calls] the supreme power in a State.”

And he gives this miserable definition, which he picked up somewhere—out of the legal filth in which he wallowed—as his sufficient authority for striking down all the natural obligation of men’s contracts, and all men’s natural rights to make their own contracts; and for upholding the State governments in prohibiting all such contracts as they, in their avarice and tyranny, may choose to prohibit. He does it too, directly in the face of that very constitution, which he professes to uphold, and which declares that “No State shall pass any law impairing the [natural] obligation of contracts.”

By the same rule, or on the same definition of law, he would strike down any and all the other natural rights of mankind.

That such a definition of law should suit the purposes of men like Marshall, who believe that governments should have all power, and men no rights, accounts for the fact that, in this country, men have had no “rights”—but only such permits as lawmakers have seen fit to allow them—since the State and United States governments were established,—or at least for the last eighty years.

Marshall also said:

The right [of government] to regulate contracts, to prescribe the rules by which they may be evidenced, to prohibit such as may be deemed mischievous, is unquestionable, and has been universally exercised.—Ogden vs. Saunders, 12 Wheaton 347.

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He here asserts that “the supreme power in a State”—that is, the legislature of a State—has “the right” to “deem it mischievous” to allow men to exercise their natural right to make their own contracts! Contracts that have a natural obligation! And that, if a State legislature thinks it “mischievous” to allow men to make contracts that are naturally obligatory, “its right to prohibit them is unquestionable.”

Is not this equivalent to saying that governments have all power, and the people no rights?

On the same principle, and under the same definition of law, the lawmakers of a State may, of course, hold it “mischievous” to allow men to exercise any of their other natural rights, as well as their right to make their own contracts; and may therefore prohibit the exercise of any, or all, of them.

And this is equivalent to saying that governments have all power, and the people no rights.

If a government can forbid the free exercise of a single one of man’s natural rights, it may, for the same reason, forbid the exercise of any and all of them; and thus establish, practically and absolutely, Marshall’s principle, that the government has all power, and the people no rights.

In the same case, of Ogden vs. Saunders, Marshall’s principle was agreed to by all the other justices, and all the lawyers!

Thus Thompson, one of the justices, said:

Would it not be within the legitimate powers of a State legislature to declare prospectively that no one should be made responsible, upon contracts entered into before arriving at the age of twenty-five years? This, I presume, cannot be doubted.—p. 300.

On the same principle, he might say that a State legislature may declare that no person, under fifty, or seventy, or a hundred, years of age, shall exercise his natural right of making any contract that is naturally obligatory.

In the same case, Trimble, another of the justices, said:

If the positive law [that is, the statute law] of the State declares the contract shall have no obligation, it can have no obligation, whatever may be the principles of natural law in regard to such a contract. This doctrine has been held and maintained by all States and nations. The power of controlling, modifying, and even taking away, all obligation from such contracts as, independently of positive enactions to the contrary, would have been obligatory, has been exercised by all independent sovereigns.—p. 320.

Yes; and why has this power been exercised by “all States and nations,” and “all independent sovereigns”? Solely because these governments have all—or at least so many of them as Trimble had in his mind—been despotic and tyrannical; and have claimed for themselves all power, and denied to the people all rights.

Thus it seems that Trimble, like all the rest of them, got his constitutional law, not from any natural principles of justice, not from men’s natural rights, not from the constitution of the United States, nor even from any constitution affirming [90] men’s natural rights, but from “the doctrine [that] has been held and maintained by all [those] States and nations,” and “all [those] independent sovereigns,” who have usurped all power, and denied all the natural rights of mankind.

Marshall gives another of his false definitions, when, speaking for the whole court, in regard to the power of congress “to regulate commerce with foreign nations, and among the several States,” he asserts the right of congress to an arbitrary, absolute dominion over all men’s natural rights to carry on such commerce. Thus he says:

What is this power? It is the power to regulate: that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed by the constitution. These are expressed in plain terms, and do not affect the questions which arise in this case, or which have been discussed at the bar. If, as has always been understood, the sovereignty of congress, though limited to specific objects, is plenary as to those objects, the power over commerce with foreign nations, and among the several States, is vested in congress as absolutely as it would be in a single government, having in its constitution the same restrictions on the exercise of the power as are found in the constitution of the United States. The wisdom and the discretion of congress, their identity with the people, and the influence which their constituents possess at elections, are, in this, as in many other instances, as that, for example, of declaring war, the sole restraints on which they [the people] have relied, to secure them from its abuse. They are the restraints on which the people must often rely solely, in all representative governments.—Gibbons vs. Ogden, 9 Wheaton 196.

This is a general declaration of absolutism over all “commerce with foreign nations and among the several States,” with certain exceptions mentioned in the constitution; such as that “all duties, imposts, and excises shall be uniform throughout the United States,” and “no tax or duty shall be laid on articles exported from any State,” and “no preference shall be given, by any regulation of commerce or revenue, to the ports of one State over those of another; nor shall vessels bound to, or from, one State, be obliged to enter, clear, or pay duties in another.”

According to this opinion of the court, congress has—subject to the exceptions referred to—absolute, irresponsible dominion over “all commerce with foreign nations, and among the several States”; and all men’s natural rights to trade with each other, among the several States, and all over the world, are prostrate under the feet of a contemptible, detestable, and irresponsible cabal of lawmakers; and the people have no protection or redress for any tyranny or robbery that may be practised upon them, except “the wisdom and the discretion of congress, their identity with the people, and the influence which their constituents possess at elections”!

It will be noticed that the court say that “all the other powers, vested in congress, are complete in themselves, and may be exercised to their utmost extent, and acknowledge no limitations, other than those prescribed by the constitution.”

They say that among “all the other [practically unlimited] powers, vested in [91] congress,” is the power “of declaring war”; and, of course, of carrying on war; that congress has power to carry on war, for any reason, to any extent, and against any people, it pleases.

Thus they say, virtually, that the natural rights of mankind impose no constitutional restraints whatever upon congress, in the exercise of their lawmaking powers.

Is not this asserting that governments have all power, and the people no rights?

