Anti-slavery bugle. [volume], April 02, 1847, Image 1

About Anti-slavery bugle. [volume] (New-Lisbon, Ohio) 1845-1861

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PUBLISHED EVERY FRIDAY AT
SALEM, COLUMBIANA CO,, OHIO.
JAMES BARXAnV, Jr., General .Igcnl.
BENJAMIN S. JONES, )
J. ELIZA 13 ETH JONES, h
HIToRS.
Pi'BMsiilNo Committee: Samuel Brooke,
James Barnaby, Jr., David L. Galbreath.
Lot Holmes.
From the National .A. S. Standard.
Lysander Spooner on the Unconstitutionality
of Slavery.
"DoMRSTIC Sl.AVERV IS THE MOST PROMI
NENT FEATL'RE IN THE AlllSTlirKATIC rill NTK
NANL'K Or THE PROPOSED Co.XSTITl'TION."
Gourcrnenr Morris in the Convention if 1787.
Mjdison Papers, litM.
We have read with attention the many co
lumns which Mr. Goodell has showered up
on us from various quarters, mid ran say,
with perfect sincerity, without meaning to be
satirical, that they contain nothing which
needs any noiice from us, or which can mis
lead a thoughtful reader of our previous cri
ticism. Next in order of time conies the Essay of
Lysander Spooncr on the Unconstitutionali
ty of Slavery. We shall hut fullil an old
promise in reviewing die argument it con
tains. Events beyond our control have de
layed us till now, which we regret only as it
seems to have led some of Mr. Spooner's ad
mirers to imagine that the delay proceeded
from nn unwillingness, on our part, to mea
sure lances with so skilful an adversary.
We exhort them, on the contrary, to believe
that we have no innate antipathy to the idea
of an Anti-Slavery Constitution that so far
from being obstinately wedded to our own
opinion, Mr. Spooncr, or any one cUe, shall
find in us a most ready, willing, and easy
convert to a doctrine, which will restore to
us the power of voting a right we much co
vet and a direct share in the Government of
the country a privilego we appreciate as
highly as any ono can. Only convince us
fairly and we will outdo Alvan Stewart him
self in glowing eulogy of this new found vir
tue of the American Constitution. Indeed
if merely believing the Constitution to bn
Anti-Slavery would really make it so, we
would be the last to stir tlio question. If
the beautiful theories of some of our friends
could oust from its place the ugly reality of
a pro-slavery administration, we would sit
quiet, and lut Spooner and Gnodell convert
the nation at their leisure. But alas, the
ostrich does not get rid of his enemy by
hiding his head in the sand. Slavery is not
abolished, although we have persuaded our
selves that it does not exist. The pro-slavery
clauses of the Northern Compact still
btand there in full operation, notwithstand
ing our logic. The Constitution will never
be amended by persuading men that it docs
not need amendment. National evils are on
ly cured hy holding men's eyes open, and
forcing them to gaze on the hideous reality.
To be able to meet a crisis men must under
stand and appreciate it.
All that we have to do, as .Ibolilionisls,
with Mr. Spooner's argument is to consider
its influences on the Anti-Slavery cause. He
maintains that the Judges if the I'niled Slates
Courts have the right to declare Slavery illegal,
and he pioposes that they should bo made to
do so. We believe that in part he mistakes
fancy for argument; in part he bases his con
clusions on a forced interpretation of legal
maxims, and that the rest of bis reasoning,
where not logically absurd and self-contradictory,
is subversive of all sound principles
of Government and of public faith. Anv
movement or party, therefore, founded on his
plan, would, so soon as it grew considerable
enough to attract public attention, be met by
the contempt and disapprobation of every en
lightened and honest man. To trust ourcause
with such a leader is to insure its shipwreck.
To keep, therefore, so far as our inlluenee ex
tends, the Anti-Slavery movement in its le
gitimate channel, to base it on such princi
ples as shall deserve and command the as
sent of every candid man, to hold up con
stantly beforn tlio nation the mirror of ils
own deformity, we undertake tbo distasteful
task of proving tlio Constitution hostile to us
and the slave.
