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THE

UNCONSTITUTIONALITY

OF

SLAVERY.

BY LYSANDER SPOONER.

BOSTON:

PUBLISHED BY BELA MARSH,

NO. 25 CORNHILL.

1845.


ENTERED according to Act of Congress, in the year 1845, by LYSANDER
SPOONER, in the Clerk's Office of the District Court of Massachusetts.


DOW & JACKSON'S ANTI-SLAVERY PRESS.




CONTENTS.


CHAPTER I.--WHAT IS LAW?                              PAGE 5

   "   II.--WRITTEN CONSTITUTIONS,                        18

   "  III.--THE COLONIAL CHARTERS,                        24

   "   IV.--COLONIAL STATUTES,                            36

   "    V.--THE DECLARATION OF INDEPENDENCE,              42

   "   VI.--THE STATE CONSTITUTIONS OF 1789.
              (MEANING OF THE WORD "FREE,")               46

   "  VII.--THE ARTICLES OF CONFEDERATION,                61

   " VIII.--THE CONSTITUTION OF THE UNITED STATES,        65

   "   IX.--THE INTENTIONS OF THE CONVENTION,            135

   "    X.--THE PRACTICE OF THE GOVERNMENT,              145

   "   XI.--THE UNDERSTANDING OF THE PEOPLE,             147

   "  XII.--THE STATE CONSTITUTIONS OF 1845,             150

   " XIII.--THE CHILDREN OF SLAVES ARE BORN FREE,        153




THE
UNCONSTITUTIONALITY OF SLAVERY.




CHAPTER I.

WHAT IS LAW?


Before examining the language of the Constitution, in regard to Slavery,
let us obtain a view of the principles, by virtue of which _law_ arises
out of those constitutions and compacts, by which people agree to
establish government.

To do this it is necessary to define the term _law_. Popular opinions
are very loose and indefinite, both as to the true definition of law,
and also as to the principle, by virtue of which law results from the
compacts or contracts of mankind with each other.

What then is LAW? That law, I mean, which, and which only, judicial
tribunals are morally bound, under all circumstances, to declare and
sustain?

In answering this question, I shall attempt to show that law is an
intelligible principle of right, necessarily resulting from the nature
of man; and not an arbitrary rule, that can be established by mere will,
numbers or power.

To determine whether this proposition be correct, we must look at the
_general_ signification of the term _law_.

The true and general meaning of it, is that _natural_, permanent,
unalterable principle, which governs any particular thing or class of
things. The principle is strictly a _natural_ one; and the term applies
to every _natural_ principle, whether mental, moral or physical. Thus
we speak of the laws of mind; meaning thereby those _natural_, universal
and necessary principles, according to which mind acts, or by which it
is governed. We speak too of the moral law; which is merely an universal
principle of moral obligation, that arises out of the nature of men, and
their relations to each other, and to other things--and is consequently
as unalterable as the nature of men. And it is solely because it is
unalterable in its nature, and universal in its application, that it is
denominated law. If it were changeable, partial or arbitrary, it would
be no law. Thus we speak of physical laws; of the laws, for instance,
that govern the solar system; of the laws of motion, the laws of
gravitation, the laws of light, &c., &c.--Also the laws that govern the
vegetable and animal kingdoms, in all their various departments: among
which laws may be named, for example, the one that like produces like.
Unless the operation of this principle were uniform, universal and
necessary, it would be no law.

Law, then, applied to any object or thing whatever, signifies a
_natural_, unalterable, universal principle, governing such object or
thing. Any rule, not existing in the nature of things, or that is not
permanent, universal and inflexible in its application, is no law,
according to any correct definition of the term law.

What, then, is that _natural_, universal, impartial and inflexible
principle, which, under all circumstances, _necessarily_ fixes,
determines, defines and governs the civil rights of men? Those rights of
person, property, &c., which one human being has, as against other human
beings?

I shall define it to be simply _the rule, principle, obligation or
requirement of natural justice_.

This rule, principle, obligation or requirement of natural justice, has
its origin in the natural rights of individuals, results necessarily
from them, keeps them ever in view as its end and purpose, secures their
enjoyment, and forbids their violation. It also secures all those
acquisitions of property, privilege and claim, which men have a
_natural_ right to make by labor and contract.

Such is the true meaning of the term law, as applied to the civil rights
of men. And I doubt if any other definition of law can be given, that
will prove correct in every, or necessarily in any possible case. The
very idea of law originates in men's natural rights. There is no other
standard, than natural rights, by which civil law can be measured. Law
has always been the name of that rule or principle of justice, which
protects those rights. Thus we speak of _natural law_. Natural law, in
fact, constitutes the great body of the law that is _professedly_
administered by judicial tribunals: and it always necessarily must
be--for it is impossible to anticipate a thousandth part of the cases
that arise, so as to enact a special law for them. Wherever the cases
have not been thus anticipated, the natural law prevails. We thus
politically and judicially _recognize_ the principle of law as
originating in the nature and rights of men. By recognizing it as
originating in the nature of men, we recognize it as a principle, that
is necessarily as immutable, and as indestructible as the nature of man.
We also, in the same way, recognize the impartiality and universality of
its application.