But what is to be particularly noticed, is the fact that Marshall gives to congress all this practically unlimited power over all “commerce with foreign nations, and among the several States,” solely on the strength of a false definition of the verb “to regulate.” He says that “the power to regulate commerce” is the power “to prescribe the rule by which commerce is to be governed.”

This definition is an utterly false, absurd, and atrocious one. It would give congress power arbitrarily to control, obstruct, impede, derange, prohibit, and destroy commerce.

The verb “to regulate” does not, as Marshall asserts, imply the exercise of any arbitrary control whatever over the thing regulated; nor any power “to prescribe [arbitrarily] the rule, by which” the thing regulated “is to be governed.” On the contrary, it comes from the Latin word, regula, a rule; and implies the pre-existence of a rule, to which the thing regulated is made to conform.

To regulate one’s diet, for example, is not, on the one hand, to starve one’s self to emaciation, nor, on the other, to gorge one’s self with all sorts of indigestible and hurtful substances, in disregard of the natural laws of health. But it supposes the pre-existence of the natural laws of health, to which the diet is made to conform.

A clock is not “regulated,” when it is made to go, to stop, to go forwards, to go backwards, to go fast, to go slow, at the mere will or caprice of the person who may have it in hand. It is “regulated” only when it is made to conform to, to mark truly, the diurnal revolutions of the earth. These revolutions of the earth constitute the pre-existing rule, by which alone a clock can be regulated.

A mariner’s compass is not “regulated,” when the needle is made to move this way and that, at the will of an operator, without reference to the north pole. But it is regulated when it is freed from all disturbing influences, and suffered to point constantly to the north, as it is its nature to do.

A locomotive is not “regulated,” when it is made to go, to stop, to go forwards, to go backwards, to go fast, to go slow, at the mere will and caprice of the engineer, and without regard to economy, utility, or safety. But it is regulated, when its motions are made to conform to a pre-existing rule, that is made up of economy, utility, and safety combined. What this rule is, in the case of a locomotive, may not be known with such scientific precision, as is the rule in the case of a clock, or a mariner’s compass; but it may be approximated with sufficient accuracy for practical purposes.

The pre-existing rule, by which alone commerce can be “regulated,” is a matter of science; and is already known, so far as the natural principle of justice, in relation to contracts, is known. The natural right of all men to make all contracts whatsoever, that are naturally and intrinsically just and lawful, furnishes the pre-existing rule, by which alone commerce can be regulated. And it is the only rule, to which congress have any constitutional power to make commerce conform.

When all commerce, that is intrinsically just and lawful, is secured and protected, and all [92] commerce that is intrinsically unjust and unlawful, is prohibited, then commerce is regulated, and not before.*

This false definition of the verb “to regulate” has been used, time out of mind, by knavish lawmakers and their courts, to hide their violations of men’s natural right to do their own businesses in all such ways—that are naturally and intrinsically just and lawful—as they may choose to do them in. These lawmakers and courts dare not always deny, utterly and plainly, men’s right to do their own businesses in their own ways; but they will assume “to regulate” them; and in pretending simply “to regulate” them, they contrive “to regulate” men out of all their natural rights to do their own businesses in their own ways.

How much have we all heard (we who are old enough), within the last fifty years, of the power of congress, or of the States, “to regulate the currency.” And “to regulate the currency” has always meant to fix the kind, and limit the amount, of currency, that men may be permitted to buy and sell, lend and borrow, give and receive, in their dealings with each other. It has also meant to say who shall have the control of the licensed money; instead of making it mean the suppression only of false and dishonest money, and then leaving all men free to exercise their natural right of buying and selling, borrowing and lending, giving and receiving, all such, and so much, honest and true money, or currency, as the parties to any or all contracts may mutually agree upon.

Marshall’s false assumptions are numerous and tyrannical. They all have the same end in view as his false definitions; that is, to establish the principle that governments have all power, and the people no rights. They are so numerous that it would be tedious, if not impossible, to describe them all separately. Many, or most, of them are embraced in the following, viz.:

1. The assumption that, by a certain paper, called the constitution of the United States—a paper (I repeat and reiterate) which nobody ever signed, which but few persons ever read, and which the great body of the people never saw—and also by some forty subsidiary papers, called State constitutions, which also nobody ever signed, which but few persons ever read, and which the great body of the people never saw—all making a perfect system of the merest nothingness—the assumption, I say, that, by these papers, the people have all consented to the abolition of justice itself, the highest moral law of the Universe; and that all their own natural, inherent, inalienable rights to the benefits of that law, shall be annulled; and that they themselves, and everything that is theirs, shall be given over into the irresponsible custody of some forty little cabals of blockheads and villains called lawmakers—blockheads, who imagine themselves wiser than justice itself, and villains, who care nothing for either wisdom or justice, but only for the [93] gratification of their own avarice and ambitions; and that these cabals shall be invested with the right to dispose of the property, liberty, and lives of all the rest of the people, at their pleasure or discretion; or, as Marshall says, “their wisdom and discretion!”

If such an assumption as that does not embrace nearly, or quite, all the other false assumptions that usurpers and tyrants can ever need, to justify themselves in robbing, enslaving, and murdering all the rest of mankind, it is less comprehensive than it appears to me to be.

2. In the following paragraph may be found another batch of Marshall’s false assumptions.

The right to contract is the attribute of a free agent, and he may rightfully coerce performance from another free agent, who violates his faith. Contracts have consequently an intrinsic obligation. [But] When men come into society, they can no longer exercise this original natural right of coercion. It would be incompatible with general peace, and is therefore surrendered. Society prohibits the use of private individual coercion, and gives in its place a more safe and more certain remedy. But the right to contract is not surrendered with the right to coerce performance.—Ogden vs. Saunders, 12 Wheaton 350.

In this extract, taken in connection with the rest of his opinion in the same case, Marshall convicts himself of the grossest falsehood. He acknowledges that men have a natural right to make their own contracts; that their contracts have an “intrinsic obligation”; and that they have an “original and natural right” to coerce performance of them. And yet he assumes, and virtually asserts, that men voluntarily “come into society,” and “surrender” to “society” their natural right to coerce the fulfilment of their contracts. He assumes, and virtually asserts, that they do this, upon the ground, and for the reason, that “society gives in its place a more safe and more certain remedy”; that is, “a more safe and more certain” enforcement of all men’s contracts that have “an intrinsic obligation.”