It is but justice to Mr. Spooner to acknow
ledge that his performance dill'ers from most
of those which have preceded it, not only in
the ingenuity of the argument, hut in the
honest aim of the writer. With him " t'lo
wish " does not appear to have been " father
to the thought." Ho did not first found a
party and then stretch out both hands to
clutch something that would sustain him in
the right of voting at all. Ho did not violate
his own convictions, and then, obstinately
shutting his eyes cry out, " I don't see where
I am inconsistent." His logic does not grow
out of a lingering love of the ballot, or a se
cret desire lo put "non-resistance horn du
combat." He did not voie in order to save a
corrupt and trembling Church and shield it
from the storm of deserved rebuke, endeavor
to build an ark of political refuge out of legal
scraps and disjointed and misunderstood quo
tations. He seems to have persuaded him
self of the truth of his own theory, and then
to have thrown it out fearlessly to the world,
trusting in its truth to make it useful, mid
with no ulterior object or private end to
serve.
Before we touch on the argument of Mr.
Spooner's Essay, we wish to call attention to
two points :
1st. Allowing, for the moment, as he
claims, that the Constitution contains no
guarantee or recognition of Slavery and
granting him, also, in his own words:
" That the instrument was plain, and the
people had common-sense ; and thoso two
j'acts cannot stand together consistently with
the idea that there was any general or even
considerable misunderstanding of its mean
ing." (p. 126 ad Edition.)
We go on to ask, (of Abolitionists, not of
Mr. Spooner,) how comes it that, as be all
along confesses. Courts, Congress, and the
people have uniformly warped and twisted
the whole instrument aside and awry to serve
and sustain Slavery ! that the whole .Id min
istration of the Government, from its very
commencement, has been pro-slavery 1 If
the Constitution be guiltless of any blame in
this matter, then surely there must be seme
pnwerlul element at work in the Union llsell,
wliieli rend ef s it impossible for ibis to bo an
AMTM.AWROT
W l 5 11 k H V 12 r3 El H . H U H N
VOL. 2. NO. 33.
xo rsw.v injvr ai.:tn:iiou)i:ns."
SALEM, OHIO, FRIDAY, APRIL 2, 1,S 17.
WHOLE XO. ,S7.
Anti-Slavery milinn, even when blessed wilb
an .Inli-Surcry Constitution ; and the expe
rience of fifty years proves i'niim itself, un
der any form, to be impossible without guilt.
In such circumstances, no mailer what the
Constitution is. whether good or bad, it is
the duty of every honest man to join in the
war-cry of the American Anti-Slavery Socie
ty, "no I'nion n-i.'i Saee'io'deis." I'or if
we could not rscipe the infamy and the sin
of such a pro-slavery administration, as ours
always has been, under a ConstitutiiPii pore
as Mr. Spuoner describes ibis to be. then, as
wo never can have a better, we oujht lo ;jivo
up the experiment.
2il. As far as we can understand lii:n, Mr.
Spooner does nut deny the universal North
ern doctrine, that the Executive ollicers of
the Government are bound, while they retain
llu ir situations, to obey and execute the laws
in that manner and sense w hich the Supreme
Court deciJe and enjoin, fllis views of the
duty of the Supreme ('curt itself we have
slated and shall soon discuss. But from the
importance he attaches to lliem we have a
right to infer bis concurrence in the opinion
that the decisions of that Court are binding
on llie other departments of Government.
I'or if they are not so, of what consequence
is it what those decisions are! Of course
no ono has ever denied that the Supreme
Court now construes the Constitution in a
pro-slavery sense. 'I'll is, then, is the law of
ihe land unlit altered. Here again the posi
tion of tho American Anti-Slavery Society is
untouched. Kor whatever be the real cha
racter of the Constitution, if those who now
swear to support that instrument are huund to
support it in the sense which the Courts give
it. tlicti, surely, no Abolitionist can consist
entiy take such an oath or ask another person
to do so.
With neil'ier of these points lias Mr.
Spooner himself anything to do. He, we
believe, does not profess to bo an Abolition
ist; at least, in this Essay he considers the
question simply as a lawyer, without enter
ing into its further bearings. We suggest
them for the benefit of those Abolitionists
who try to bide themselves behind him, and
make a use of his argument which be never
intended, and probably would not sanction.
Mr. Spooner's first chapter is employed in
answering the question, " what is law I "
" That law, I mean, which, and which on
ly, judicial tribunals are morally bound, un
der all circumstances, to declare and sustain.
"In answering this question, I shall at
tempt 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, num
bers, or power." (p. 5, 'id Edition.)
His conclusion is, "that law is simply the
rule, principle, obligation, or requiieineut of
natural justice." (p. l.)
