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 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.
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 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 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."
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!
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?