In thus saying that “men come into society,” and “surrender” to society, their “original and natural right” of coercing the fulfilment of contracts, and that “society gives in its place a more safe and certain remedy,” he virtually says, and means to say, that, in consideration of such “surrender” of their “original and natural right of coercion,” “society” pledges itself to them that it will give them this “more safe and more certain remedy”; that is, that it will more safely and more certainly enforce their contracts than they can do it themselves.

And yet, in the same opinion—only two and three pages preceding this extract—he declares emphatically that “the right” of government—or of what he calls “society”—“to prohibit such contracts as may be deemed mischievous, is unquestionable.”—p. 347.

And as an illustration of the exercise of this right of “society” to prohibit such contracts “as may be deemed mischievous,” he cites the usury laws, thus:

The acts against usury declare the contract to be void in the beginning. They deny that [94] the instrument ever became a contract. They deny it all original obligation; and cannot impair that which never came into existence.—p. 348.

All this is as much as to say that, when a man has voluntarily “come into society,” and has “surrendered” to society “his original and natural right of coercing” the fulfilment of his contracts, and when he has done this in the confidence that society will fulfil its pledge to “give him a more safe and more certain coercion” than he was capable of himself, “society” may then turn around to him, and say:

We acknowledge that you have a natural right to make your own contracts. We acknowledge that your contracts have “an intrinsic obligation.” We acknowledge that you had “an original and natural right” to coerce the fulfilment of them. We acknowledge that it was solely in consideration of our pledge to you, that we would give you a more safe and more certain coercion than you were capable of yourself, that you “surrendered” to us your right to coerce a fulfilment of them. And we acknowledge that, according to our pledge, you have now a right to require of us that we coerce a fulfilment of them. But after you had “surrendered” to us your own right of coercion, we took a different view of the pledge we had given you; and concluded that it would be “mischievous” to allow you to make such contracts. We therefore “prohibited” your making them. And having prohibited the making of them, we cannot now admit that they have any “obligation.” We must therefore decline to enforce the fulfilment of them. And we warn you that, if you attempt to enforce them, by virtue of your own “original and natural right of coercion,” we shall be obliged to consider your act a breach of “the general peace,” and punish you accordingly. We are sorry that you have lost your property, but “society” must judge as to what contracts are, and what are not, “mischievous.” We can therefore give you no redress. Nor can we suffer you to enforce your own rights, or redress your own wrongs.

Such is Marshall’s theory of the way in which “society” got possession of all men’s “original and natural right” to make their own contracts, and enforce the fulfilment of them; and of the way in which “society” now justifies itself in prohibiting all contracts, though “intrinsically obligatory,” which it may choose to consider “mischievous.” And he asserts that, in this way, “society” has acquired “an unquestionable right” to cheat men out of all their “original and natural right” to make their own contracts, and enforce the fulfilment of them.

A man’s “original and natural right” to make all contracts that are “intrinsically obligatory,” and to coerce the fulfilment of them, is one of the most valuable and indispensable of all human possessions. But Marshall assumes that a man may “surrender” this right to “society,” under a pledge from “society,” that it will secure to him “a more safe and certain” fulfilment of his contracts, than he is capable of himself; and that “society,” having thus obtained from him this “surrender,” may then turn around to him, and not only refuse to fulfil its pledge to him, but may also prohibit his own exercise of his own “original and natural right,” which he has “surrendered” to “society!”

This is as much as to say that, if A can but induce B to intrust his (B’s) property [95] with him (A), for safekeeping, under a pledge that he (A) will keep it more safely and certainly than B can do it himself, A thereby acquires an “unquestionable right” to keep the property forever, and let B whistle for it!

This is the kind of assumption on which Marshall based all his ideas of the constitutional law of this country; that constitutional law, which he was so famous for expounding. It is the kind of assumption, by which he expounded the people out of all their “original and natural rights.”

He had just as much right to assume, and practically did assume, that the people had voluntarily “come into society,” and had voluntarily “surrendered” to their governments all their other natural rights, as well as their “original and natural right” to make and enforce their own contracts.

He virtually said to all the people of this country:

You have voluntarily “come into society,” and have voluntarily “surrendered” to your governments all your natural rights, of every name and nature whatsoever, for safe keeping; and now that these governments have, by your own consent, got possession of all your natural rights, they have an “unquestionable right” to withhold them from you forever.

If it were not melancholy to see mankind thus cheated, robbed, enslaved, and murdered, on the authority of such naked impostures as these, it would be, to the last degree, ludicrous, to see a man like Marshall—reputed to be one of the first intellects the country has ever had—solemnly expounding the “constitutional powers,” as he called them, by which the general and State governments were authorized to rob the people of all their natural rights as human beings.

And yet this same Marshall has done more than any other one man—certainly more than any other man within the last eighty-five years—to make our governments, State and national, what they are. He has, for more than sixty years, been esteemed an oracle, not only by his associates and successors on the bench of the Supreme Court of the United States, but by all the other judges, State and national, by all the ignorant, as well as knavish, lawmakers in the country, and by all the sixty to a hundred thousand lawyers, upon whom the people have been, and are, obliged to depend for the security of their rights.

This system of false definitions, false assumptions, and fraud and usurpation generally, runs through all the operations of our governments, State and national. There is nothing genuine, nothing real, nothing true, nothing honest, to be found in any of them. They all proceed upon the principle, that governments have all power, and the people no rights.

Section XXV.

But perhaps the most absolute proof that our national lawmakers and judges are as regardless of all constitutional, as they are of all natural, law, and that their [96] statutes and decisions are as destitute of all constitutional, as they are of all natural, authority, is to be found in the fact that these lawmakers and judges have trampled upon, and utterly ignored, certain amendments to the constitution, which had been adopted, and (constitutionally speaking) become authoritative, as early as 1791; only two years after the government went into operation.