And finally be maintains:
" If, then, law really be nothing otlierthnn
tin! rule, principle, obligation, or require
ment of natural justice, It follows that go
vernment can have no powers except such as
individuals may rightful,' delegate to it; that
no law, inconsistent with men's natural rights,
can arise out of any contract or compact of
government : that constitutional Ion; under
any form of got eminent, cumins on,'; of thine
principle of Ihe written ( 'ons'ilutiou, that are
consistent leili natural lau; and man's natural
rights; and that any other principles, that
may bo expressed by the letter of any Con
stitution, are void and not law, and all judi
cial tribunals are bound to declare them so."
(p. 1 1, 2.1 Elition.)
Wo might pass Ibis chapter by without
n.itice as not concerning our inquiry, sineo
Mr. Spooner not only conducts his argument
afterward without reference to it, hut distinct
ly allows that a definition exactly the oppo
site of his is the t ne usually adopted by the
people, by Courts of Justice, and by Govern
ments. So that,
"The very name of law has come to sig
nify little moro than an arbitrary command
of power without reference to its justice or
its injustice; ils innocence or ils criminality."-,
a.)
Our only object is to abolish Slavery, and
not to correct the fundamental ideas which
men hold as to law cr Government; and
hence, all we have to do wilh law is lo find
out what it practical! is, ami then amend it
if we can. We might, therefore, we repeat,
pass this chapter hy, taking line to mean what
I ;Ur. tNpooner allows thai our Judicial tribu
nals, our Government, and Ihe general sense
I of the people have defined it to be, in the
words ho ipiotes from Noah Webster, "a
rule of civil cr.nduct prescribed by the Su
preme powt r of a Slate, commanding what
us sunjecis are 10 uo and prohibiting what
nicy are lo lorliear.
Or as Heiueccius describes it:
" Civil laws are the commands of ihe Su
premo power of a Stale."
Or as Chancellor Kent defines it:
" Municipal law is a rule of civil conduct
prescribed by the Supreme power in a Slate."
Or with Nathan Dane, the author of the
Ordinance of 1787 :
" Municipal or civil law is the rule of mu
nicipal or civil conduct prescribed tiv the su
perior power in the State coinmandin'r what
the Legislature deems right, and prohibitino
what it deems wrong."
Or with C. Justice Wilmot :
Statute law is the will of the Legislature
in writing common law is nothintr but stat
utes worn out by time."
Or with the Koman law, from which Mr.
Spooner takes some of his definitions :
"What the people command, lot that be
law." XII tables of Home.
"The will of the Prince, that is law."
Justinian's Inst.
"The rulo which each Slate chooses for
itself, that is the law of such State." Ibid.
We might extend these, but tbev am nnlu
! the varied expression of what Mr. Spooncr
i iWs is the generally accepted definition;
: further quotation is useless.
We shall, however, dwell awhile on this
chapter. Mr. Spooner himself draws ihe
line very clearly and fairly between his own
speculations and what he allows to be the
genera lly received definition, and never con
tuses tbo two. But ibat portion ol the Abo
litionists who are misled by his book, often
find their greatest difficulty in the points dis
cussed in this chapter. We shall endeavor
therefore to unravel it a little, since the views
it contains are not new, but have been lloat
ing a long time in tho Anli-Siavery horizon
and only spared because no one has cared
lo notice them.
Mr. Spooner's doctritto i, that "only
what is just and right is law." This propo
sition is both true and false, simply because
the word la,v has many meanings, like its
Latin synonym jus, which Dr. Taylor enys
(Eleni. Civil Law,) has forty significations.
The most usual source of mistake in argu
ment is the use of ambiguous terms. Now,
Mr. Spooner's proposition is true of ihe law
of Nature, w hich Cicero calls "right reason,
the same thing at .'Ithens as at Home ; " hut it
is false when applied to municipal, national,
civil law, which is olten a very dill'crent
thing at Louisville from wbal it is at Lon
don. It is with this civil law only that we
have to do in an argument like the present.
Mr. Spooner's quotations at the close of this
chapter, relato mostly to the law of Nature,
to law in its most comprehensive sense, or
the Ecier.ce of Justice ; such as Hooker's sub
limo poetry, assuring us ef law " that her
seat is in the bosom of GoJ, and her voice
the harmony of tho world."
This discussion, however, is a matter of
no consequence to tho argument. Leaving
it, therefore, let us consider Mr. Spooner's
main proposition. "Only that which is just,
is law, and all judicial tribunals arc bound
so to declare : " taking law to mean the rule
of civil affairs in a nation, the only sense of
the term with which this argument has any
thing to do.