If, then, law be a natural principle--one necessarily resulting from the
very nature of man, and capable of being destroyed or changed only by
destroying or changing the nature of man--it necessarily follows that it
must be of higher and more inflexible obligation than any other rule of
conduct, which the arbitrary will of any man, or combination of men, may
attempt to establish. Certainly no rule can be of such high, universal
and inflexible obligation, as that, which, if observed, secures the
rights, the safety and liberty of all.

Natural law, then, is the paramount law. And, being the paramount law,
it is necessarily the only law: for, being applicable to every possible
case that can arise touching the rights of men, any other principle or
rule, that should arbitrarily be applied to those rights, would
necessarily conflict with it. And, as a merely arbitrary, partial and
temporary rule must, of necessity, be of less obligation than a natural,
permanent, equal and universal one, the arbitrary one becomes, in
reality, of no obligation at all, when the two come in collision.
Consequently there is, and can be, correctly speaking, _no law but
natural law_. There is no other principle or rule, applicable to the
rights of men, that is obligatory in comparison with this, in any case
whatever. And this natural law is no other than that rule of natural
justice, which results either directly from men's natural rights, or
from such acquisitions as they have a _natural_ right to make, or from
such contracts as they have a _natural_ right to enter into.

Natural law recognizes the validity of all contracts which men have a
_natural_ right to make, and which justice requires to be fulfilled:
such, for example, as contracts that render equivalent for equivalent,
and are at the same time consistent with morality, the natural rights of
men, and those rights of property, privilege, &c., which men have a
natural right to acquire by labor and contract.

Natural law, therefore, inasmuch as it recognizes the natural right of
men to enter into obligatory contracts, permits the formation of
government, founded on contract, as all our governments profess to be.
But in order that the contract of government may be valid and lawful, it
must purport to authorize nothing inconsistent with natural justice, and
men's natural rights. It cannot lawfully authorize government to destroy
or take from men their natural rights: for natural rights are
inalienable, and can no more be surrendered to government--which is but
an association of individuals--than to a single individual. They are a
necessary attribute of man's nature; and he can no more part with
them--to government or any body else--than with his nature itself. But
the contract of government may lawfully authorize the adoption of
means--not inconsistent with natural justice--for the better protection
of men's natural rights. And this is the legitimate and true object of
government. And rules and statutes, not inconsistent with natural
justice and men's natural rights, if enacted by such government, are
binding, on the ground of contract, upon those who are parties to the
contract, which creates the government, and authorizes it to pass rules
and statutes to carry out its objects.[1]

But natural law tries the contract of government, and declares it lawful
or unlawful, obligatory or invalid, by the same rules by which it tries
all other contracts between man and man. A contract for the
establishment of government, being nothing but a voluntary contract
between individuals for their mutual benefit, differs, in nothing that
is essential to its validity, from any other contract between man and
man, or between nation and nation. If two individuals enter into a
contract to commit trespass, theft, robbery or murder upon a third, the
contract is unlawful and void, simply because it is a contract to
violate natural justice, or men's natural rights. If two nations enter
into a treaty, that they will unite in plundering, enslaving or
destroying a third, the treaty is unlawful, void, and of no obligation,
simply because it is contrary to justice and men's natural rights. On
the same principle, if the majority, however large, of the people of a
country, enter into a contract of government, called a constitution, by
which they agree to aid, abet or accomplish any kind of injustice, or to
destroy or invade the natural rights of any person or persons
whatsoever, whether such persons be parties to the compact or not, this
contract of government is unlawful and void--and for the same reason
that a treaty between two nations for a similar purpose, or a contract
of the same nature between two individuals, is unlawful and void. Such a
contract of government has no moral sanction. It confers no rightful
authority upon those appointed to administer it. It confers no legal or
moral rights, and imposes no legal or moral obligation upon the people
who are parties to it. The only duties, which any one can owe to it, or
to the government established under color of its authority, are
disobedience, resistance, destruction.

Judicial tribunals, sitting under the authority of this unlawful
contract or constitution, are bound, equally with other men, to declare
it, and all unjust enactments passed by the government in pursuance of
it, unlawful and void. These judicial tribunals cannot, by accepting
office under a government, rid themselves of that paramount obligation,
that all men are under, to declare, if they declare any thing, that
justice is law; that government can have no lawful powers, except those
with which it has been invested by lawful contract; and that an unlawful
contract for the establishment of government, is as unlawful and void as
any other contract to do injustice.