If these amendments had been obeyed, they would have compelled all congresses and courts to understand that, if the government had any constitutional powers at all, they were simply powers to protect men’s natural rights, and not to destroy any of them.

These amendments have actually forbidden any lawmaking whatever in violation of men’s natural rights. And this is equivalent to a prohibition of any lawmaking at all. And if lawmakers and courts had been as desirous of preserving men’s natural rights, as they have been of violating them, they would long ago have found out that, since these amendments, the constitution authorized no lawmaking at all.

These amendments were ten in number. They were recommended by the first congress, at its first session, in 1789; two-thirds of both houses concurring. And in 1791, they had been ratified by all the States: and from that time they imposed the restrictions mentioned upon all the powers of congress.

These amendments were proposed, by the first congress, for the reason that, although the constitution, as originally framed, had been adopted, its adoption had been procured only with great difficulty, and in spite of great objections. These objections were that, as originally framed and adopted, the constitution contained no adequate security for the private rights of the people.

These objections were admitted, by very many, if not all, the friends of the constitution themselves, to be very weighty; and such as ought to be immediately removed by amendments. And it was only because these friends of the constitution pledged themselves to use their influence to secure these amendments, that the adoption of the constitution itself was secured. And it was in fulfilment of these pledges, and to remove these objections, that the amendments were proposed and adopted.

The first eight amendments specified particularly various prohibitions upon the power of congress; such, for example, as those securing to the people the free exercise of religion, the freedom of speech and the press, the right to keep and bear arms, etc., etc. Then followed the ninth amendment, in these words:

The enumeration in the constitution, of certain rights, [retained by the people] shall not be construed to deny or disparage others retained by the people.

Here is an authoritative declaration, that “the people” have “other rights” than those specially “enumerated in the constitution”; and that these “other rights” were “retained by the people”; that is, that congress should have no power to infringe them.

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What, then, were these “other rights,” that had not been “enumerated”; but which were nevertheless “retained by the people”?

Plainly they were men’s natural “rights”; for these are the only “rights” that “the people” ever had, or, consequently, that they could “retain.”

And as no attempt is made to enumerate all these “other rights,” or any considerable number of them, and as it would be obviously impossible to enumerate all, or any considerable number, of them; and as no exceptions are made of any of them, the necessary, the legal, the inevitable inference is, that they were all “retained”; and that congress should have no power to violate any of them.

Now, if congress and the courts had attempted to obey this amendment, as they were constitutionally bound to do, they would soon have found that they had really no lawmaking power whatever left to them; because they would have found that they could make no law at all, of their own invention, that would not violate men’s natural rights.

All men’s natural rights are co-extensive with natural law, the law of justice; or justice as a science. This law is the exact measure, and the only measure, of any and every man’s natural rights. No one of these natural rights can be taken from any man, without doing him an injustice; and no more than these rights can be given to any one, unless by taking from the natural rights of one or more others.

In short, every man’s natural rights are, first, the right to do, with himself and his property, everything that he pleases to do, and that justice towards others does not forbid him to do; and, secondly, to be free from all compulsion, by others, to do anything whatever, except what justice to others requires him to do.

Such, then, has been the constitutional law of this country since 1791; admitting, for the sake of the argument—what I do not really admit to be a fact—that the constitution, so called, has ever been a law at all.

This amendment, from the remarkable circumstances under which it was proposed and adopted, must have made an impression upon the minds of all the public men of the time; although they may not have fully comprehended, and doubtless did not fully comprehend, its sweeping effects upon all the supposed powers of the government.

But whatever impression it may have made upon the public men of that time, its authority and power were wholly lost upon their successors; and probably, for at least eighty years, it has never been heard of, either in congress or the courts.

John Marshall was perfectly familiar with all the circumstances, under which this, and the other nine amendments, were proposed and adopted. He was thirty-two years old (lacking seven days) when the constitution, as originally framed, was published (September 17, 1787); and he was a member of the Virginia convention that ratified it. He knew perfectly the objections that were raised to it, in that convention, on the ground of its inadequate guaranty of men’s natural rights. He knew with what force these objections were urged by some of the ablest members [98] of the convention. And he knew that, to obviate these objections, the convention, as a body, without a dissenting voice, so far as appears, recommended that very stringent amendments, for securing men’s natural rights, be made to the constitution. And he knew further, that, but for these amendments being recommended, the constitution would not have been adopted by the convention.*

The amendments proposed were too numerous to be repeated here, although they would be very instructive, as showing how jealous the people were, lest their natural rights should be invaded by laws made by congress. And that the convention might do everything in its power to secure the adoption of these amendments, it resolved as follows:

And the convention do, in the name and behalf of the people of this commonwealth, enjoin it upon their representatives in congress to exert all their influence, and use all reasonable and legal methods, to obtain a ratification of the foregoing alterations and provisions, in the manner provided by the 5th article of the said Constitution; and, in all congressional laws to be passed in the meantime, to conform to the spirit of these amendments, as far as the said Constitution will admit.—Elliot’s Debates, Vol. 3, p. 661.

In seven other State conventions, to wit, in those of Massachusetts, New Hampshire, Rhode Island, New York, Maryland, North Carolina, and South Carolina, the inadequate security for men’s natural rights, and the necessity for amendments, were admitted, and insisted upon, in very similar terms to those in Virginia.

In Massachusetts, the convention proposed nine amendments to the constitution; and resolved as follows:

And the convention do, in the name and in the behalf of the people of this commonwealth, enjoin it upon their representatives in Congress, at all times, until the alterations and provisions aforesaid have been considered, agreeably to the 5th article of the said Constitution, to exert all their influence, and use all reasonable and legal methods, to obtain a ratification of the said alterations and provisions, in such manner as is provided in the said article.—Elliot’s Debates, Vol. 2, p. 178.

The New Hampshire convention, that ratified the constitution, proposed twelve amendments, and added:

And the Convention do, in the name and behalf of the people of this State, enjoin it upon their representatives in congress, at all times, until the alterations and provisions aforesaid have been considered agreeably to the fifth article of the said Constitution, to exert all their influence, and use all reasonable and legal methods, to obtain a ratification of the said alterations and provisions, in such manner as is provided in the article.—Elliot’s Debates, Vol. 1, p. 326.