In the first place a proposition may justly
bo suspected not to be sound, when the au
thor confesses in regard to it, as Mr. Spoon
cr does here, that, I
"It may make sad havoc wilh constitu
tions and statute books," and "il is possible.
perhaps, that this doctrine would spare
enough ol our existing Constitution to save
our Government') from llie necessity of a new
organization ! 1 "
Surely mankind cannot be presumed to
have so uniformly mistaken what lliey were
about, as to have uniformly set up Govern
ments, that were not legal in their own sense
of Ihe term! And as surely words must bo
interpreted according to the sense mankind
chose to put upon them, and not according
to Ihe caprice of an individual. Mr. Spooner
is at liberty to say that much of what the
world calls law, is not obligatory because it
is not just in the eye of God ; and there all
good men will agree with him. B it to as
sert that because a thing is not right it is net
law, as that term is commonly and rightfully
used, is entering into the question of what
constitutes the basis of government among
men; and according to a man's theory of
Government, will be his denial or assent to
the proposition. Does Mr. Spooner mean to
say merely, that a nation in making its laws
has no right, in the eye of God, to perpetrate
injustice! We agree wilh him. It is a doc
trine certainly as old as Cicero, and may be
traced through Grolius and Locke, and all
writers on the subject, down to Jefferson and
Channing. Nations are bound by ihe same
rule of right and wrong, as individuals:
agreed. Or does he mean to say that in set
tling what shall be the rule of civil conduct
the voice of the majority is not final and con
clusive, or its own ollicers in all the diiurl
ments of Government 1 Then we differ from
him, entirely, and assert that on his plan,
Government is impossible. An individual
may, and ought to resign his office, rather
than assist in a law he deems unjust. But
while he retains, under the majority, one of
their olfices, he retains it on their conditions,
which are, to obey and enforce their decrees.
There can be l.o more self-evident proposi
tion than that in every Government, the ma
jority must rule, and their will be uniform!
obeyed. Now, if the majority enact a wick
ed law, and the Judge refuses to enforce it,
which is to yield, the Judge or the majori
ty t Of course the first.
According to Mr. Spooncr, no provision
would be law until it bad secured the assent,
not only of tho Legislature the power ap
pointed to make laws but of the Judiciary
also the power appointed only to construe
and apply them. Apply this principle lo our
I'nion and it brings upon tlio present Con
stitution a similar disease to that which kill
ed the old Confederation, under which laws
were of no practical value unless Ihe several
States chose, to execute them. According to
Mr. Spooner, however, il is an evil insepara
ble from all forms of Government, since eve
ry decision of tbo National Legislature must
bo perpetually subject to the discretionary
power of every Court in Iho twenty-eight
Slates !
. " Only that which is just, is law, and all
judicial tribunals are bound so to declare."
This is Mr. Spooner's proposition. Grant,
for the purpose of this argument, that only
what is just is law. We allow that no laws
in support of slavery are morally binding.
I'ossibly Mr. Spooner means the same thing,
only expresses it more forcibly. The only
important point at issue is whin Govern
ments enact such laws, what is the proper
remedy ?
This question has been answered in three
ways.
1st. Old-fashioned patriotism replies with
Algernon Sydney, " Kesistance to tyrants is
obedience to God." Mr. Spooner states that
"the only duties any one owes to a wicked
Constitution, are disobedience, resistance,
destruction."
2d. Next comes the Christian rule, that
too sanctioned by Locke, and by Plato the
... ,UUfcers uie motto of the Ame
Tin-Art Ann VI ,., .
" "-iP!pjr oocieiy " fSi'BMiT to rv.
oi man" but suffer any pen
lty rather than join in doing a wrontr act ;
hieamvhile, let your loud protest prepare a
ppmly and quid revolution.
J 3d. Thirdly conies Mr. Spooner's plan:
' "If the majority, however large, of the
people of a country, enter into a contract of
.Government, called a Constitution, by which
they agree lo aid, abet, or accomplish any
Jiiiid ol injustice, this contract or government
is unlawliil and void and lor the samn rea
son that a contract of the same nature between
two individuals, is unlawful and void. Such
n contract of irovernuieiit nni.ft ra nn ;..i,i.
fiil authority upon those appointed to admin
ister it."
' "Judicial tribunals, sitting under the au
thority of this unlawful contract or Conslitu
ti.pii, are hound, equally wilh other mi n, to
dec I ire it, and all unjust enactments passed
by the Government in pursuance of it, unlaw
lul and void. These judicial tribunals can
not, by accepting oliice under a Government,
rid themselves of that paramount obligation,
that all men arc under, to declare, if they de
clare anything, that justice is law; that Go
vernment can have no lawful powers, except
those with which it has been invested by law
; lul contract ; and that an unlawful contract
for the establishment of Government, is as
unlawful and void as any other contract lo do
injustice."