No oaths, which judicial or other officers may take, to carry out and
support an unlawful contract or constitution of government, are of any
moral obligation. It is immoral to take such oaths, and it is criminal
to fulfil them. They are, both in morals and law, like the oaths which
individual pirates, thieves and bandits give to their confederates, as
an assurance of their fidelity to the purposes for which they are
associated. No man has any moral right to assume such oaths; they impose
no obligation upon those who do assume them; they afford no moral
justification for official acts, in themselves unjust, done in pursuance
of them.

If these doctrines are correct, then those contracts of government,
state and national, which we call constitutions, are void, and unlawful,
so far as they purport to authorize, (if any of them do authorize,) any
thing in violation of natural justice, or the natural rights of any man
or class of men whatsoever. And all judicial tribunals are bound, by the
highest obligations that can rest upon them, to declare that these
contracts, in all such particulars, (if any such there be,) are void,
and not law. And all agents, legislative, executive, judicial and
popular, who voluntarily lend their aid to the execution of any of the
unlawful purposes of the government, are as much personally guilty,
according to all the moral and legal principles, by which crime, in its
essential character, is measured, as though they performed the same acts
independently, and of their own volition.

Such is the true character and definition of law. Yet, instead of being
allowed to signify, as it in reality does, that natural, universal and
inflexible principle, which has its origin in the nature of man, keeps
pace every where with the rights of man, as their shield and protector,
binds alike governments and men, weighs by the same standard the acts of
communities and individuals, and is paramount in its obligation to any
other requirement which can be imposed upon men--instead, I say, of the
term law being allowed to signify, as it really does, this immutable and
overruling principle of natural justice it has come to be applied to
mere arbitrary rules of conduct, prescribed by individuals, or
combinations of individuals, self-styled governments, who have no other
title to the prerogative of establishing such rules, than is given them
by the possession or command of sufficient physical power to coerce
submission to them.

The injustice of these rules, however palpable and atrocious it may be,
has not deterred their authors from dignifying them with the name of
_law_. And, what is much more to be deplored, such has been the
superstition of the people, and such their blind veneration for physical
power, that this injustice has not opened their eyes to the distinction
between law and force, between the sacred requirements of natural
justice, and the criminal exactions of unrestrained selfishness and
power. They have thus not only suffered the name of law to be stolen,
and applied to crime as a cloak to conceal its true nature, but they
have rendered homage and obedience to crime, under the name of law,
until the very name of law, instead of signifying, in their minds, an
immutable principle of right, has come to signify little more than an
arbitrary command of power, without reference to its justice or its
injustice, its innocence or its criminality. And now, commands the most
criminal, if christened with the name of law, obtain nearly as ready an
obedience, oftentimes a more ready obedience, than law and justice
itself. This superstition, on the part of the people, which has thus
allowed force and crime to usurp the name and occupy the throne of
justice and law, is hardly paralleled in its grossness, even by that
superstition, which, in darker ages of the world, has allowed falsehood,
absurdity and cruelty to usurp the name and the throne of religion.

But I am aware that other definitions of law, widely different from that
I have given, have been attempted--definitions too, which practically
obtain, to a great extent, in our judicial tribunals, and in all the
departments of government. But these other definitions are nevertheless,
all, in themselves, uncertain, indefinite, mutable; and therefore
incapable of being standards, by a reference to which the question of
law, or no law, can be determined. Law, as defined by them, is
capricious, arbitrary, unstable; is based upon no fixed principle;
results from no established fact; is susceptible of only a limited,
partial and arbitrary application; possesses no intrinsic authority;
does not, in itself, recognize any moral principle; does not necessarily
confer upon, or even acknowledge in individuals, any moral or civil
rights; or impose upon them any moral obligation.

For example. One of these definitions--one that probably embraces the
essence of all the rest--is this:

That "law is a rule of civil conduct, prescribed by the supreme power of
a state, commanding what its subjects are to do, and prohibiting what
they are to forbear." _Noah Webster._

In this definition, hardly any thing, that is essential to the idea of
law, is made certain. Let us see. It says that,

"Law is a rule of civil conduct, prescribed by the _supreme power_ of a
state."

What is "the supreme power," that is here spoken of, as the fountain of
law? Is it the supreme physical power? Or the largest concentration of
physical power, whether it exist in one man, or in a combination of men?
Such is undoubtedly its meaning. And if such be its meaning, then the
law is uncertain; for it is oftentimes uncertain where, or in what man,
or body of men, in a state, the greatest amount of physical power is
concentrated. Whenever a state should be divided into factions, no one
having the supremacy of all the rest, law would not merely be
inefficient, but the very principle of law itself would be actually
extinguished. And men would have no "rule of civil conduct." This result
alone is sufficient to condemn this definition.

Again. If physical power be the fountain of law, then law and force are
synonymous terms. Or, perhaps, rather, law would be the result of a
combination of will and