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The Rhode Island convention, in ratifying the constitution, put forth a declaration of rights, in eighteen articles, and also proposed twenty-one amendments to the constitution; and prescribed as follows:

And the Convention do, in the name and behalf of the people of the State of Rhode Island and Providence Plantations, enjoin it upon their senators and representative or representatives, which may be elected to represent this State in congress, to exert all their influence, and use all reasonable means, to obtain a ratification of the following amendments to the said Constitution, in the manner prescribed therein; and in all laws to be passed by the congress in the mean time, to conform to the spirit of the said amendments, as far as the Constitution will admit.—Elliot’s Debates, Vol. 1, p. 335.

The New York convention, that ratified the constitution, proposed a great many amendments, and added:

And the Convention do, in the name and behalf of the people of the State of New York, enjoin it upon their representatives in congress, to exert all their influence, and use all reasonable means, to obtain a ratification of the following amendments to the said Constitution, in the manner prescribed therein; and in all laws to be passed by the congress, in the mean time, to conform to the spirit of the said amendments as far as the Constitution will admit.—Elliot’s Debates, Vol. 1, p. 329.

The New York convention also addressed a “Circular Letter” to the governors of all the other States, the first two paragraphs of which are as follows:

Lysander Spooner

Spooner, Lysander

July 28, 1788

Poughkeepsie,

The Circular Letter, From the Convention of the State of New York to the Governors of the several States in the Union.

Poughkeepsie,

July 28, 1788

.

Sir,

We, the members of the Convention of this State, have deliberately and maturely considered the Constitution proposed for the United States. Several articles in it appear so exceptionable to a majority of us, that nothing but the fullest confidence of obtaining a revision of them by a general convention, and an invincible reluctance to separating from our sister States, could have prevailed upon a sufficient number to ratify it, without stipulating for previous amendments. We all unite in opinion, that such a revision will be necessary to recommend it to the approbation and support of a numerous body of our constituents.

We observe that amendments have been proposed, and are anxiously desired, by several of the States, as well as by this; and we think it of great importance that effectual measures be immediately taken for calling a convention, to meet at a period not far remote; for we are convinced that the apprehensions and discontents, which those articles occasion, cannot be removed or allayed, unless an act to provide for it be among the first that shall be passed by the new congress.—Elliot’s Debates, Vol. 2, p. 413.

In the Maryland convention, numerous amendments were proposed, and thirteen were agreed to; “most of them by a unanimous vote, and all by a great majority.” Fifteen others were proposed, but there was so much disagreement in regard to them, that none at all were formally recommended to congress. But, says Elliot:

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All the members, who voted for the ratification [of the constitution], declared that they would engage themselves, under every tie of honor, to support the amendments they had agreed to, both in their public and private characters, until they should become a part of the general government.—Elliot’s Debates, Vol. 2, pp. 550, 552-3.

The first North Carolina convention refused to ratify the constitution, and

Resolved, That a declaration of rights, asserting and securing from encroachments the great principles of civil and religious liberty, and the inalienable rights of the people, together with amendments to the most ambiguous and exceptionable parts of the said constitution of government, ought to be laid before congress, and the convention of States that shall or may be called for the purpose of amending the said Constitution, for their consideration, previous to the ratification of the Constitution aforesaid, on the part of the State of North Carolina.—Elliot’s Debates, Vol. 1, p. 332.

The South Carolina convention, that ratified the constitution, proposed certain amendments, and

Resolved, That it be a standing instruction to all such delegates as may hereafter be elected to represent this State in the General Government, to exert their utmost abilities and influence to effect an alteration of the Constitution, conformably to the foregoing resolutions.—Elliot’s Debates, Vol. 1. p. 325.

In the Pennsylvania convention, numerous objections were made to the constitution, but it does not appear that the convention, as a convention, recommended any specific amendments. But a strong movement, outside of the convention, was afterwards made in favor of such amendments. (“Elliot’s Debates,” Vol. 2, p. 542.)

Of the debates in the Connecticut convention, Elliot gives only what he calls “A Fragment.”

Of the debates in the conventions of New Jersey, Delaware, and Georgia, Elliot gives no accounts at all.

I therefore cannot state the grounds, on which the adoption of the constitution was opposed. They were doubtless very similar to those in the other States. This is rendered morally certain by the fact, that the amendments, soon afterwards proposed by congress, were immediately ratified by all the States. Also by the further fact, that these States, by reason of the smallness of their representation in the popular branch of congress, would naturally be even more jealous of their rights, than the people of the larger States.

It is especially worthy of notice that, in some, if not in all, the conventions that ratified the constitution, although the ratification was accompanied by such urgent recommendations of amendments, and by an almost absolute assurance that they would be made, it was nevertheless secured only by very small majorities.

Thus in Virginia, the vote was only 89 ayes to 79 nays. (Elliot, Vol. 3, p. 654.)

In Massachusetts, the ratification was secured only by a vote of 187 yeas to 168 nays. (Elliot, Vol. 2, p. 181.)

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In New York, the vote was only 30 yeas to 27 nays. (Elliot, Vol. 2, p. 413.)

In New Hampshire and Rhode Island, neither the yeas nor nays are given. (Elliot, Vol. 1, pp. 327-335.)

In Connecticut, the yeas were 128; nays not given. (Elliot, Vol. 1, p. 321-2.)

In New Jersey, the yeas were 38; nays not given. (Elliot, Vol. 1, p. 321.)

In Pennsylvania, the yeas were 46; the nays not given. (Elliot, Vol. 1, p. 320.)

In Delaware, the yeas were 30; nays not given. (Elliot, Vol. 1, p. 319.)

In Maryland, the vote was 57 yeas; nays not given. (Elliot, Vol. 1, p. 325.)

In North Carolina, neither the yeas nor nays are given. (Elliot, Vol. 1, p. 333.)

In South Carolina, neither the yeas nor nays are given. (Elliot, Vol. 1, p. 325.)