" No oaths, which judicial or other officers
may take, to carry out anil support, an unlaw
lul contract or Constitution of Government,
are of any moral obligation." (p. 9.)
' Ami here begins Iho real and only impor
tant dispute between us. The reader may
torget, if he pleases, all wo have said. Mr.
Spooner's differences and our own, up to this
point, are mere questions of theory, h mat
ters little which side be adopted. His posi
tion now is;
That laws and Constitutions which vio
late justice, are void. They are as little
binding in the eye of tho law, as in the eve
fit i ... i ... . . .!
oi iiju. i ney are legally as well as morally
void :
So far we agree with him, brdifferso slight
ly, that hero we care not to dispute the mai
ler. He goes on :
A Judge holding office under such Constitu
tions is authorized and bound to treat them
as rwV, and to decide cases, not according to
iIiimii, but as li i 3 sense " of natural justice"
dictates.
Here we differ from him, maintaining that
the posilion oj the offeers of such a Government
differs from thai if private individuals, their
dull is to resign their post whenever unwilling
faftl the conditions on which they receive
them, and then, as MEN, treat the laws as void.
This question is not to be confounded with
one somewhat similar to it, and which has
been sometimes discussed, especially in Eng
land, whether a Judge there may disregard
an unjust statute 1 Our present tpiestion is
different, for it should be remembered that in
England thero is no written Constitution.
Even if a Judge had such powers there, wiiii n
he has not, it would by no means follow,
that ho had the same under our form of Go
vernment. I hero the Judge swears, simply
to hear Irue allegiance lo the King. It might,
therefore, with some plausibility, be argued
that having no test to which lo bring acts of
Parliament, except the rules of natural jus
tice, Judges were authorized to declare them
void when inconsistent wilh those rules.
Such a doctrine, however, is repudiated by
the almost unanimous voice of the English
law.
However the case may be in England,
here the case is different. Our Governi ient
is founded on contract. So agrees Mr. Spi on
er :
"The Constitution is a contract; a written
contract, consisting of a certain number of
precise words, to which, and to which only.
all the parties to it have, in theory, agreed.
i'tauiiesiiy neiiuer mis contract, nor tue mean
ing of its words, can be changed, without the
consent of all the parties to it." (p. 153.)
"A contract for the establishment of Go
vernment, being nothing but a voluntary con
tract between individuals for their mutual
benefit, differs in nothing that is essential to
its validity from any other contract between
man anil man, or butwecn nation and nation."
CP- 8.)
"Our Constitutions aro but contracts."
Note p. 8.
Under our Constitution then, thn neonlo
and the office-holder make a contract to"eih-
er. 1 hey grant him certain specified pow
ers, and demand of him certain specified du
ties, lie deliberately looks over the cata
logue (that is, the Constitution) assents lo
sweais mat lie agrees to it, and will per
form his pan and so takes ofiicoand acquires
power. That power, Mr. Spooner thinks, be
may retain while he refuses to perform iho
conditions on which ho received it; ami that
power, granted bun expressly, and only lor
the support of the Constitution, be is bound
to use for the destruction of that instrument.
Mr. Spooner's ground is that, " immoral con
tracts are void." Granted; but if they are
absolute nullities, then the Governments sup
posed to spring Irom them, du not exist, since
they have nothing to soring from. Accord
ingly, the supposed Judge is no Judge, and
has no authority to declare or decide avullnng.
As Mr. Spooner Rays, (p. !).) "Such a con
tract of Government confers no rightful au
thority upon those appointed to administer
ll. Ol course he would not have a Judge
uso a wrongful authority for any purpose.
Again. " immoral contracts uro not bind
ing." True. But if I reeeivo a sum of mo
ney, on my promise to commit murder, ami
afterward, my moral sense awakens, and 1 re
fuso to do the deed, docs that authorize me
to retain the money! Such a moral sense
would be a must accommodating one! nnd
such godliness might well bo " accounted
gain"!
Tho ruto plainly is that if power is put in
to our hands on certain conditions, and wo
hecoine.yWort any cause, unable or unwilling
lo fullil those conditions, wc ought lo surren
der back the power to those who granted it.
i, men-iitre, urn t onslitulion is pro-slavery,
(as Mr. Spooner and ourselves nui now suii-
fliiti-
posing it to be,) the Judges have agreed to
.... j'toiin pro-siaery acts, and they must
perlorm their whole contract, or yield up t,
power they received on that condition.
