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 [Pg 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; [Pg 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 [Pg 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 [Pg 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.[4]
[4] It may have very weighty moral obligation; but it can have no legal obligation.
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.
[Pg 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 [Pg 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.
[Pg 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.
[Pg 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.
[Pg 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 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, [Pg 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 [Pg 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.
[Pg 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, had 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.[Pg 71]It was at such a time, and in such circumstances, that congress was called upon to devise means to 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 and 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 [Pg 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. [Pg 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 [Pg 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 [Pg 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 if 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 [Pg 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, [Pg 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.
[Pg 78]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 [Pg 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 [Pg 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). Juilliard 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 [Pg 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.
[Pg 82]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, [Pg 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 [Pg 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.
[Pg 85]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,
[Pg 86]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.
[Pg 87]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 [Pg 88]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.
[Pg 89]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 man's natural rights, not from the constitution of the United States, nor even from any constitution affirming [Pg 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 [Pg 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 [Pg 92]commerce that is intrinsically unjust and unlawful, is prohibited, then commerce is regulated, and not before.[5]
[5] The above extracts are from a pamphlet published by me in 1864, entitled "Considerations for Bankers," etc., pp. 55, 56, 57.
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 [Pg 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 [Pg 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 [Pg 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 [Pg 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.
[Pg 97]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 [Pg 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.[6]
[6] 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.
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.
[Pg 99]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:
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: [Pg 100]
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.)
[Pg 101]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 [Pg 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."
[Pg 103]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 lawmaking 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, [Pg 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 [Pg 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 [Pg 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 [Pg 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 [Pg 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 [Pg 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 [Pg 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.
Transcriber's Notes:
On page 22, there was the use of double quotation marks within double quotation marks. That usage was not changed.
On page 43, "at bank" was replaced "at a bank".
On page 60, "viz., 1," was replaced with "viz., 1.".
On page 65, a period as added after "indebted to".
On page 105, "viz." was italized.
End of Project Gutenberg's A Letter to Grover Cleveland, by Lysander Spooner
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