In Georgia, the yeas were 26; nays not given. (Elliot, Vol. 1, p. 324.)

We can thus see by what meagre votes the constitution was adopted. We can also see that, but for the prospect that important amendments would be made, specially for securing the natural rights of the people, the constitution would have been spurned with contempt, as it deserved to be.

And yet now, owing to the usurpations of lawmakers and courts, the original constitution—with the worst possible construction put upon it—has been carried into effect; and the amendments have been simply cast into the waste baskets.

Marshall was thirty-six years old, when these amendments became a part of the constitution in 1791. Ten years after, in 1801, he became Chief Justice. It then became his sworn constitutional duty to scrutinize severely every act of congress, and to condemn, as unconstitutional, all that should violate any of these natural rights. Yet he appears never to have thought of the matter afterwards. Or, rather, this ninth amendment, the most important of all, seems to have been so utterly antagonistic to all his ideas of government, that he chose to ignore it altogether, and, as far as he could, to bury it out of sight.

Instead of recognizing it as an absolute guaranty of all the natural rights of the people, he chose to assume—for it was all a mere assumption, a mere making a constitution out of his own head, to suit himself—that the people had all voluntarily “come into society,” and had voluntarily “surrendered” to “society” all their natural rights, of every name and nature—trusting that they would be secured; and that now, “society,” having thus got possession of all these natural rights of the people, had the “unquestionable right” to dispose of them, at the pleasure—or, as he would say, according to the “wisdom and discretion”—of a few contemptible, detestable, and irresponsible lawmakers, whom the constitution (thus amended) had forbidden to dispose of any one of them.

If, now, Marshall did not see, in this amendment, any legal force or authority, what becomes of his reputation as a constitutional lawyer? If he did see this force and authority, but chose to trample them under his feet, he was a perjured tyrant and traitor.

What, also, are we to think of all the judges,—forty in all,—his associates and [102] successors, who, for eighty years, have been telling the people that the government has all power, and the people no rights? Have they all been mere blockheads, who never read this amendment, or knew nothing of its meaning? Or have they, too, been perjured tyrants and traitors?

What, too, becomes of those great constitutional lawyers, as we have called them, who have been supposed to have won such immortal honors, as “expounders of the constitution,” but who seem never to have discovered in it any security for men’s natural rights? Is their apparent ignorance, on this point, to be accounted for by the fact, that that portion of the people, who, by authority of the government, are systematically robbed of all their earnings, beyond a bare subsistence, are not able to pay such fees as are the robbers who are authorized to plunder them?

If any one will now look back to the records of congress and the courts, for the last eighty years, I do not think he will find a single mention of this amendment. And why has this been so? Solely because the amendment—if its authority had been recognized—would have stood as an insuperable barrier against all the ambition and rapacity—all the arbitrary power, all the plunder, and all the tyranny—which the ambitious and rapacious classes have determined to accomplish through the agency of the government.

The fact that these classes have been so successful in perverting the constitution (thus amended) from an instrument avowedly securing all men’s natural rights, into an authority for utterly destroying them, is a sufficient proof that no lawmaking power can be safely intrusted to any body, for any purpose whatever.

And that this perversion of the constitution should have been sanctioned by all the judicial tribunals of the country, is also a proof, not only of the servility, audacity, and villainy of the judges, but also of the utter rottenness of our judicial system. It is a sufficient proof that judges, who are dependent upon lawmakers for their offices and salaries, and are responsible to them by impeachment, cannot be relied on to put the least restraint upon the acts of their masters, the lawmakers.

Such, then, would have been the effect of the ninth amendment, if it had been permitted to have its legitimate authority.

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.”

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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, [104] 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 [105] 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 [106] 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.

Section XXVII.

Of course we can have no courts of justice, under such systems of lawmaking, and supreme court decisions, as now prevail.

We have a population of fifty to sixty millions; and not a single court of justice, State or national!

But we have everywhere courts of injustice—open and avowed injustice—claiming sole jurisdiction of all cases affecting men’s rights of both person and property; and having at their beck brute force enough to compel absolute submission to their decrees, whether just or unjust.

Can a more decisive or infallible condemnation of our governments be conceived of, than the absence of all courts of justice, and the absolute power of their courts of injustice?

Yes, they lie under still another condemnation, to wit, that their courts are not only courts of injustice, but they are also secret tribunals; adjudicating all causes according to the secret instructions of their masters, the lawmakers, and their authorized interpreters, their supreme courts.

I say secret tribunals, and secret instructions, because, to the great body of the people, whose rights are at stake, they are secret to all practical intents and purposes. They are secret, because their reasons for their decrees are to be found only in great volumes of statutes and supreme court reports, which the mass of the people have neither money to buy, nor time to read; and would not understand, if they were to read them.

These statutes and reports are so far out of reach of the people at large, that the only knowledge a man can ordinarily get of them, when he is summoned before [107] one of the tribunals appointed to execute them, is to be obtained by employing an expert—or so-called lawyer—to enlighten him.

This expert in injustice is one who buys these great volumes of statutes and reports, and spends his life in studying them, and trying to keep himself informed of their contents. But even he can give a client very little information in regard to them; for the statutes and decisions are so voluminous, and are so constantly being made and unmade, and are so destitute of all conformity to those natural principles of justice which men readily and intuitively comprehend; and are moreover capable of so many different interpretations, that he is usually in as great doubt—perhaps in even greater doubt—than his client, as to what will be the result of a suit.

The most he can usually say to his client, is this:

Every civil suit must finally be given to one of two persons, the plaintiff or defendant. Whether, therefore, your cause is a just, or an unjust, one, you have at least one chance in two, of gaining it. But no matter how just your cause may be, you need have no hope that the tribunal that tries it, will be governed by any such consideration, if the statute book, or the past decisions of the supreme court, are against you. So, also, no matter how unjust your cause may be, you may nevertheless expect to gain it, if the statutes and past decisions are in your favor. If, therefore, you have money to spend in such a lottery as this, I will do my best to gain your cause for you, whether it be a just, or an unjust, one.