Judges are the people's servants, employed
to no certain nets. If ihey cannot do those
V'1 "l,B no lon!-"'' stewards."
I his argument seems lo us corn-It.' ive rs
it stantls. Jlul ftlr. Snooner's nrincinles eiv,.
it uuuiiinn :i lorce. Ilu savsdi .10 ... i.
; . . --- - v - r' 'i
lion, that
Here ot.ieo is not rrjven tt anv one be-
cause he has a right lo it, nor because it may
lim. It is eoiifi-rnvt nn.
on biiii, or ralhcr confided lo him, us a trust,
inn solely as n trust. Icir the sole benefit nl
the people (," the 1 nited Slates. The Presi-
cm, as i r' s ni, is not sui.iiosei lo leave
any rights in tho olliee. on bis own account;
or any riglils except what the people, lor their
own benefit, and not for his, have voluntarily
chosen lo grant to him."
If this be so if the President, or Judge,
uas no rigni 0111 wnal tin: people have grant
ed him, w ill Mr. Spooner affirm that Ihe peo
ple ever granted to anv Judje the riohl lo
disregard the pro-slavery clauses of their
LOnstiiiiiioi. ! 11 oliice lie "trust, and sole
ly a trust," is the trust-holder lo execute his
duty according to bis own views or i.ceordiier
to Ihe trust dctd !
Again, Mr. Goodc',1 bad maintained
Governments have certain inherent powers,
that, for instance, of abolishing Slavery,
and executing justice, &c. that these enter!
into Iho very idea of a Government and eve-
ry Government possesses them, whether spc-
cillcally granted to il or not ; but Mr. Spoon-
er (p. H.) scouts as " an imposture, ihe idea
ot any necessary or inherent authority or sove-!
reignty in our Government, as sucli" and
maintains that they aro limbing but "con-
If, then, they are only contracts,
ho explain where Judges get a power
which the other party to the contract never
meant to give them!
When, therefore, Mr. Spooner or any one
else has shown 113 an English Judge, for in-
stance, pulling aside an act of Parliament be-
cause ol us injustice, lie has not then reached
our ease. Let him show an English Judge
holding himself authorized to disregard I the
erms of the union between Scotland and Log-
land, and between Ireland and England, and
",0 ."'if 'ro n 11..111
Slo it ot the nosilion of an American Mains.
1 ...Ml 1 .i 1 , . .
Irate under our Constitution. Even thos
however, are not equally strong cases, for
such a Judge has never triirosh sworn to
maintain those compacts.
The royal oalh lo maintain "the church
established comes nearest lo our case, and
it is well known with what scrupulous anxie-
ty even the profligate Geo. IV. clung to w hat
lie lancleu Ills iluiy under mat.
" These Judicial tribunals, says Mr. Sponn-
er, cannot, by accepting office under a Gov-
eminent, nil themselves ol the paramount oh-:
ligation that all men are under to declare, if
they declare anything, thai juslieo is law."
" If tluu dirare anything ," that is a very
significant "if." Was lhc.ro a lurkin.r doubt
in the writer's mind whether our view was
not tho correct c:;e ? w hether Judges bad a
ngbt to "dtclaie anything" in such circuin-
stances ! If there was let him cherish it.
True, such Judges cannot rid themselves, as
ifi, "of the paramount obligation lo declare,
if they declare any thing, that juslieo is law.'
lint ll is as men, as simple individuals, mills
in the sight of God, that this " paramount ob
ligation" tests upon lliem. God knows them
nota': Judges. Their only " paramount oh-
ligation" as Judges, is lo do what they agreed
to do when Ihey were made Judges, or quit
llie Delicti. 1.0U Uoes not require ol any ol
his creatures to juggle their fellows out of the
gift of power, and ihen use ibat power con-:
trary to their promises, in order to serve bu-
inanity. That weiu to ask " robbery for burnt
offering."
But pulling out of view this point of con-
tract, between the people and their servants,
we maintain that such a line tf judicial duty
is inconsistent wilh the existence of uniform
and regular Government. It is the first step
toward anarchy.
"Only what is just and right is law."
