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THE
UNCONSTITUTIONALITY
OF
SLAVERY.
BY LYSANDER SPOONER.
BOSTON:
PUBLISHED BY BELA MARSH,
NO. 25 CORNHILL.
1845.
ENTERED according to Act of Congress, in the year 1845, by LYSANDER
SPOONER, in the Clerk's Office of the District Court of Massachusetts.
DOW & JACKSON'S ANTI-SLAVERY PRESS.
CONTENTS.
CHAPTER I.--WHAT IS LAW? PAGE 5
" II.--WRITTEN CONSTITUTIONS, 18
" III.--THE COLONIAL CHARTERS, 24
" IV.--COLONIAL STATUTES, 36
" V.--THE DECLARATION OF INDEPENDENCE, 42
" VI.--THE STATE CONSTITUTIONS OF 1789.
(MEANING OF THE WORD "FREE,") 46
" VII.--THE ARTICLES OF CONFEDERATION, 61
" VIII.--THE CONSTITUTION OF THE UNITED STATES, 65
" IX.--THE INTENTIONS OF THE CONVENTION, 135
" X.--THE PRACTICE OF THE GOVERNMENT, 145
" XI.--THE UNDERSTANDING OF THE PEOPLE, 147
" XII.--THE STATE CONSTITUTIONS OF 1845, 150
" XIII.--THE CHILDREN OF SLAVES ARE BORN FREE, 153
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 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 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 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 of 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 any body 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.[1]
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 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 any thing, 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,) any
thing in violation of natural justice, or the natural 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 every where 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
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 any thing, 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.
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 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, 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.
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.[2]
[Footnote 1: 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.]
[Footnote 2: 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 every where, 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._
"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 naturae 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 State's 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 laws
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._
All the foregoing definitions of law, rights and natural liberty,
although some of them are expressed in somewhat vague and indefinite
terms, nevertheless recognize the 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 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 every thing, 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 developement
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.]