If the charge is a criminal one, this expert says to his client:

You must either be found guilty, or acquitted. Whether, therefore, you are really innocent or guilty, you have at least one chance in two, of an acquittal. But no matter how innocent you may be of any real crime, you need have no hope of an acquittal, if the statute book, or the past decisions of the supreme court, are against you. If, on the other hand, you have committed a real wrong to another, there may be many laws on the statute book, many precedents, and technicalities, and whimsicalities, through which you may hope to escape. But your reputation, your liberty, or perhaps your life, is at stake. To save these you can afford to risk your money, even though the result is so uncertain. Therefore you had best give me your money, and I will do my best to save you, whether you are innocent or guilty.

But for the great body of the people,—those who have no money that they can afford to risk in a lawsuit,—no matter what may be their rights in either a civil or criminal suit,—their cases are hopeless. They may have been taxed, directly and indirectly, to their last dollars, for the support of the government; they may even have been compelled to risk their lives, and to lose their limbs, in its defence; yet when they want its protection,—that protection for which their taxes and military services were professedly extorted from them,—they are coolly told that the government offers no justice, nor even any chance or semblance of justice, except to those who have more money than they.

But the point now to be specially noticed is, that in the case of either the civil [108] or criminal suit, the client, whether rich or poor, is nearly or quite as much in the dark as to his fate, and as to the grounds on which his fate will be determined, as though he were to be tried by an English Star Chamber court, or one of the secret tribunals of Russia, or even the Spanish Inquisition.

Thus in the supreme exigencies of a man’s life, whether in civil or criminal cases, where his property, his reputation, his liberty, or his life is at stake, he is really to be tried by what is, to him, at least, a secret tribunal; a tribunal that is governed by what are, to him, the secret instructions of lawmakers, and supreme courts; neither of whom care anything for his rights of property in a civil suit, or for his guilt or innocence in a criminal one; but only for their own authority as lawmakers and judges.

The bystanders, at these trials, look on amazed, but powerless to defend the right, or prevent the wrong. Human nature has no rights, in the presence of these infernal tribunals.

Is it any wonder that all men live in constant terror of such a government as that? Is it any wonder that so many give up all attempts to preserve their natural rights of person and property, in opposition to tribunals, to whom justice and injustice are indifferent, and whose ways are, to common minds, hidden mysteries, and impenetrable secrets.

But even this is not all. The mode of trial, if not as infamous as the trial itself, is at least so utterly false and absurd, as to add a new element of uncertainty to the result of all judicial proceedings.

A trial in one of these courts of injustice is a trial by battle, almost, if not quite, as really as was a trial by battle, five hundred or a thousand years ago.

Now, as then, the adverse parties choose their champions, to fight their battles for them.

These champions, trained to such contests, and armed, not only with all the weapons their own skill, cunning, and power can supply, but also with all the iniquitous laws, precedents, and technicalities that lawmakers and supreme courts can give them, for defeating justice, and accomplishing injustice, can—if not always, yet none but themselves know how often—offer their clients such chances of victory—independently of the justice of their causes—as to induce the dishonest to go into court to evade justice, or accomplish injustice, not less often perhaps than the honest go there in the hope to get justice, or avoid injustice.

We have now, I think, some sixty thousand of these champions, who make it the business of their lives to equip themselves for these conflicts, and sell their services for a price.

Is there any one of these men, who studies justice as a science, and regards that alone in all his professional exertions? If there are any such, why do we so seldom, or never, hear of them? Why have they not told us, hundreds of years ago, what are men’s natural rights of person and property? And why have they not [109] told us how false, absurd, and tyrannical are all these lawmaking governments? Why have they not told us what impostors and tyrants all these so-called lawmakers, judges, etc., etc., are? Why are so many of them so ambitious to become lawmakers and judges themselves?

Is it too much to hope for mankind, that they may sometime have courts of justice, instead of such courts of injustice as these?

If we ever should have courts of justice, it is easy to see what will become of statute books, supreme courts, trial by battle, and all the other machinery of fraud and tyranny, by which the world is now ruled.

If the people of this country knew what crimes are constantly committed by these courts of injustice, they would squelch them, without mercy, as unceremoniously as they would squelch so many gangs of bandits or pirates. In fact, bandits and pirates are highly respectable and honorable villains, compared with the judges of these courts of injustice. Bandits and pirates do not—like these judges—attempt to cheat us out of our common sense, in order to cheat us out of our property, liberty, or life. They do not profess to be anything but such villains as they really are. They do not claim to have received any “Divine” authority for robbing, enslaving, or murdering us at their pleasure. They do not claim immunity for their crimes, upon the ground that they are duly authorized agents of any such invisible, intangible, irresponsible, unimaginable thing as “society,” or “the State.” They do not insult us by telling us that they are only exercising that authority to rob, enslave, and murder us, which we ourselves have delegated to them. They do not claim that they are robbing, enslaving, and murdering us, solely to secure our happiness and prosperity, and not from any selfish motives of their own. They do not claim a wisdom so superior to that of the producers of wealth, as to know, better than they, how their wealth should be disposed of. They do not tell us that we are the freest and happiest people on earth, inasmuch as each of our male adults is allowed one voice in ten millions in the choice of the men, who are to rob, enslave, and murder us. They do not tell us that all liberty and order would be destroyed, that society itself would go to pieces, and man go back to barbarism, if it were not for the care, and supervision, and protection, they lavish upon us. They do not tell us of the almshouses, hospitals, schools, churches, etc., which, out of the purest charity and benevolence, they maintain for our benefit, out of the money they take from us. They do not carry their heads high, above all other men, and demand our reverence and admiration, as statesmen, patriots, and benefactors. They do not claim that we have voluntarily “come into their society,” and “surrendered” to them all our natural rights of person and property; nor all our “original and natural right” of defending our own rights, and redressing our own wrongs. They do not tell us that they have established infallible supreme courts, to whom they refer all questions as to the legality of their acts, and that they do nothing that is not sanctioned by these courts. They do not attempt [110] to deceive us, or mislead us, or reconcile us to their doings, by any such pretences, impostures, or insults as these. There is not a single John Marshall among them. On the contrary, they acknowledge themselves robbers, murderers, and villains, pure and simple. When they have once taken our money, they have the decency to get out of our sight as soon as possible; they do not persist in following us, and robbing us, again and again, so long as we produce anything that they can take from us. In short, they acknowledge themselves hostes humani generis: enemies of the human race. They acknowledge it to be our unquestioned right and duty to kill them, if we can; that they expect nothing else, than that we will kill them, if we can; and that we are only fools and cowards, if we do not kill them, by any and every means in our power. They neither ask, nor expect, any mercy, if they should ever fall into the hands of honest men.