Granted, hut who is to decide what is just
and right! We say that for the purpose of
the cieil government if any nation, the major-
ity of that nation is to decide, and their de-
cision is final, and constitutes for that nation
law. JUr. spooncr Hunks not; he Hunks
that each Judge is to decide for liimso'f and
act accordingly. We bay that a uniform Go-
vernmeut is impossible on Ibis plan. "Sta-
tnles, says Webster, are but recommenda
tions, if each man is to construe them as he
pleases." (Juol homines, tot sentenliu; (many
men many minds.) Law would be one thing
in Maine and another thing in Maryland
one thing to-day, another thing to-morrow.
And each day and each Court would think
itself infallibly right. "Orthodoxy is my
doxy," said the English Bishop. " fly right
rr.ison. savs Atterliurv. everv ono won III Iih
willing lo mean Lis uwn. " Discourses
about Natural Law," says another eminent
writer, "are the fullest of mistakes and most
liable to error." Let us look at it. In theso
United States somu think that neither men
nor nations have the right to make war lo
takn life hy iho gallows lo authorize the
holding of the soil as individual property
to debar women from tho right of voting.
One not inconsiderable sect holds that Ihe
magistrate should enforce theological ortho-
doxy. Will Mr. Spooner inform us on bis
principle what is law on each of these points ;
and also what a Judge in such case is to pro
nounce i lie win not, 01 course, maintain
that a principle is right merely because iho
majority entertain it. A vote-receiver is sit
ting at the ballot-box ; a woman appears nnd
oners him a vote. Ills own opinion is that
natural law, "tue rule 01 natural justice,"
... ... ... . J. . '
obliges him to reeeivo it. Urn majority have
.1.1 t.;. i.... ,....'.i: . .1...
told bin,, by sprcmc statute, to reec.ve the
void of men
.only. l.icl,w,yi;,l;ctoact!
QtjT.'JH rcmiltanceti tn be made, anil all lefttrl
relating tn the pecuniary njfairii of the paptrt
In be addressed (post paid) Mr General
.Qgcnt. Communications intended for inset'
lion to be addressed to Ihe l '.ditors.
07" Terms: 1,50 per annum, or $1,75
(invariably reiuired) if not paid i ill i n six
months of tho lime of snbscr bing.
AnvKiiTiKKMKftTS making less than a square
inserted three limes for 75 cents: one
Bquare fl.
Printed Ihe Publishing Committee hy
G. N. HAPGOOD.
jority have ordered him, by specific statute,
j Nll(.i, eil!e n,n,! and provided, to doom the
culprit lo the gallows. How is be to act
Which is "law" lo him 1 We say to him,
quit iho bench ralhcr than violate your con
"'V"' M.:,.m.,.. Mr. Sj.ooner instructs him that nil
laws inconsistent wilh natural justice are
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that'".''' "" Anti-Slavery provision, " a bounty rn
I 1'1,L'r,.v ;in attempt to promote the Anli-Sla-as
I Vi rv "'',f." Mr. Spooner thinks just the
ri'v,'ts''- Which way shall Ihe poor Judge,
I s,'"'cl1 "f natural low, interpret the clause!
le.cidit in fcyllani enpieus vitare Charybdin.
I f ,c steers clear of Spooner one way. he
is sure lo run foul of Smith the oilier. How
grateful will he be to the author for Beliin.'
j ,im clear of the "old chaos of conflictin'r
edicts," and introducing him to such a " na
tracts. tnnil, unalterable, universal, simple, inlelli
will gihle principle," which supercedes all other
, .,w, and " is necessarily the
If Mr. Spooner, to ifcape il.is dilemma,
shall explain his principle to mean that a
J J,,,gB js to decide, not accordin" to bis own
I individual idea of ib.hl, bill ihe general sense
of the age or nation in which he lives, we
j hardly care to dispute such a proposition with
j hini-for it is of little practical importance;
sinr j ,,e words ifit, statute-t,ook K each
I mn.ristratn nlnav. t,A i,.,, ;r. .1
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Which is " law" to him 1 A Judge is sitting
on the bench the jury find the prisoner guil-
I nf ii.Mn rr llii nwn nnlnlnn l Hint nn
Government has n right tn take life ihe rua-
oeciare tot'iil s... .-vccoriiiii 1 , as f ptv man a
nu n -nii....i.'iirr is. I'.ir tin. 'lime ln pii.r. Iii
1 .1 . .... ... i:..-i ..
hi"! esi and bo'ii st eniile. 1:0 must fel tin bis
own idea of right ; and as of old, cverv limit's
b-nt role was rci.ulated l.v the lenr lb tit' ibn
reigning King's foot, so "now Judgi.s are to
revi r-c iho ml vice of Lord Coke and !
guided hy the croel ed cord of discretion, anil
not l.v the .'oiilen mctwaud (vard-slu k) of Ihe
law." "
Cicero, t!'e k;.'.', mi, inaii.t ins that for n
men haul in lime of laniine to conceal llie fact
that a plenty t f niain will come to-morrow.
l,,us i.rr";' a high price ;o-day cut of tho
fuiivmg pcopic, is contrary 10 natural jus
tice." Pali y, the christian, thinks such con
duct right. It' such a sale is brought beforn
Mr. Spaiener, to be enforced, which w: y will
he decide! What is law 1 this eternal, un
alterable, unmistakable law, be so much prai
ses. Gerrit Smiih thinks the three-fifth slave ha-
1 r - .w u.ji, ,i , ,C ,i,.
y evi.lenee nl what 7ns nation thinks just and
i.ti. 1 ,, ..... 1
ngnr. 1 no laws," says Aristotle, "are the
morals of llie Stato and the character of the
whole people taken collectively." If Mr.
Spooner should feel disposed to appeal from'
Ihe decision of one nation to the general sense
of Christendom, be will find thai there never
was a sin, for which any Judge, desirous of
snppoi ting it, could not find abundance of phi
losophers lo uphold him in thinking it right;
and surely Slavery at present, finds many
such, boih in Church and State. Hence, 011
either plan there could be no uniform and
regular I .overiiuient.
We shall conclude our discussion of this
point by show ing thai llie almost unanimous.
". !1jl ."naiiimous voico of lawyers and judi-
c1;" '"ll";'ls repudiates this power. Our
lAU'"-la " ' "raw n iroin as many dilUrent
s"u.rct,s a8 possib.e, br cause it has been a fa-
" i.ioeny party uenaiers anil
olllrs 10 maintain that all acts of Parliament
or V' .'uly. lp!ruI.Hive body, contrary to reason
anu JusllCP ""' void, and that Judges may
treal them as such a proposition identical
with Mr. Spooner's, and clearly not sound.
This doctrine is usually sustained bv dis
connected quotations from Blackslone, ninonn-
" " ",c generally occupies tlio
place:
'This law of nature being coeval with
maiikinu, ami nicialed by t.oU liiinsi If, is of
course superior in obligation to any other. It
's binding over all 1 tie globe, in all countries,
al11' "t all times: no human laws are of any
'validity, if contrary to this; and eurlt of
I them as are valid, derive all their force, and
" their authority mediately or immediate-
ly, from this original." Blackstone, Vol. 1,
p. 11.
It will be observed that Blackstone only
asserts that bad laws are void, without touch
ing the question of tlio remedy in such case,
or whether Judges may declare and treat them
so. Ills able commentator. Prof. Christian.
in a note on this passage, discusses this
point, and decisively rejects the doctrine. lie
siys:
lt- an act of parljamen, sll0ulj like ,
r tt..i .11 .1:1 1 .. .
a certain ago to be slain, the Judge ought to
resign his office rather ihan be auxiliary to
its execution; but il could uny be declared
, void ly the same legislative power by which it
was oruaincd.
I Willi this, the other commentators, Chilly
and the rest, agree. Sedgwick unites with
them in the same opinion. Woodeson, Black
stone's second successor in his professional
chair, adds his assent in these words:
" We cannot expect that all acts of legis
lators will be ethically perfect; but if their
proceeuings nre to uo tleciueu upon by their
subjects, Government and subordination
-,,ase. Intty s iilackslone note, p. 11.
V El. Jur. 48.
Blackstone himself, in a subsequent page
of his work, distinctly denies the doctrino
which some might infer from the general
terms he had used above. On the Olsl pa.'e
of bis volume, he savs: 0
1 1. ; 11.. 1 1 1
,,,;. " ,.. ., . " . mr'4
reason, are void. But if the Parliament will
n-'j. ... u. iiiuiiriii, couuary 10
positively enact a thing to be done which is
unreasonable, I know of no power, in the or
dinary forms of the Constitution, that is ves
ted with authority to control it; and tho ex
amples usually alledged in support of this
.i,, ,,.!,
mo rute, uo none ot mom prove.
re the main vhjeel of a statute is 11 n-
r.lu,111.,i,iu ,1... 1., 1 ,.' . , . -.
reasouanie, tuo Judges are at liberty to n-iert
; . rr ,1.., .... " ', . , . J
11 ' lor "M Mte to 6ct the ludieial nower
..bovo , . . , - -. " "
judicial power
: u 5uh,ttivc of a (;0VCII1 ' ; V .