For all these reasons, they are not only modest and sensible, but really frank, honest, and honorable villains, contrasted with these courts of injustice, and the lawmakers by whom these courts are established.

Such, Mr. Cleveland, is the real character of the government, of which you are the nominal head. Such are, and have been, its lawmakers. Such are, and have been, its judges. Such have been its executives. Such is its present executive. Have you anything to say for any of them?

Yours frankly,

LYSANDER SPOONER.

Boston,

May 15, 1886

.

The End.

Endnotes

*

Under a somewhat different title, to wit, “A Letter to Grover Cleveland, on his False, Absurd, Self-contradictory, and Ridiculous Inaugural Address,” this letter was first published, in instalments, in “Liberty” (a paper published in Boston); the instalments commencing June 20, 1885, and continuing to May 22, 1886: notice being given, in each paper, of the reservation of copyright.

*

The irresponsibility of the senators and representatives is guaranteed to them in this wise:

For any speech or debate [or vote] in either house, they [the senators and representatives] shall not be questioned [held to any legal responsibility] in any other place.—Constitution, Art. 1, Sec. 6.

The judicial and executive officers are all equally guaranteed against all responsibility to the people. They are made responsible only to the senators and representatives, whose laws they are to administer and execute. So long as they sanction and execute all these laws, to the satisfaction of the lawmakers, they are safe against all responsibility. In no case can the people, whose rights they are continually denying and trampling upon, hold them to any accountability whatever.

Thus it will be seen that all departments of the government, legislative, judicial, and executive, are placed entirely beyond any responsibility to the people, whose agents they profess to be, and whose rights they assume to dispose of at pleasure.

Was a more absolute, irresponsible government than that ever invented?

*

In the Senate they stood thirty to thirty-six, in the house ninety to one hundred and forty-seven, in the two branches united one hundred and twenty to one hundred and eighty-three, relatively to the non-slaveholding members.

From the foundation of the government—without a single interval, I think—the lawmakers from the slaveholding States had been, relatively, as strong, or stronger, than in 1860.

*

It may have very weighty moral obligation; but it can have no legal obligation.

*

The above extracts are from a pamphlet published by me in 1864, entitled “Considerations for Bankers,” etc., pp. 55, 56, 57.

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For the amendments recommended by the Virginia convention, see “Elliot’s Debates,” Vol. 3, pp. 657 to 663. For the debates upon these amendments, see pages 444 to 452, and 460 to 462, and 466 to 471, and 579 to 652.

Table of Contents

T.7 Poverty: its Illegal Causes and Legal Cure. Part First. (1846). ↩

T.16 The Unconstitutionality of Slavery: Part Second 1860).↩

T.31 Universal Wealth shown to be Easily Attainable. Part First (1879).↩

T.31 Universal Wealth shown to be Easily Attainable. Part First (1879).↩

T.1 The Deist's Immortality, and an Essay on Man's Accountability for his Belief (1834).

T.2 "To the Members of the Legislature of Massachusetts" (August 26, 1835).

T.3 The Deist's Reply to the Alleged Supernatural Evidences of Christianity (1836).

T.4 Supreme Court of United States, January Term, 1839. Spooner vs. M'Connell, et al. 1839).

T.5 Constitutional Law, relative to Credit, Currency, and Banking ( 1843).

T.6 The Unconstitutionality of the Laws of Congress, Prohibiting Private Mails ( 1844).

T.8 Who caused the Reduction of Postage? Ought he to be Paid? (1850).

T.9 Illegality of the Trial of John W. Webster 1850).

T.10 A Defence for Fugitive Slaves, against the Acts of Congress (1850).

T.11 An Essay on the Trial by Jury (1852).

T.12 The Law of Intellectual Property; or An Essay on the Right of Authors and Inventors to

T.13 A Plan for the Abolition of Slavery, and To the Non-Slaveholders of the South (1858).

T.14 Address of the Free Constitutionalists to the People of the United States (1860).

T.15 The Unconstitutionality of Slavery (1860).

T.17 A New System of Paper Currency (1861).

T.18 Our Mechanical Industry, as Affected by our Present Currency System: An Argument for th

T.19 Articles of Association of the Spooner Copyright Company for Massachusetts (1863).

T.20 Considerations for Bankers, and Holders of United States Bonds (1864).

T.21 A Letter to Charles Sumner (1864).

T.22 No Treason, No. 1 (1867).

T.23 No Treason. No II.The Constitution (1867).

T.24 Senate-No. 824. Thomas Drew vs. John M. Clark (1869).

T.25 No Treason. No VI. The Constitution of No Authority (1870).

T.26 A New Banking System: The Needful Capital for Rebuilding the Burnt District (1873).

T.27 Vices are Not Crimes: A Vindication of Moral Liberty (1875).

T.28 Our Financiers: Their Ignorance, Usurpations, and Frauds (1877).

T.29 The Law of Prices: A Demonstration of the Necessity for an Indefinite Increase of Money (187

T.30 Gold and Silver as Standards of Value: The Flagrant Cheat in Regard to Them (1878).

T.32 No. 1. Revolution: The only Remedy for the Oppressed Classes of Ireland, England, and Other P

T.33 Natural Law; or the Science of Justice (1882).

T.34 A Letter to Thomas F. Bayard: Challenging his Right - and that of all the Other Socalle

T.35 A Letter to Scientists and Inventors, on the Science of Justice, and their Right of Per

T.36 A Letter to Grover Cleveland, on his False Inaugural Address, the Usurpations and Crime

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